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Articles 1 - 30 of 112
Full-Text Articles in Law
The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt
The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt
William & Mary Law Review
The conventional wisdom is that the two impeachments of Donald Trump demonstrated the ineffectiveness of impeachment as a remedy for serious presidential misconduct. Meeting the constitutional threshold for conviction and removal requiring at least two-thirds approval of the Senate is practically impossible so long as the members of the President’s party in Congress control at least a third of the seats in the Senate and are united in opposition to his impeachment and conviction. This Article challenges this conventional wisdom and argues instead that the two Trump impeachments have enduring effects on Trump’s political future and legacy, especially in light …
The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler
The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler
William & Mary Bill of Rights Journal
The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will …
Inspectors General And The Law Of Oversight Independence, Andrew C. Brunsden
Inspectors General And The Law Of Oversight Independence, Andrew C. Brunsden
William & Mary Bill of Rights Journal
President Trump’s defiance of basic norms threatened the oversight institutions of American democracy. His brazen assault on the prosecutorial and investigative independence of federal law enforcement was well documented. Yet few have thoroughly scrutinized his violations of the oversight independence of internal institutions that monitor the government to promote integrity, transparency, and accountability. This Article examines the independence of Inspectors General (IGs), the internal watchdogs of the Executive Branch, and the President’s attacks on the institution. President Trump breached long-standing independence norms when he fired or replaced IGs in retaliation for their legitimate exercise of oversight duties. Then, in some …
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 …
Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower
Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower
William & Mary Bill of Rights Journal
Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …
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. …
Destructive Federal Decentralization, David Fontana
Destructive Federal Decentralization, David Fontana
William & Mary Bill of Rights Journal
This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power …
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 …
Relentless Pursuits: Reflections Of An Immigration And Human Rights Clinician On The Past Four Years, Sarah H. Paoletti
Relentless Pursuits: Reflections Of An Immigration And Human Rights Clinician On The Past Four Years, Sarah H. Paoletti
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Deconstructing Invisible Walls: Sotomayor's Dissents In An Era Of Immigration Exceptionalism, Karla Mckanders
Deconstructing Invisible Walls: Sotomayor's Dissents In An Era Of Immigration Exceptionalism, Karla Mckanders
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Dean A. Benjamin Spencer: A Message To The William & Mary Law School Community About Events On January 6 In Washington, D.C., A. Benjamin Spencer
Dean A. Benjamin Spencer: A Message To The William & Mary Law School Community About Events On January 6 In Washington, D.C., A. Benjamin Spencer
2020–present: A. Benjamin Spencer
No abstract provided.
Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano
William & Mary Bill of Rights Journal
No abstract provided.
The Politics Of Cost-Benefit Analysis: A Risky Bet For Environmental Law And Policy In Brazil, Julio Borges
The Politics Of Cost-Benefit Analysis: A Risky Bet For Environmental Law And Policy In Brazil, Julio Borges
William & Mary Environmental Law and Policy Review
Seeking to disseminate cost-benefit analysis as part of a global agenda of reforms on regulatory policy, the Organization for Economic Cooperation and Development (“OECD”) has advocated this economic tool to all its member countries. A key partner of that international organization since 2007, Brazil officially sought in 2017 to be a permanent OECD member, which means accepting orientation from that organization on policy reforms, namely regulatory policy. This Article disagrees with OECD’s recommendation because traditional cost-benefit analysis has been technically flawed and politically biased towards a deregulatory agenda. The purpose of this Article, therefore, is to analyze the potential impacts …
Judicial Credibility, Bert I. Huang
Judicial Credibility, Bert I. Huang
William & Mary Law Review
Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge—here, as a “Bush judge” or “Clinton judge”—can influence the credibility of judicial review in …
The Judicial Reforms Of 1937, Barry Cushman
The Judicial Reforms Of 1937, Barry Cushman
William & Mary Law Review
The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …
First, We'll Neuter All The Judges, A. Benjamin Spencer
First, We'll Neuter All The Judges, A. Benjamin Spencer
Popular Media
No abstract provided.
A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii
A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii
William & Mary Law Review
Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …
Is The "Hire American" Executive Order A Suspect Classification?, Michael H. Leroy
Is The "Hire American" Executive Order A Suspect Classification?, Michael H. Leroy
William & Mary Bill of Rights Journal
President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the United States has 4.6 million jobs. Most employees in this large workforce—about 76%—are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.
“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the …
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
William & Mary Bill of Rights Journal
Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …
"When The President Does It": Why Congress Should Take The Lead In Investigations Of Executive Wrongdoing, Andrew B. Pardue
"When The President Does It": Why Congress Should Take The Lead In Investigations Of Executive Wrongdoing, Andrew B. Pardue
William & Mary Law Review
Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: “Well, when the President does it, that means it is not illegal.” A majority of Americans disagreed with the former President’s assessment. But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms—all differing in their independence …
Section 6: Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone
The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone
Faculty Publications
In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …
"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske
"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske
William & Mary Environmental Law and Policy Review
No abstract provided.
When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson
When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson
William & Mary Bill of Rights Journal
This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress.
Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn
Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn
William & Mary Law Review
Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …
The Next Forty Presidents, Ori Aronson
The Next Forty Presidents, Ori Aronson
William & Mary Journal of Race, Gender, and Social Justice
A thought experiment in feminist constitutionalism, this Article explores a radical argument: allow only women to be elected as the next forty U.S. presidents. While on its face blatantly discriminatory, the forty female presidents rule turns out to be a robustly justifiable idea, along multiple axes of political fairness, and not to women alone—rather to the electorate as a whole. Due to several of its unique characteristics, the presidency turns out to be particularly fitting to innovation that would correct past injustices of political exclusion. Corrective justice, affirmative action, feminist critique, voter autonomy, and the democratic costs of identity politics …
Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins
Faculty Publications
No abstract provided.
Section 4: Immigration Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Immigration Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington
Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington
William & Mary Law Review
During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given …