Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 31
Full-Text Articles in Law
The President And Individual Rights, Mark Tushnet
The President And Individual Rights, Mark Tushnet
William & Mary Bill of Rights Journal
No abstract provided.
The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray
The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray
William & Mary Bill of Rights Journal
In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering …
The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison
The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison
William & Mary Bill of Rights Journal
The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …
Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown
Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown
William & Mary Bill of Rights Journal
Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the …
Standing, Politics, And Exhaustion: A Response To Legislative Exhaustion, Heather Elliott
Standing, Politics, And Exhaustion: A Response To Legislative Exhaustion, Heather Elliott
William & Mary Law Review Online
Professor Michael Sant’Ambrogio’s article, Legislative Exhaustion, usefully approaches the problem of “legislative standing” by abandoning the typical Article III standing analysis and making instead a separation-of-powers argument. His theory—that Congress may sue the President only when it has no legislative avenue for addressing its problems—provides both a workable account of and a limiting principle for suits by the legislative branch against the executive. His analysis, however, raises questions regarding the effect of legislative lawsuits on the constitutional balance of powers. This Essay suggests that these questions should be more fully explored before Professor Sant’Ambrogio’s approach can be adopted. It concludes …
The Transformative Twelfth Amendment, Joshua D. Hawley
The Transformative Twelfth Amendment, Joshua D. Hawley
William & Mary Law Review
Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college—and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive’s relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, …
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
William & Mary Bill of Rights Journal
No abstract provided.
An Unusual Separation Of Power Episode: Samantar V. Yousuf And The Need For The Executive Branch To Assert Control Over Foreign Official Sovereign Immunity Determinations, Laura Manns
William & Mary Bill of Rights Journal
No abstract provided.
Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler
Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler
William & Mary Law Review
No abstract provided.
Signing Statements And Divided Government, Neal Devins
Signing Statements And Divided Government, Neal Devins
William & Mary Bill of Rights Journal
No abstract provided.
Signing Statements: Constitutional And Practical Limits, Louis Fisher
Signing Statements: Constitutional And Practical Limits, Louis Fisher
William & Mary Bill of Rights Journal
No abstract provided.
Why The President Must Veto Unconstitutional Bills, Saikrishna B. Prakash
Why The President Must Veto Unconstitutional Bills, Saikrishna B. Prakash
William & Mary Bill of Rights Journal
No abstract provided.
The Unconstitutionality Of "Signing And Not-Enforcing", Michael B. Rappaport
The Unconstitutionality Of "Signing And Not-Enforcing", Michael B. Rappaport
William & Mary Bill of Rights Journal
No abstract provided.
Introduction: The Last Word? The Constitutional Implications Of Presidential Signing Statements, Charlie Savage
Introduction: The Last Word? The Constitutional Implications Of Presidential Signing Statements, Charlie Savage
William & Mary Bill of Rights Journal
No abstract provided.
Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane
Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane
William & Mary Bill of Rights Journal
No abstract provided.
Presidential Signing Statements In Perspective, Nelson Lund
Presidential Signing Statements In Perspective, Nelson Lund
William & Mary Bill of Rights Journal
No abstract provided.
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
William & Mary Bill of Rights Journal
No abstract provided.
The First Word, M. Elizabeth Magill
The First Word, M. Elizabeth Magill
William & Mary Bill of Rights Journal
No abstract provided.
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
William & Mary Bill of Rights Journal
No abstract provided.
Litigating Presidential Signing Statements, Michele Estrin Gilman
Litigating Presidential Signing Statements, Michele Estrin Gilman
William & Mary Bill of Rights Journal
No abstract provided.
The Presidential Signing Statements Controversy, Ronald A. Cass, Peter L. Strauss
The Presidential Signing Statements Controversy, Ronald A. Cass, Peter L. Strauss
William & Mary Bill of Rights Journal
No abstract provided.
Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper
Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper
William & Mary Bill of Rights Journal
No abstract provided.
The On/Off Switch, Philip Heymann
The On/Off Switch, Philip Heymann
William & Mary Bill of Rights Journal
No abstract provided.
Fee Shifting As A Congressional Response To Adventurous Presidential Signing Statements, Harold J. Krent
Fee Shifting As A Congressional Response To Adventurous Presidential Signing Statements, Harold J. Krent
William & Mary Bill of Rights Journal
No abstract provided.
A Matter Of Direction: The Reagan Administration, The Signing Statement, And The 1986 Westlaw Decision, Christopher S. Kelley
A Matter Of Direction: The Reagan Administration, The Signing Statement, And The 1986 Westlaw Decision, Christopher S. Kelley
William & Mary Bill of Rights Journal
No abstract provided.
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert Bloom, William J. Dunn
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert Bloom, William J. Dunn
William & Mary Bill of Rights Journal
In the past year, there have been many revelations about the tactics used by the Bush administration to prosecute its war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This Article focuses on the revelation and widespread criticism of the Bush administration's operation of a warrantless electronic surveillance program to monitor international phone calls and e-mails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence …
Congress, Civil Liberties, And The War On Terrorism, Neal Devins
Congress, Civil Liberties, And The War On Terrorism, Neal Devins
William & Mary Bill of Rights Journal
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.
The Founders And The President's Authority Over Foreign Affairs, H. Jefferson Powell
The Founders And The President's Authority Over Foreign Affairs, H. Jefferson Powell
William & Mary Law Review
No abstract provided.
Treading On Sacred Ground: Congress's Power To Subject White House Advisers To Senate Confirmation, Douglas S. Onley
Treading On Sacred Ground: Congress's Power To Subject White House Advisers To Senate Confirmation, Douglas S. Onley
William & Mary Law Review
No abstract provided.
State Constitutional Law Processes, Robert F. Williams
State Constitutional Law Processes, Robert F. Williams
William & Mary Law Review
No abstract provided.