Law Commons^™

The Shifting Border Of Immigration Regulation, Ayelet Shachar

Michigan Journal of International Law

While American immigration law is still largely informed by the doctrine of plenary power, which holds that "[a]dmission to the United States is a privilege granted by the sovereign" (as the Supreme Court asserted in Knauff more than fifty years ago), what has dramatically changed in recent years is the location of "our gates," which no longer stand at the country's territorial edges. Instead, the border itself has become a moving barrier, a legal construct that is not tightly fixed to territorial benchmarks. This shifting border of immigration regulation, as we might call it, is selectively utilized by national …

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss

Michigan Law Review

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch

University of Michigan Journal of Law Reform

The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been a …

Life After Adarand: What Happened To The Metro Broadcasting Diversity Rationale For Affirmative Action In Telecommunications Ownership?, Leonard M. Baynes

University of Michigan Journal of Law Reform

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court …

Loss Of Protection As Injury In Fact: An Approach To Establishing Standing To Challenge Environmental Planning Decisions, Miles A. Yanick

University of Michigan Journal of Law Reform

As currently interpreted by the United States Supreme Court, Article III of the Constitution creates a significant hurdle for plaintiff citizen groups seeking standing to challenge environmental planning or management decisions. In particular, plaintiffs have had difficulty in making the required showing of an 'injury in fact" where an agency has not yet approved a site-specific action but has approved only a general plan for an area to govern future site-specific actions. The Supreme Court has not articulated a clear rule for standing to challenge the latter type of agency decision making, and the courts of appeals for the various …

The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod

Michigan Law Review

Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Rationalizing Administrative Searches, Michigan Law Review

Michigan Law Review

At the outset, this Note examines the major decisions concerning administrative searches. Specifically, it traces the development of a warrant requirement and of the corresponding lower standard of probable cause announced in the Camara and See decisions. Subsequent modifications of that seemingly absolute rule are then analyzed. To develop a framework for evaluating administrative search cases, Section II groups those principal Supreme Court cases, along with pertinent lower court opinions, into three tiers of fourth amendment protection: administrative searches that require a warrant based on a traditional criminal standard of probable cause; administrative searches that require a warrant based on …

A Touchstone For Labor Board Remedies, Theodore J. St. Antoine

Articles

Fashion dictates what lawyers argue about, and law professors write about, more than we may care to admit. In labor law, especially, the styles change with a rapidity that would impress a Paris couturier. During the past decade the spotlight has moved from union democracy to labor contract enforcement to the union organizing campaign. Today the "in" topic is National Labor Relations Board (NLRB) remedies. Yet if any subject deserves immunity from the vagaries of fashion, this is the one; for all rights acquire substance only insofar as they are backed by effective remedies. Coke said it long ago: "[W]ant …