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William & Mary Law School

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Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer Feb 2017

Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer

Faculty Publications

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …


The Erosion Of Congressional Checks On Presidential Power, Neal Devins Jan 2017

The Erosion Of Congressional Checks On Presidential Power, Neal Devins

Popular Media

No abstract provided.


The Architecture Of Constitutional Time, Richard Alexander Izquierdo May 2015

The Architecture Of Constitutional Time, Richard Alexander Izquierdo

William & Mary Bill of Rights Journal

Bruce Ackerman’s account in his We the People series urges the legal recognition of constitutional amendments enacted outside of Article V as part of a larger descriptive project concerning the creation of distinct republics within the Constitution of 1787. One of its limitations is that he and other scholars have not fully appreciated the way in which the original institutional design of the Constitution has facilitated—and perhaps even anticipated—the construction of subregimes during extraordinary times. This Article presents constitutional time and presidential incentives for a lasting legacy as the most important factors influencing constitutional meaning. It is constitutional time—the extraordinary …


Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2014

Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Standing Outside Article Iii, Tara Leigh Grove May 2014

Standing Outside Article Iii, Tara Leigh Grove

Faculty Publications

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …


The Transformative Twelfth Amendment, Joshua D. Hawley Apr 2014

The Transformative Twelfth Amendment, Joshua D. Hawley

William & Mary Law Review

Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college—and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive’s relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, …


Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins Mar 2014

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …


The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash Apr 2012

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …


The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove Mar 2012

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …


Partisan Conflicts Over Presidential Authority, Jide Nzelibe Nov 2011

Partisan Conflicts Over Presidential Authority, Jide Nzelibe

William & Mary Law Review

No abstract provided.


On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins May 2011

On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins

William & Mary Law Review

Executive term limits are precommitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This Article reviews the normative debate over term limits and identifies …


Executive Branch Czars, Who Are They? Are They Needed? Can Congress Do Anything About Them?, Jonathan D. Puvak May 2011

Executive Branch Czars, Who Are They? Are They Needed? Can Congress Do Anything About Them?, Jonathan D. Puvak

William & Mary Bill of Rights Journal

No abstract provided.


Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins Apr 2009

Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins

Faculty Publications

No abstract provided.


A Constitutional Anomaly: Safeguarding Confidential National Security Information Within The Enigma That Is The American Vice Presidency, Todd Garvey Dec 2008

A Constitutional Anomaly: Safeguarding Confidential National Security Information Within The Enigma That Is The American Vice Presidency, Todd Garvey

William & Mary Bill of Rights Journal

No abstract provided.


Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash Dec 2008

Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash

William & Mary Law Review

In the last four decades, the presidency has been characterized both as the "imperial presidency" as well as the "imperiled presidency. "From an originalist perspective, both camps have elements of truth on their side. When it comes to the conduct and initiation of wars, modern Presidents exercise powers that rival those the Crown possessed in England. Presidents claim the power to start wars, notwithstanding Congress's power to declare war. Moreover, Presidents insist that they have the sole right to determine how the armed forces will wage all wars, even though Congress clearly has considerable power over the armed forces. Law …


The "Ongoing Criminal Investigation" Constraint: Getting Away With Silence, Luke M. Milligan Mar 2008

The "Ongoing Criminal Investigation" Constraint: Getting Away With Silence, Luke M. Milligan

William & Mary Bill of Rights Journal

No abstract provided.


Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis Jan 2008

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Faculty Publications

No abstract provided.


Signing Statements And Divided Government, Neal Devins Oct 2007

Signing Statements And Divided Government, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.


Introduction: The Last Word? The Constitutional Implications Of Presidential Signing Statements, Charlie Savage Oct 2007

Introduction: The Last Word? The Constitutional Implications Of Presidential Signing Statements, Charlie Savage

William & Mary Bill of Rights Journal

No abstract provided.


A Matter Of Direction: The Reagan Administration, The Signing Statement, And The 1986 Westlaw Decision, Christopher S. Kelley Oct 2007

A Matter Of Direction: The Reagan Administration, The Signing Statement, And The 1986 Westlaw Decision, Christopher S. Kelley

William & Mary Bill of Rights Journal

No abstract provided.


The First Word, M. Elizabeth Magill Oct 2007

The First Word, M. Elizabeth Magill

William & Mary Bill of Rights Journal

No abstract provided.


The On/Off Switch, Philip Heymann Oct 2007

The On/Off Switch, Philip Heymann

William & Mary Bill of Rights Journal

No abstract provided.


Why The President Must Veto Unconstitutional Bills, Saikrishna B. Prakash Oct 2007

Why The President Must Veto Unconstitutional Bills, Saikrishna B. Prakash

William & Mary Bill of Rights Journal

No abstract provided.


Presidential Signing Statements In Perspective, Nelson Lund Oct 2007

Presidential Signing Statements In Perspective, Nelson Lund

William & Mary Bill of Rights Journal

No abstract provided.


The Unconstitutionality Of "Signing And Not-Enforcing", Michael B. Rappaport Oct 2007

The Unconstitutionality Of "Signing And Not-Enforcing", Michael B. Rappaport

William & Mary Bill of Rights Journal

No abstract provided.


Litigating Presidential Signing Statements, Michele Estrin Gilman Oct 2007

Litigating Presidential Signing Statements, Michele Estrin Gilman

William & Mary Bill of Rights Journal

No abstract provided.


Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant Oct 2007

Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant

William & Mary Bill of Rights Journal

No abstract provided.


Signing Statements: Constitutional And Practical Limits, Louis Fisher Oct 2007

Signing Statements: Constitutional And Practical Limits, Louis Fisher

William & Mary Bill of Rights Journal

No abstract provided.


Fee Shifting As A Congressional Response To Adventurous Presidential Signing Statements, Harold J. Krent Oct 2007

Fee Shifting As A Congressional Response To Adventurous Presidential Signing Statements, Harold J. Krent

William & Mary Bill of Rights Journal

No abstract provided.


Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf Oct 2007

Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf

William & Mary Bill of Rights Journal

No abstract provided.