Law Commons^™

The National Security Consequences Of The Major Questions Doctrine, Ganesh Sitaraman, Timothy Meyer

Vanderbilt Law School Faculty Publications

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 …

Presidential Control Of Elections, Lisa M. Manheim

Vanderbilt Law Review

In recent decades, presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment and subordination of expertise. These harms, in …

Potus And Pot: Why The President Could Not Legalize Marijuana Through Executive Action, Robert Mikos

Vanderbilt Law School Faculty Publications

Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election showed that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.

This Essay warns that such promises are both misguided and dangerous because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that …

We Need A Cole Memorandum For Magic Mushrooms, Robert Mikos

Vanderbilt Law School Faculty Publications

In fall 2020, as the nation elected Joe Biden to be our Forty-Sixth President, Oregon voters also passed a noteworthy new drug law reform. Known as Measure 109, Oregon’s path-breaking law legalizes the use of psilocybin, a hallucinogenic substance found in magic mushrooms. Measure 109 is designed to unlock the therapeutic potential of psilocybin, which advocates tout as an effective and safe treatment for depression and other psychological conditions.

Given the burgeoning interest in psychedelics, many people are excited to see how Oregon’s psilocybin experiment pans out. But at this point, it remains unclear whether the experiment will even get …

Oversight Riders, Kevin Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Presidential Factfinding, Shalev Roisman

Vanderbilt Law Review

The modern President possesses enormous power. She can use military force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the "national interest," perhaps that it will preserve "regional stability" or protect American lives. To impose …

Presidential Exit, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

"The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America."

"Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?"

"President Trump signed the 30th executive order of his presidency on Friday, capping off a whirlwind period that produced more orders in his first 100 days than for any president since Harry Truman. The rash of executive orders …

Executive Agreements Relying On Implied Statutory Authority: A Response To Bodansky And Spiro, David A. Wirth

Vanderbilt Journal of Transnational Law

Until recently, the law surrounding executive agreements has been a subject of attention from a relatively small number of academics concerned with foreign relations law, along with State Department lawyers who have a need to deploy the underlying concepts in concrete determinations. Then, with little advance warning, the Paris Agreement thrust legal doctrines surrounding executive agreements to center stage in public policy debates and in the popular press. President Donald Trump's campaign promise to "cancel" the Paris Agreement has drawn even more attention to the issue. Unfortunately, the result has been a great deal of confusion, often needlessly contributing to …

"Head-Of-State-Owned Enterprise" Immunity, Pammela S. Quinn

Vanderbilt Journal of Transnational Law

While other wealthy individuals and businessmen have served and do serve as heads of state, the Trump presidency appears to be unique in terms of the global scope of the President's business interests, his propensity to be sued, and his disinterest in disentangling his business interests from his official agenda. This Article conceptualizes Trump's many business holdings and licenses under the Trump Organization International umbrella as a "head-of-state-owned enterprise." This raises issues similar to cases involving both head-of-state and state-owned enterprise immunity. Considering existing immunity doctrines, including gaps and contested areas in the law pertaining to them, the Article identifies …

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Vanderbilt Law School Faculty Publications

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose …

Judicial Review Of Constitutional Transitions: War And Peace And Other Sundry Matters, Rivka Weill

Vanderbilt Journal of Transnational Law

Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive's authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive's term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments' action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or …

Foreign Official Immunity After Samantar: A United States Government Perspective, Harold H. Koh

Vanderbilt Journal of Transnational Law

I am delighted to speak here at Vanderbilt regarding the U.S. Government's perspective on Foreign Official Immunity after Samantar v. Yousuf.' In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court's …

Head Of State Immunity As Sole Executive Lawmaking, Lewis S. Yelin

Vanderbilt Journal of Transnational Law

At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts' practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch's practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President's constitutional responsibility as the only authorized representative of the United States in its …

