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Articles 1 - 30 of 62
Full-Text Articles in Law
Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern
Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern
University of Richmond Law Review
The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the …
How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias
How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias
Law Faculty Publications
In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …
Filling The New York Federal District Court Vacancies, Carl Tobias
Filling The New York Federal District Court Vacancies, Carl Tobias
Law Faculty Publications
President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.
One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …
Filling The California Ninth Circuit Vacancies, Carl Tobias
Filling The California Ninth Circuit Vacancies, Carl Tobias
Law Faculty Publications
At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.
Limited clarity about whether more judges will leave active service over Trump’s presidency …
Acknowledgments, Andrew E. Hemby
Acknowledgments, Andrew E. Hemby
University of Richmond Law Review
No abstract provided.
The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.
The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.
Law Faculty Publications
The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that …
The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh
The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh
Law Faculty Publications
Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.
Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …
Next Generation Foreign Intelligence Surveillance Law: Renewing 702, William C. Banks
Next Generation Foreign Intelligence Surveillance Law: Renewing 702, William C. Banks
University of Richmond Law Review
No abstract provided.
Confirming Judge Restrepo To The Third Circuit, Carl W. Tobias
Confirming Judge Restrepo To The Third Circuit, Carl W. Tobias
Law Faculty Publications
From the moment that the Grand Old Party (GOP) won the Senate in November 2014, Republicans have directly and incessantly vowed to establish “regular order” in the upper chamber again. Lawmakers employed this phrase to depict the purported restoration of strictures that prevailed until Democrats subverted them. In January 2015, when the 114th Congress began, Senator Mitch McConnell (R-Ky.), the Majority Leader, proclaimed, “[w]e need to return to regular order,” while the legislator has dutifully recited that mantra ever since. Senator Charles Grassley (R-Iowa), the head of the Senate Judiciary Committee, espoused analogous concepts. Illustrative was his January 2015 pledge …
Combating The Ninth Circuit Judicial Vacancy Crisis, Carl W. Tobias
Combating The Ninth Circuit Judicial Vacancy Crisis, Carl W. Tobias
Law Faculty Publications
When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. …
Presidential Constitutional Interpretation, Signing Statements, Executive Power And Zivotofsky, Henry L. Chambers, Jr.
Presidential Constitutional Interpretation, Signing Statements, Executive Power And Zivotofsky, Henry L. Chambers, Jr.
Law Faculty Publications
This Article explores whether the President should interpret the Constitution aggressively and, if so, whether the President should act on such aggressive interpretations. Part I examines whether the presidential oath and other constitutional duties obligate the President to interpret the Constitution. Part II considers constitutional signing statements as the manifestation of an aggressive approach to presidential constitutional interpretation. Part III considers whether the Constitution is a legal document or a political document, and how that determination might affect how aggressive the President should be when interpreting the Constitution. Part IV considers how the Supreme Court's and Congress's constitutional interpretations might …
Filling Federal Court Vacancies In A Presidential Election Year, Carl Tobias
Filling Federal Court Vacancies In A Presidential Election Year, Carl Tobias
University of Richmond Law Review
No abstract provided.
The President As Spiritual Leader: Pardons, Punishment, Forgiveness, Mercy, And Justice, Henry L. Chambers Jr.
The President As Spiritual Leader: Pardons, Punishment, Forgiveness, Mercy, And Justice, Henry L. Chambers Jr.
Law Faculty Publications
The Constitution of the United States empowers the president of the United States to curtail or eliminate punishment for actual or possible federal criminal wrongdoing by issuing pardons. As the quotes that begin this chapter suggest, the nature of a presidential pardon is subject to dispute. A pardon can be thought to be an act of grace or an extension of the president's executive power to administer the criminal justice system, or something in between. This chapter does not resolve the issue, but considers the nature of the pardon power while considering whether or how the president can or should …
Transforming The “Thurmond Rule” In 2016, Carl W. Tobias
Transforming The “Thurmond Rule” In 2016, Carl W. Tobias
Law Faculty Publications
This piece first analyzes the Rule’s history. Part II explains the convention and its deleterious consequences. Finding that each party reinterprets the notion to stymie appointments—which perverts the selection process, deprives courts of judicial resources for delivering justice, and intensifies the “confirmation wars”—the final Part proffers solutions. Because the Rule has multiple detrimental effects, it warrants abolition.
Binding The Enforcers: The Administrative Law Struggle Behind President Obama's Immigration Actions, Michael Kagan
Binding The Enforcers: The Administrative Law Struggle Behind President Obama's Immigration Actions, Michael Kagan
University of Richmond Law Review
No abstract provided.
Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias
Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias
Law Faculty Publications
This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Law Faculty Publications
Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …
Filling The D.C. Circuit Vacancies, Carl W. Tobias
Filling The D.C. Circuit Vacancies, Carl W. Tobias
Law Faculty Publications
This Article's initial section posits a D.C. Circuit snapshot. Part II surveys all three prospects' confirmations. Part III assesses consequences of, and extracts lessons from, the specific processes recounted. Part IV proffers suggestions for improvement.
Filling The District Of Arizona Vacancies, Carl W. Tobias
Filling The District Of Arizona Vacancies, Carl W. Tobias
Law Faculty Publications
The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …
Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias
Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias
Law Faculty Publications
On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.
Passive-Aggressive Executive Power, Corinna Barrett Lain
Passive-Aggressive Executive Power, Corinna Barrett Lain
Law Faculty Publications
My contribution to the 2013 Constitutional Law Schmooze poses a question about the downside of executive power, at least in the enforcement context. If executive power to enforce the law presupposes the duty to use it, what happens when the executive branch would rather not? Perhaps reframing the question will help. What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (“DOMA”) have in common, besides the letter “d”? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I …
Filling The Judicial Vacancies In A Presidential Election Year, Carl Tobias
Filling The Judicial Vacancies In A Presidential Election Year, Carl Tobias
University of Richmond Law Review
No abstract provided.
Executive Power And The Law Of Nations In The Washington Administration, Robert J. Reinstein
Executive Power And The Law Of Nations In The Washington Administration, Robert J. Reinstein
University of Richmond Law Review
In this issue's lead article, Professor Reinstein continueshis examination of the development of executive power over foreign affairs during the early history of the Republic. Re- cently, both legal scholars and the courts are looking to the
actions of the first administrationas a potentialprecedent onhow to construe the scope and source of the President's au- thority to determine and conduct the United States' foreign
policy. Last year, in an articlepublished in thisjournal,Pro-fessor Reinstein concluded that no originalistjustificationex-ists for a plenary executive recognitionpower. In this article,
Professor Reinstein expands this discussion through an original historical and jurisprudential account of the Neutrality …
Tax Court Appointments And Reappointments Improving The Process, Danshera Cords
Tax Court Appointments And Reappointments Improving The Process, Danshera Cords
University of Richmond Law Review
This article explores the problems with the appointment and reappointment process of judges to the United States Tax Court, particularly focusing on the recent politicization of the process. Until 1992, the process ensured the appoint-ment of only well-qualified judges to the Tax Court bench. However, beginning with the administrations of Presidents William J. Clinton and George W. Bush, the President infused politics into the nomination process, causing the process to slow and creating vacancies on the court. Such delays threaten the court's effectiveness and disrupt its operations. To solve this problem, the author endorses changing the statute to allow Tax …
Justifying Diversity In The Federal Judiciary, Carl W. Tobias
Justifying Diversity In The Federal Judiciary, Carl W. Tobias
Law Faculty Publications
This Essay thus scrutinizes Obama’s judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer’s provocative solution. This response ultimately discusses some promising measures beyond Scherer’s recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses
Economic Policy After A Lost Decade--From Over-Spending To Innovation, Timothy M. Kaine
Economic Policy After A Lost Decade--From Over-Spending To Innovation, Timothy M. Kaine
University of Richmond Law Review
In this article, I want to focus on one aspect of our economic recovery-namely, how do we grow an economy without relying upon debt-fueled overconsumption? I argue that the magnitude of the 2007-2009 collapse was based significantly on unsustainable spending that had propped up the previous expansion. National policy during the first years of the last decade turned a sizable national surplus into a huge deficit through war spending, tax cuts, and expansion of public programs that were not paid for.The spending patterns of American families followed a similar pattern in which traditional savings rates shrunk precipitously while family debt …
Recognition: A Case Study On The Original Understanding Of Executive Power, Robert J. Reinstein
Recognition: A Case Study On The Original Understanding Of Executive Power, Robert J. Reinstein
University of Richmond Law Review
No abstract provided.
Challenging Supremacy: Virginia's Response To The Patient Protection And Affordable Care Act, Matthew R. Farley
Challenging Supremacy: Virginia's Response To The Patient Protection And Affordable Care Act, Matthew R. Farley
University of Richmond Law Review
No abstract provided.
The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck
The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck
University of Richmond Law Review
No abstract provided.