President/Executive Department Commons^™

The Myth Of Extraconstitutional Foreign Affairs Power, Michael D. Ramsey

William & Mary Law Review

No abstract provided.

Abdication By Another Name: An Ode To Lou Fisher, Neal Devins

Faculty Publications

No abstract provided.

Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo

Michigan Law Review

William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, …

Introduction To The Symposium: Executive Privilege And The Clinton Presidency, Iain R. Mcphie

William & Mary Bill of Rights Journal

No abstract provided.

Restoring Balance To The Debate Over Executive Privilege: A Response To Berger, Mark J. Rozell

William & Mary Bill of Rights Journal

In this Essay, Professor Rozell responds to Raoul Berger 's Executive Privilege: A Constitutional Myth. Berger's work claims that executive privilege does not have a constitutional basis. Addressing Berger's textual, historical, and structural arguments, Professor Rozell argues contrarily that executive privilege is a legitimate power when exercised properly and that to view executive privilege as a constitutional absolute is improper. As such, Professor Rozell recognizes the limits of executive privilege and suggests that it may be subject to a balancing test when weighed against demands for information. He argues that presidents should not use this power to protect information that …

Executive Privilege And Interbranch Comity After Clinton, Jonathan L. Entin

William & Mary Bill of Rights Journal

Although both constitutional theory and practical considerations offer powerful reasons for Congress and the President to prefer negotiation rather than litigation of separation of powers disputes, the Clinton Administration litigated and lost several important cases dealing with presidential power. Some commentators have suggested that these rulings will undermine the presidency for years after Clinton leaves office. Professor Entin assesses some factors, notably the phenomenon of divided government, that might have contributed to the difficulty of reaching interbranch accommodations in recent years and suggests that the long-term implications of the adverse judicial rulings may be less severe than the pessimists fear.

Invoking Executive Privilege: Navigating Ticklish Political Waters, Louis Fisher

William & Mary Bill of Rights Journal

In this Article, Louis Fisher acknowledges the constitutional legitimacy of executive privilege, but he argues that legal and political limits render the scope of the privilege narrower than what is commonly believed In support of his argument, he points to early precedents set during the Washington Administration and to congressional leverage over the executive branch. Though he recognizes the executive branch's interest in ensuring that information is disclosed through authorized channels and its concern about disclosures of information that may embarrass the administration or one of its agency's, he asserts that there is no legal or constitutionaI justification for concealing …

Executive Privilege: The Clinton Administration In The Courts, Neil Kinkopf

William & Mary Bill of Rights Journal

Exploring the role of the judicial branch of the federal government in Clinton-era executive privilege claims, Neil Kinkopf suggests that courts have misunderstood executive privilege. Professor Kinkopf points out that federal courts have given different treatment to executive privilege claims asserted in judicial and congressional arenas, protecting the Judiciary from encroachment by the executive branch, while avoiding becoming involved in controversies among the political branches. He argues that the judicial confusion about executive privilege stems from the fact that courts have interpreted cases such as Clinton v. Jones to be about the separation of powers between the executive and judicial …

The Public And Private Lives Of Presidents, Neal Kumar Katyal

William & Mary Bill of Rights Journal

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid. He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is office twenty-four hours a day. He argues that this special constitutional status puts …

Restoring The Balance Of Power: Impeachment And The Twenty-Second Amendment, James Randolph Peck

William & Mary Bill of Rights Journal

The recent proceedings against President William Jefferson Clinton brought Congress' impeachment power into the national spotlight. In the public debate on when it is appropriate for Congress to exercise this power, it is important to consider that the Framers gave this power to the legislature principally as a tool to maintain a balance of power between the legislative and executive branches of the federal government. Examining the debates at the Constitutional Convention, this Note details how the Framers deliberately sought to balance the President's term in office and eligibility for re-election with the Congress' impeachment power in order to prevent …

Presidential Power Grab Or Pure State Might? A Modern Debate Over Executive Interpretations On Federalism, Jennie Holman Blake

BYU Law Review

No abstract provided.

The Trial Of President William Jefferson Clinton: "Impartial Justice," The Court Of Impeachment And Ranked Vignettes Of Praiseworthy Senatorial Rhetoric, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Judicial Institutions In Emerging Federal Systems: The Marshall Court And The European Court Of Justice, 33 J. Marshall L. Rev. 1063 (2000), Herbert A. Johnson

UIC Law Review

No abstract provided.

The Scope Of 'High Crimes And Misdemeanors' After The Impeachment Of President Clinton, Neil J. Kinkopf

Faculty Publications By Year

Constitutional theorists have begun focusing a great deal of attention on constitutionalism outside the judiciary. As Professor Neal Katyal points out in his insightful paper, the impeachment and trial of President Clinton provide an outstanding opportunity to reflect upon the practice of constitutionalism outside the courts. During these episodes, the House of Representatives and the Senate confronted numerous constitutional questions, but rarely resolved them on the basis of an identifiable construction of the Constitution's meaning. There is, however, at least one important question of constitutional interpretation that the House of Representatives must be understood to have resolved: the scope of …

The Special Constitutional Structure Of The Federal Impeachment Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Perils Of Presidential Impeachment, Michael J. Gerhardt

Faculty Publications

No abstract provided.

A Case Study In The Intersection Of Law And Science: The 1999 Report Of The Committee Of Scientists, Charles F. Wilkinson

Publications

No abstract provided.

Can The Vice President Preside At His Own Impeachment Trial?: A Critique Of Bare Textualism, Joel K. Goldstein

All Faculty Scholarship

Turn the clock back for a moment to August 1973. In the midst of the burgeoning Watergate scandal, the nation discovered that Vice President Spiro T. Agnew was being investigated for allegedly accepting bribes from contractors, and for committing tax fraud while Governor of Maryland and Vice President. The investigation, by attorneys in the United States Attorneys Office in Maryland, ultimately gathered sufficient evidence to present to a grand jury. To avoid the spectre of likely indictment and prosecution, Agnew elected to resign his office and plead nolo contendere.[1]

But suppose Agnew had decided not to go quietly.[2] Instead of …

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information …

Word Games, War Games, Diane H. Mazur

Michigan Law Review

In 1993, the country's interest in the issue of military service by gay citizens escalated to a level that can only be described as a national obsession, and "obsession" is by no means too strong a term. The subject of gay servicemembers was debated within all three branches of government, all ranks of the military, and all walks of civilian life.1 The issue of military service by gay citizens became a line in the sand, a cultural standoff on issues as sensitive and disparate as sexuality, patriotism, civil rights, and civic obligation. Janet Halley2 returns to that time of obsession …

The Clinton Administration And War Powers, Lori Fisler Damrosch

Faculty Scholarship

The strongest of all governmental powers is the power to engage in war; and the strongest challenge for constitutionalism is to bring the war power of the state under meaningful control. The 1787 Constitution allocated some military powers to the Congress and others to the President as part of the scheme of constitutional checks and balances. To this day, however, the distribution of authority between the branches remains contested and uncertain.

The Clinton Administration has had substantial opportunity to contribute to the evolution of constitutional practice concerning war powers, by virtue of numerous occasions of combat deployments, cruise missile strikes, …

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Articles by Maurer Faculty

This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches …

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most daunting …