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with …

A Paper Tiger With Bite: A Defense Of The War Powers Resolution, Michael B. Weiner

Vanderbilt Journal of Transnational Law

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been labeled ineffectual and useless. This Note proves, however, that to review presidential unilateral uses of force since 1973 is to find a spirit of compliance with the WPR, as these uses of force have been characterized by their brevity and their lack of spilled U.S.blood. While minor departures from the WPR's black-letter requirements are conceded, none of these uses of force have developed into, or even resembled, Vietnam-esque quagmires. As a result, this Note contends that the WPR has had a positive …

Deference And Democracy, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified its …

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual …

The President's Statutory Powers To Administer The Laws, Kevin M. Stack

Vanderbilt Law School Faculty Publications

When does a statute grant powers to the President as opposed to other officials? Prominent theories of presidential power argue or assume that any statute granting authority to an executive officer also implicitly confers that authority upon the President. This Article challenges that statutory construction. It argues that the President has statutory authority to direct the administration of the laws only under statutes which grant to the President in name. Congress's enduring practice of granting power to executive officers subject to express conditions of presidential control supports a strong negative inference that the President has no directive authority when a …

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …

The Dangers Of Deference: International Claim Settlement By The President, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

During the final months of the Clinton administration, the State Department entered into a trio of unprecedented international agreements with France (the "French Agreement"), Germany (the "German Agreement"), and Austria (the "Austrian Agreement"). These "sole" executive agreements, designed to resolve litigation pending in the U.S. courts that arose out of World War II and the Holocaust, were made without Senate ratification(as required for a treaty) or congressional authorization (as in a congressional- executive agreement). Although executive branch settlement of claims without Senate or congressional approval has a long history, these executive agreements mark an important departure from prior practice by …

The Anti-Ballistic Missile Treaty Debate: Time For Some Clarification Of The President's Authority To Terminate A Treaty, Joshua P. O'Donnell

Vanderbilt Journal of Transnational Law

This Note explores the legal issues surrounding a president's legal authority to unilaterally withdraw from a treaty. This Note argues that, while international legal issues surrounding treaty termination are not controversial, the domestic legal issues surrounding the president's authority to terminate a treaty are heavily disputed. An analysis of these domestic legal issues does not resolve the controversy. Instead, this Note argues that a functional analysis is required. This functional analysis reveals that the president should have the power to unilaterally terminate a treaty because it maintains foreign policy effectiveness. The Note then argues that the Senate, which informally recognizes …

Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier

Vanderbilt Law School Faculty Publications

It is a long-established principle that presidential impeachment is an appropriate remedy only for "high Crimes and Misdemeanors" of a public nature (with the possible exception of private crimes so heinous that the President "cannot be permitted to remain at large"). The crux of this Essay's argument is that the President's affair with Monica Lewinsky was a private matter that was not rendered "public" simply because Mr. Clinton lied about it. With its vote against removing the President, the Senate seemed to agree.

The Executive Branch And International Law, Arthur M. Weisburd

Vanderbilt Law Review

Public international law, through its rules regulating the dealings between independent nations, purports to impose limits on the actions of all governments, including those of the United States. In this context American lawyers interested in foreign relations may reasonably wonder whether American courts would enforce rules of public international law purporting to bind the United States against the United States government, particularly the executive branch. A fair number of Supreme Court cases have dealt with the enforce ability of treaties in American courts.' Treaties, however, are only one source of international law. The other important source, customary international law, is …

Recent Decisions, Daniel M. Fitzpatrick, William F. Buechler

Vanderbilt Journal of Transnational Law

Executive Power--President Has the Power to Block and Transfer Iranian Assets, Nullify Prejudgment Attachments, and Suspend Claims of United States Nationals in Implementing Executive Agreement for Release of Hostages

Petitioner sued the United States and the Secretary of the Treasury to enjoin enforcement of Treasury Department regulations and executive orders implementing an executive agreement with Iran that would nullify petitioner's prejudgment attachment of Iranian bank assets and prevent further litigation of its claim against Iran. The events leading up to this suit are relevant to a discussion of the legal issues.

