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Full-Text Articles in Law
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Faculty Scholarship
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …
The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman
The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman
Faculty Scholarship
The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.
In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …
Administrative Harms, Philip A. Hamburger
Administrative Harms, Philip A. Hamburger
Faculty Scholarship
Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Faculty Scholarship
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …
The Trump Administration And Administrative Law, Peter L. Strauss
The Trump Administration And Administrative Law, Peter L. Strauss
Faculty Scholarship
Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law
Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …
Our Regionalism, Jessica Bulman-Pozen
Our Regionalism, Jessica Bulman-Pozen
Faculty Scholarship
This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.
In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …
Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz
Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz
Faculty Scholarship
Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
Faculty Scholarship
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 …
Reverse Nullification And Executive Discretion, Michael T. Morley
Reverse Nullification And Executive Discretion, Michael T. Morley
Faculty Scholarship
No abstract provided.
Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis
Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis
Faculty Scholarship
This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Faculty Scholarship
No abstract provided.