Law Commons^™

Catastrophic Terrorism- Thinking Fearfully, Acting Legally, Barry Kellman

Michigan Journal of International Law

The time has come to move beyond howls of alarm to a public discussion of what policies should be adopted or reformed. That discussion should proceed even as crucial questions remain only partially answerable: How realistic is the possibility of catastrophic terrorism? How easy is it to make a catastrophic device that actually works? Why would any person or group want to kill hundreds, thousands, or tens of thousands of innocent victims?

Picking Federal Judges: A Mysterious Alchemy, Michael D. Schattman

Michigan Law Review

I have twice been nominated to the federal bench by President Clinton. The first nomination, in December 1995, lapsed at the end of the 104th Congress. I was renominated in March 1997. I have never had a hearing and never had a letter from the Senate Judiciary Committee requesting additional information. In 1995 and again in 1997 the White House precleared my nomination with my two home-state Republican senators. Originally, I was nominated before the scheduled retirement date of the judge I was named to replace, which gives knowledgeable readers an idea of the lack of controversy surrounding my appointment. …

The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis

University of Michigan Journal of Law Reform

The President's constitutional duty to 'take Care that the Laws be faithfully executed" implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether …

Pragmatism And Parity In Appointments, Yxta Maya Murray

Michigan Journal of Gender & Law

This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …

White House Electronic Mail And Federal Recordkeeping Law: Press "D" To Delect History, James D. Lewis

Michigan Law Review

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White …

When Is The Senate In Recess For Purposes Of The Recess Appointment Clause?, Michael A. Carrier

Michigan Law Review

This Note argues that courts should interpret the Constitution to allow the President to make recess appointments only during intersession recesses of the Senate. Part I chronicles the history of presidential recess appointments. This Part highlights the increasing frequency of, and questionable need for, intrasession recess appointments in the past twenty-five years. Part II examines the text of the Recess Appointments Clause and the intentions of the Framers regarding the scope of the clause and the appointment power in general. This Part argues that the text and the Framers' intentions indicate that the President's power to make recess appointments should …

Presidential Systems In Stress: Emergency Powers In Argentina And The United States, William C. Banks, Alejandro D. Carrió

Michigan Journal of International Law

This article offers three comparative insights. First, it concludes that comparative inquiries into presidential systems may be useful for those interested in constitutional government, regardless of historical, cultural, or other contextual differences among nations. Thus, nations with presidentialist constitutional systems may have common problems because of the institutional presidency. The article maintains that our presidential systems are in such states of disrepair that a fundamental reinvigoration of the legislative and judicial branches is required, so that government may better serve important constitutional values in our nations.

The First Word: The President's Place In "Legislative History", Kathryn Marie Dessayer

Michigan Law Review

This Note examines the extent to which courts interpreting statutes should consider presidential participation in the legislative process. Part I concludes that courts should afford presidential input greater weight in statutory interpretation given the constitutional foundations and the empirical reality of the President's involvement in the lawmaking process. This conclusion follows from an examination of the President's authority to propose legislation and his power to review legislation via the presentment clause. To demonstrate the advantages of using presidential documents, Part II considers a series of cases in which courts used executive documents in the statutory interpretation process. Although federal courts …

Publish And Perish: Congress's Effort To Snip Snepp (Before And Afsa), Michael J. Glennon

Michigan Journal of International Law

Over three million present and former federal employees, of the Executive as well as the Congress, are parties to so-called "pre-publication review agreements," which require that they submit any writings on topics related to their employment for Executive review prior to publication. In Section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Congress attempted to restrict the use of funds to implement or enforce certain of those agreements. On May 27, 1988, however, the United States District Court for the District of Columbia, in American Foreign Service Association v. Garfinkel ("AFSA "), struck that section down, …

Political Questions In International Trade: Judicial Review Of Section 301?, Erwin P. Eichmann, Gary N. Horlick

Michigan Journal of International Law

Section 301 of the Trade Act of 1974 ("Section 301") has become an increasingly potent and widely-used tool in the U.S. arsenal of trade policy measures. The past few years have seen a proliferation of Section 301 cases, affecting the trade of goods and services in Europe, Asia, and Latin America. Even so, in the debate over the Omnibus Trade and Competitiveness Act of 1988 ("Omnibus Trade Act"), Congress expressed impatience with the President's discretion in not undertaking more Section 301 retaliations. But while much attention has focused on the politics and policy aspects of Section 301, little has been …

The Making Of International Agreements: Congress Confronts The Executive, Michigan Law Review

Michigan Law Review

A Review of The Making of International Agreements: Congress Confronts the Executive by Loch K. Johnson

A Republic, If You Can Keep It, Daniel N. Hoffman

Michigan Law Review

A Review of Undeclared War: Twilight Zone of Constitutional Power by Edward Keynes and The War-Making Powers of the President: Constitutional and International Law Aspects by Ann Van Wynen Thomas and A.J. Thomas, Jr.