Presidential Emergency Powers Related To International Economic Transactions, Mary M.C. Bowman

Vanderbilt Journal of Transnational Law

On December 28, 1977, President Carter signed into law Public Law 95-223, an act "[w]ith respect to the powers of the President in time of war or national emergency." The primary purpose of the Act is to revise the Trading With the Enemy Act of 1917 (TWEA), and thus to restrict presidential authority to respond to emergencies related to international economic transactions. The Act is the latest product of a continuing congressional effort to readjust the balance of power between the two branches of government. The War Powers Resolution and the National Emergencies Act were earlier pieces of legislation intended …

The Continuing Presidential Dilemma, Thomas Blau

Vanderbilt Law Review

The problems of the Presidency are not new. The transformation has occurred in the evaluation of such behavior and especially in the concept of the proper balance between the Presidency and Congress.Changing personalities in office may account for much of the evolution of the institutional critiques. Organizing the Presidency--much to Stephen Hess's credit--does not participate in the simplistic version of this dialectic. Despite having served on the staffs of two Presidents, he calls for a drastic diminution in the power of the White House staff in favor of its rival, the Cabinet. An effective Presidency, in his view,requires a more …

Budget Reform And Impoundment Control, L. Harold Levinson, Jon L. Mills

Vanderbilt Law Review

Impoundment has become a household word within the past two years, as controversy has raged over President Nixon's cutbacks of funds. Numerous significant governmental programs have been curtailed or disrupted. State and local governments face confusion about future funding. In dozens of cases, the lower federal courts have reviewed the exercise of Presidential discretion during the execution of appropriations, and in most cases the courts have determined that the President acted improperly. The underlying problem evidenced by impoundment remains unsolved, however, since it arises from tensions that build up throughout the budget process of the federal government, from the preparation …

The Import Surcharge Of 1971: A Case Study Of Executive Power In Foreign Commerce, David Pollard, David A. Boillot

Vanderbilt Journal of Transnational Law

The importance of foreign trade in the conduct of foreign affairs demonstrates that many foreign commerce questions contain foreign affairs overtones. For example, President Nixon has recently noted that congressional restrictions on granting the Soviet Union most-favored-nation treatment would be "a hurdle to further detente." Although article I, section 8 of the Constitution vests the power to regulate foreign commerce in the legislative branch, the Congress has delegated a great deal of that power to the Executive. Moreover, it appears that the President possesses certain inherent powers in foreign commerce as a result of his extensive, albeit undefined, authority in …

The Nature And Extent Of Executive Power To Espouse The International Claims Of United States Nationals, Jesse W. Hill, Steven M. Lucas

Vanderbilt Journal of Transnational Law

International law is generally considered to be law that governs the conduct of sovereign states only. While individual private persons, both natural and juridical, undoubtedly are third-party beneficiaries of the rights and duties created by international law, those rights and duties, in the classical analysis, run only among sovereigns. Because rules of international law and treaties constitute obligations among or between sovereign states, a violation of international law imposes international responsibility not to the private parties who are injured by the violation but to the sovereign states of which they are members. Private parties, therefore, generally have no standing to …

Congressional Power To Define The Presidential Pocket Veto Power, Arthur S. Miller

Vanderbilt Law Review

Two recent exercises of the "pocket veto" by President Nixon have evoked controversy over the constitutional distribution of power and responsibility for negativing congressional actions! On December 14,1970, Congress sent to the President Senate Bill 3418, the Family Practice of Medicine Act. The bill had originated in the Senate, which recessed at the close of business on December 22, 1970, until 12:00 o'clock noon on December 28. Before recessing, unanimous consent had been given the Secretary of the Senate to receive messages from the President during this period. At about the same time House of Representatives Bill 3571, a private …