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Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins 2019 William & Mary Law School

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Neal E. Devins

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims ...


Congress, Civil Liberties, And The War On Terrorism, Neal Devins 2019 William & Mary Law School

Congress, Civil Liberties, And The War On Terrorism, Neal Devins

Neal E. Devins

In exercising his war-making powers, the President has historically pursued war-related initiatives that implicate civil liberties. Meanwhile, the Congress, with little incentive to resist these initiatives, has played a steadily declining role in warmaking. In this Essay, Professor Devins examines this dynamic, and argues that with Congress largely standing on the sidelines as the President leads the nation in war, it is the American public that has become the principal check on the powers of the President in wartime.


Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins 2019 William & Mary Law School

Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


Abdication By Another Name: An Ode To Lou Fisher, Neal Devins 2019 William & Mary Law School

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

Neal E. Devins

No abstract provided.


Bring Back The Draft?, Neal Devins 2019 William & Mary Law School

Bring Back The Draft?, Neal Devins

Neal E. Devins

No abstract provided.


Congressional Administration Of Foreign Affairs, Rebecca Ingber 2019 Boston University School of Law

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does ...


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers 2019 Selected Works

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Jeffrey Lubbers

No abstract provided.


On Environmental, Climate Change & National Security Law, Mark P. Nevitt 2019 University of Pennsylvania Law School

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

Faculty Scholarship at Penn Law

This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement ...


Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies 2019 Roger Williams University School of Law

Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Presidential War Powers And Humanitarian Intervention, Michael J. Sherman 2019 Pace University

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The ...


Regulatory Review In Anti-Regulatory Times, Daniel A. Farber 2019 UC Berkeley School of Law

Regulatory Review In Anti-Regulatory Times, Daniel A. Farber

Daniel A Farber

This article investigates the role of cost-benefit analysis during an antiregulatory period. The period since 2016 has seen several new developments, including the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. This period also contains important examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of ...


Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters 2019 University of Pennsylvania Law School

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Daniel Walters

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of ...


The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters 2019 University of Pennsylvania

The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Daniel Walters

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and ...


Cybersecurity Paradigm Shift: The Risks Of Net Neutrality Repeal To Energy Reliability, Public Safety, And Climate Change Solutions, Catherine J.K Sandoval 2019 University of San Diego

Cybersecurity Paradigm Shift: The Risks Of Net Neutrality Repeal To Energy Reliability, Public Safety, And Climate Change Solutions, Catherine J.K Sandoval

San Diego Journal of Climate & Energy Law

This Article contends that the Federal Communications Commission’s (FCC) January 2018 repeal of net neutrality rules created a “zero-day” cybersecurity vulnerability for the energy sector and other criti¬¬¬cal infrastructure. “A zero-day cybersecurity vulnerability is a previously unknown flaw in a computer program that exposes the program to external manipulation.” The flaw may also reside in compromised hardware that creates a “back door” into the internet-connected device. This Article argues that cybersecurity has been primarily viewed from a “hacker paradigm” that obscures systemic threats an Internet Service Provider (ISP) can create to energy reliability and cybersecurity through paid priority ...


Interpreting Emoluments Today: The Framers’ Intent And The “Present” Problem, Bianca Spinosa 2019 University of Maryland Francis King Carey School of Law

Interpreting Emoluments Today: The Framers’ Intent And The “Present” Problem, Bianca Spinosa

Maryland Law Review

No abstract provided.


The Fiduciary Obligations Of Public Officials, Vincent R. Johnson 2019 St. Mary's University School of Law

The Fiduciary Obligations Of Public Officials, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

At various levels of government, the conduct of public officials is often regulated by ethical standards laid down by legislative enactments, such as federal or state statutes or municipal ordinances. These rules of government ethics are important landmarks in the field of law that defines the legal and ethical obligations of public officials. Such provisions can form the basis for the kinds of government ethics training that helps to minimize wrongful conduct by public servants and reduces the risk that the performance of official duties will be clouded by appearances of impropriety. Codified government ethics rules also frequently provide mechanisms ...


The Legality Of President Trump's Missile Strike On Al-Shayrat Air Force Base In Syria, Jacob Behmer 2019 University of St. Thomas, Minnesota

The Legality Of President Trump's Missile Strike On Al-Shayrat Air Force Base In Syria, Jacob Behmer

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


America's Electoral Problem: The Shortcomings Of The Electoral College In Contemporary American Democracy, Alex Kaplan 2019 Trinity College

America's Electoral Problem: The Shortcomings Of The Electoral College In Contemporary American Democracy, Alex Kaplan

Senior Theses and Projects

Our Constitution mandates the president of the United States be elected through the electoral college, a mechanism originally engineered to be a compromise between a popular vote by qualified citizens and a vote by Congress. The electoral college existed without controversy up until the 21st century because it consistently produced a winning candidate which mirrored the popular vote, our contemporary perception of a democratic voting method. The legitimacy of the electoral college in the 21st century, however, has been called into question after two of the last five presidents have failed to win the popular vote. Critics of the institution ...


Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama 2019 Notre Dame Law School

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas ...


Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver 2019 Selected Works

Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver

Russell L. Weaver

No abstract provided.


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