Law Commons^™

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

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What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

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Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth

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The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking …

Obama's Woes, Kenneth Lasson

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This short op-ed piece discusses Barack Obama's presidency, particularly with regard to Jewish issues and with Israel and the Middle East. The writer offers his rationale why the President's support among Jewish voters is slipping.

Presidential Memories: Lincoln's Relationship With The Jews - Remembered On President's Day, Kenneth Lasson

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This article examines the relationship President Abraham Lincoln had with members of the Jewish faith.

Ever since George Washington, U.S. presidents have made inclusive gestures toward Jewish-American citizens and soldiers, but only Abraham Lincoln, whose 291st birthday we celebrated last week, ever officially intervened on their behalf. He did it twice within the span of two years. During his political career Lincoln had many Jewish associates, advisers and supporters.

During the Civil War General Grant issued General Order No. 11, which is also discussed. This order was a result of Grant’s perception that Jews were participating in a black market …

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

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In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …

The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo

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Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …

Skunk In An Onion Patch Buchanan Threatens Dole If He Doesn't Shut Up-And America If He Does, Kenneth Lasson

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Regardless of his finish in the primaries, Mr. Buchanan is determined to be heard from at the Republican National Convention in late summer. Mr. [Bob Dole] would like his endorsement for the votes it would provide, but cannot be serious about hoping "that Pat Buchanan would find it in his heart as a good Republican to join forces and close ranks." Can good Republicans be outright bigots? Does Mr. Dole have a political death wish?

What's in Mr. Buchanan's heart is the cause. "We'll go forward," he vowed on national television, "fighting for the cause." But the purity of the …