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Articles 1 - 18 of 18
Full-Text Articles in Law
A Pandemic Of Separation Of Powers Violations In Texas: The Interrelationship Of The Texas Disaster Act And Texas Gov’T Code Section 22.0035, Ron Beal
St. Mary's Law Journal
This Article is on the interrelationship of the Texas Disaster Act and Texas Government Code Section 22.0035. The author demonstrates that the Governor of Texas and the Texas Supreme Court have grossly violated the separation of powers on a continuing basis since March 29, 2020 by Governor Abbott issuing Executive Order 13, which prohibits the granting of bail to anyone awaiting trial, and the Texas Supreme Court’s unwillingness to invalidate that order administratively or judicially. Finally, the Article addresses the nearly one thousand district and county court judges who are constantly violating the separations of powers by failing to invalidate …
The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson
The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson
FIU Law Review
In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. …
The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum
The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum
Dickinson Law Review (2017-Present)
This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.
This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …
'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt
Channels: Where Disciplines Meet
The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …
Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon
Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon
University of Richmond Law Review
The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.
Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl
Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl
Northwestern University Law Review
Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit’s recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine …
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Osgoode Hall Law Journal
Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …
Separation Of Powers And Unilateral Executive Action: The Constitutionality Of President Clinton's Mexican Loan Initiative, Kimberly D. Chapman
Separation Of Powers And Unilateral Executive Action: The Constitutionality Of President Clinton's Mexican Loan Initiative, Kimberly D. Chapman
Georgia Journal of International & Comparative Law
No abstract provided.
Separation Of Powers Crisis: The Case Of Argentina, Manuel José J. García-Mansilla
Separation Of Powers Crisis: The Case Of Argentina, Manuel José J. García-Mansilla
Georgia Journal of International & Comparative Law
No abstract provided.
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Michigan Law Review
The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …
Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock
Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock
Touro Law Review
No abstract provided.
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
Pepperdine Law Review
The United States Constitution created an internally dependent tripartite governing scheme which relied upon a carefully drafted system of checks and balances as a means of self-regulation. Recent years have seen increased conflicts between the separate branches, the most recent of which is the occasion for this article. The article traces the rise and fall of the power exercised by the various branches and then focuses on the recent confrontation between Congress and the executive branch concerning the actions of the Environmental Protection Agency and the subsequent resignation of Anne McGill Burford. Of particular interest to this inquiry is the …
Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni
Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni
Pepperdine Law Review
No abstract provided.
Separation Of Powers And The California Initiative, Owen Tipps
Separation Of Powers And The California Initiative, Owen Tipps
Golden Gate University Law Review
This Comment seeks to apply the existing principles of California's separation of powers jurisprudence to the statutory initiative power, beginning from the premise that this power constitutes a fourth and autonomous branch of government. Part I describes the initiative process and how it differs from the manner in which laws are passed by the legislature. Part II details the theoretical and historical origins of the initiative power. Part III identifies the sources of the initiative power and the conventional legislative process, and it discusses the differing places ascribed to each in the state's constitutional jurisprudence. Part IV delineates the existing …
Lost Constitutional Moorings: Recovering The War Power, Louis Fisher
Lost Constitutional Moorings: Recovering The War Power, Louis Fisher
Indiana Law Journal
For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. Similar false claims of authority have been made by Presidents since that time. These constitutional violations have been assisted …
Separation Of Powers And The Governor's Office In West Virginia: Advocating A More Deferential Approach To The Chief Executive From The Judiciary, Jason C. Pizatella
Separation Of Powers And The Governor's Office In West Virginia: Advocating A More Deferential Approach To The Chief Executive From The Judiciary, Jason C. Pizatella
West Virginia Law Review
No abstract provided.
Judicial Independence In Virginia, W. Hamilton Bryson
Judicial Independence In Virginia, W. Hamilton Bryson
University of Richmond Law Review
No abstract provided.
Validity Of New York State Ethics Commission Rule 932.2 Barring Public Officers From Holding Political Party Office, William Josephson, Beverly Jean Ross
Validity Of New York State Ethics Commission Rule 932.2 Barring Public Officers From Holding Political Party Office, William Josephson, Beverly Jean Ross
Touro Law Review
No abstract provided.