Law Commons^™

The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade

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This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook

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Attorney General William Barr's handling of Robert Mueller's Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr's conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

Presidential Crimes Matter, Julian A. Cook

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The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

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The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Promoting Executive Accountability Through Qui Tam Legislation, Randy Beck

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For hundreds of years prior to ratification of the U.S. Constitution, Anglo-American legislatures used qui tam legislation to enforce legal constraints on government officials. A qui tam statute allows a private informer to collect a statutory fine for illegal conduct, even if the informer lacks the particularized injury normally required for Article III standing. This essay explores whether qui tam regulation should be revived as a means of ensuring executive branch legal accountability."

Suing The President For First Amendment Violations, Sonja R. West

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On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Making Sense Of Legislative Standing, Matthew I. Hall

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Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

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President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

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In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

The New Era Of Presidential Immigration Law, Michael Kagan

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At the dawn of the Obama Administration, Professors Adam Cox and Cristina Rodríguez wrote: “[T]he inauguration of a new President can bring with it remarkable changes in immigration policy.” At the time they wrote that, this proposition was in some ways more a matter of advocacy than a description of reality. As we approach the election of a new president in 2016, we finally live in the world that Professors Cox and Rodríguez advocated. The election of a new President will likely carry significant immediate consequences for immigration policy. My goal in this short space will be to focus on …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

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The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Samantar And Executive Power, Peter B. Rutledge

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This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

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References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Our First Unisex President?: Black Masculinity And Obama's Feminine Side, Frank Rudy Cooper

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People often talk about the significance of Barack Obama's status as our first black President. During the 2008 Presidential campaign, however, a newspaper columnist declared, "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president." That statement epitomized a large media discourse on Obama's femininity. In this essay, Professor Frank Rudy Cooper thus asks how Obama will influence people's understandings of the implications of both race and gender.

To do so, he explicates and applies insights from the fields of identity performance theory, critical race theory, and masculinities studies. …

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

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It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and …

Abu Ghraib, Diane Marie Amann

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This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

The Independent Counsel Statute: A Premature Demise, Julian A. Cook

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With the backdrop of the impeachment trial of President William Jefferson Clinton, Congress was confronted with the quandary of whether to reauthorize the independent counsel statute. As the statute approached its June 30, 1999 lapse date, lawmakers grappled with and bandied about an array of proposals, including statutory abandonment, in the midst of tremendous political tension and public fervor over the actions of the President, Independent Counsel Kenneth Starr, and members of Congress. Ultimately, Congress allowed the statute to expire, leaving the prosecution of high-ranking Executive Branch officials in the hands of the Department of Justice. Advocates of reauthorization could …

International Trade Relations And The Separation Of Powers Under The United States Constitution, John Linarelli

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No abstract provided.

National Performance Review: A Renewed Commitment To Strengthening The Intergovernmental Partnership, Patricia E. Salkin

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No abstract provided.