Beyond The Limits Of Executive Power: Presidential Control Of Agency Rulemaking Under Executive Order 12,291, Morton Rosenberg

Michigan Law Review

This Article addresses the substantial legal problems posed by Executive Order 12,291. Part I argues that the Order, taken as a whole or separated into its procedural and substantive components, violates the constitutional separation of powers. Drawing on the analytic framework outlined by Justice Jackson in the Steel Seizure case, Part I maintains that courts should demand clear congressional support for the Order's requirements. The available evidence, however, conclusively demonstrates Congress's intent to deny the President formalized, substantive control over administrative policymaking. As interpreted by the Supreme Court, moreover, the informal rulemaking provisions of the Administrative Procedure Act (AP A) …

Presidential Pensions And Impeachment: A Proposal For Reform, Patrick E. Mears

University of Michigan Journal of Law Reform

The Former Presidents Act grants annual monetary and clerical allowances and free office space to "former Presidents." Under the Act a President is ineligible to receive any retirement benefits if he or she is removed from office by impeachment and conviction in the Congress of the United States. However, a President facing imminent impeachment can retain the benefits by resigning before the impeachment process culminates in his removal from office. Constitutional considerations indicate that the benefits conferred by the Act could not be revoked or reduced by special congressional legislation upon resignation; such action could be challenged as a bill …

Separation Of Powers: Congrssional Riders And The Veto Power, Richard A. Riggs

University of Michigan Journal of Law Reform

It has been suggested that in order to avoid this potential crisis statutory authority to veto nongermane riders be granted to the President. One author has contended that no such statute is needed, that the President presently has such power under Article I, Section 7 of the Constitution. On the other hand, bills have been introduced in both houses of Congress which might have specifically denied that power to the President. This article examines whether there is any constitutional ground on which the President could take the unprecedented action of separately vetoing congressional riders.

The Presidential Monopoly Of Foreign Relations, Raoul Berger

Michigan Law Review

Because of the widespread ramifications of foreign relations, discussion must perforce be confined to presidential executive agreements, and whether the Senate may be excluded from knowledge of, and participation in, negotiations with foreign nations as a part of the treaty-making process. Mention only can be made of the legislative shortcomings which have contributed to the all but total takeover of foreign relations by the President, and of the need for procedural reform in the Senate if its participation is to be effective. Could we view the matter as an original question, that is, were we drafting or amending a Constitution …

The Presidential Veto Power: A Shallow Pocket, Michigan Law Review

Michigan Law Review

Problems created by the uncertain scope of the President's pocket-veto power do not often arise, but neither are they a matter of purely academic interest. Indeed, two Senators who have questioned President Nixon's use of the pocket-veto power base their challenge on the ambiguous language of the pocket-veto provision. They argue that the pocket-veto provision was intended to apply only in circumstances involving a final adjournment at the end of a term or a session of Congress and was not intended to apply to brief adjournments-such as the 1970 Christmas recess-occurring within a session of Congress. Senator Kennedy contends that …

The Constitution, Congress, And Presidential Elections, Albert J. Rosenthal

Michigan Law Review

It has been recommended by a prestigious commission of the American Bar Association and endorsed by the ABA's House of Delegates. The Bar Association of the City of New York, which had previously recommended a different proposed amendment, has now shifted its support to direct popular vote, as has Senator Birch Bayh, Chairman of the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary. A Gallup poll indicates that 66 per cent of the nation supports this amendment, with only 19 per cent opposed.

It must be remembered, however, that a decision to amend the Constitution is, as …

Termination Of War, John M. Mathews

Michigan Law Review

The termination of war must, at the outset, be distinguished Ifrom the termination of hostilities or actual warfare. As has been said, war is "not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force. Thus, if two nations declare war one against the other, war exists, though no force whatever may as yet have been employed."' Similarly, it follows that, although actual hostilities have ceased, the status of war may continue until terminated in some regular way recognized by international law as sufficient for that …

Presidential Inability, Thomas M. Cooley

Articles

The protracted illness of President Garfield led to much discussion and a variety of opinions as to what constitutes a disability in the Presidential office which will justify the Vice-president in assuming its duties.

The Method Of Electing The President, Thomas M. Cooley, Abram S. Hewitt

Articles

Twice in the history of the United States the nation has been brought to the verge of civil war by difficulties growing out of presidential elections. And yet no system was ever devised with more care to preclude any reasonable complaint.

The New Federal Administration, Thomas M. Cooley

Articles

After four months of feverish excitement and anxious and depressing expectancy, during which no one could anticipate what a day might bring forth, and the prophets of evil with general accord tuned their voices to disaster, the heart of the nation made a great leap for joy when President Hayes, on the steps of the Capitol, proclaimed his firm purpose to carry into practical operation the pledges contained in his letter of acceptance. The mists which hung over the political affairs of the nation at once disappeared, the depression gave way to cheerful confidence, and dangerous excitement was supplanted by …

Some Checks And Balances In Government, Thomas M. Cooley

Articles

The purpose of the present paper is not to discuss the broad general subject of checks and balances in this, or any other, government. but to call attention to a few considerations only. These, in the main, affect the executive and the judiciary, rather than the legislature; and they will serve to show, perhaps, that neither of them can always, and under all circumstances, rely upon any very sure protection to its legitimate powers. It is one thing, unfortunately, to put intricate machinery in motion, and another, and quite a different, thing, to make it, under unforeseen occurrences, work out …

The Guarantee Of Order And Republican Government In The States, Thomas M. Cooley

Articles

A short time ago, the whole country was plunged into a condition of anxiety and excitement by the conflicting claims to the executive authority in one of the States, and by the preparations made, and measures set on foot, to support them.