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Full-Text Articles in Law
Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson
Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson
Faculty Scholarship
The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …
Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard
Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard
Faculty Scholarship
The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.
Congressional Administration Of Foreign Affairs, Rebecca Ingber
Congressional Administration Of Foreign Affairs, Rebecca Ingber
Faculty Scholarship
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.
And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …
Barack Obama's Emancipation Proclamation: An Essay In Memory Of Judge Richard D. Cudahy, Jack M. Beermann
Barack Obama's Emancipation Proclamation: An Essay In Memory Of Judge Richard D. Cudahy, Jack M. Beermann
Faculty Scholarship
In a case involving whether illegal immigrants were protected under federal labor law, Judge Richard Cudahy, observed that illegal immigrants are often at the mercy of unscrupulous employers and that immigrations laws provide employers “with a powerful tool for unfair and oppressive treatment of migrant labor.” There are millions of people in the United States who are vulnerable to exploitation in the workplace due to their illegal immigration status. In 2012 and 2014, the Obama administration announced programs designed to provide limited security to some of the millions of illegal immigrants present in the United States. These programs are, in …
Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai
Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai
Faculty Scholarship
This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …
Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss
Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss
Faculty Scholarship
The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …
Ordinary Powers In Extraordinary Times: Common Sense In Times Of Crisis Symposium: Extraordinary Powers In Ordinary Times, Gary S. Lawson
Ordinary Powers In Extraordinary Times: Common Sense In Times Of Crisis Symposium: Extraordinary Powers In Ordinary Times, Gary S. Lawson
Faculty Scholarship
The U.S. Constitution was written, debated, ratified, and implemented in the shadow of crisis. The country was birthed in war. In the aftermath of ratification, opponents of the Constitution could have precipitated a civil war that would have jeopardized the survival of the fledgling national government. I Throughout the founding era, any number of European powers were perceived to pose a serious threat of invasion. 2 Well into the 1800s, especially in certain northeastern states, substantial homegrown support for realignment with England persisted; the possibility of an internal rebellion in those areas was quite real.3 Individuals interested more in power …
Congressional Administration, Jack M. Beermann
Congressional Administration, Jack M. Beermann
Faculty Scholarship
In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …
Congress And The Legislative Web Of Trust, Alan L. Feld
Congress And The Legislative Web Of Trust, Alan L. Feld
Faculty Scholarship
Trust in the legislative arena does not flow from altruism. It rests on two related foundations: personal interactions and rational incentives. Legislators must engage with each other over at least a two-year term and usually far longer. Their encounters reflect the dynamic of continuing players rather than one-time participants. Thus, failure to carry out commitments chills the possibility of future advantageous agreements with the aggrieved party. Moreover, the process of shared experience and personal interaction can create friendships that make the foundation for trust personal as well as professional. Further, each House of Congress has many of the characteristics of …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …
Separation Of Political Powers: Boundaries Or Balance, Alan L. Feld
Separation Of Political Powers: Boundaries Or Balance, Alan L. Feld
Faculty Scholarship
One of the most significant structural elements of the United States Constitution divides the political power of the government between two discrete political institutions, the Congress and the President, in order to prevent concentration of the full power of the national government in one place. This governmental structure has posed a continuing dilemma of how to allow for the shared decisionmaking necessary to effective government while maintaining the independence of each political branch. As the United States Congress reaches its two hundredth anniversary, questions concerning the relationship between Congress and the President, for a substantial time thought by legal scholars …