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Full-Text Articles in Law
Searching Govinfo.Gov/, Bert Chapman
Searching Govinfo.Gov/, Bert Chapman
Libraries Faculty and Staff Presentations
This U.S. Government Publishing Office (GPO) database provides access to information legal, legislative, and regulatory information produced on multiple subjects by the U.S. Government. Content includes congressional bills, congressional committee hearings and prints (studies), reports on legislation, the text of laws, regulations, and executive orders and multiple U.S. Government information resources covering subjects from accounting to zoology.
Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh
Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh
Notre Dame Law Review
Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
University of Michigan Journal of Law Reform
When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …
Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins
Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins
Mitchell Hamline Law Review
No abstract provided.
Presidential Permitting For Pipelines: Constitutionality And Reviewability, Joan Campau
Presidential Permitting For Pipelines: Constitutionality And Reviewability, Joan Campau
Michigan Journal of Environmental & Administrative Law
Federal oversight of cross-border pipelines occurs during the presidential permitting process. Pursuant to Executive Order 13337, the Department of State is authorized to review applications and grant permits to projects that “serve the national interest.” Scholars and litigants have questioned the constitutionality of this process and reviewability under the Administrative Procedure Act (“APA”). This Note argues that the permitting process is constitutional and derives legitimacy from both the executive powers explicitly enumerated in the Constitution as well as an implicit sanction from the legislative branch. Further, this Note argues that APA review is appropriate for at least one component of …
National Security Lawyering: The Best View Of The Law As A Regulative Ideal, Mary B. Derosa
National Security Lawyering: The Best View Of The Law As A Regulative Ideal, Mary B. Derosa
Georgetown Law Faculty Publications and Other Works
In The National Security Lawyer in Crisis: When the “Best View” of the Law May Not Be the Best View, Robert Bauer describes the challenges for executive branch lawyers providing advice during a national security crisis. Bauer focuses on two especially perilous episodes in United States history—the Cuban Missile Crisis and the run-up to U.S. involvement in World War II—and analyzes the legal advice Presidents Kennedy and Roosevelt, respectively, received. In both cases, widely respected lawyers gave legal advice that supported the President’s preferred outcome, but almost certainly did not represent what the lawyers considered the best view of …
Rule Of Law In The Age Of The Drone: Requiring Transparency And Disqualifying Clandestine Actors—The Cia And The Joint Special Operations Command, Thomas Michael Mcdonnell
Rule Of Law In The Age Of The Drone: Requiring Transparency And Disqualifying Clandestine Actors—The Cia And The Joint Special Operations Command, Thomas Michael Mcdonnell
University of Miami Law Review
Since shortly after 9/11, weaponized drones have become part of the fabric of United States policy and practice in countering Islamic terrorist organizations and personnel. Although many diplomats, UN officials, and scholars have criticized the widespread use of this weapon system for “targeted killing,” drones are here to stay. But how much investigation and oversight must a democratic country carry out over such a program, and more critically, how can a country do so effectively when the Executive has handed primary responsibility for drone targeted killing attacks to its clandestine forces, the Central Intelligence Agency and the Joint Special Operations …
Next Generation Foreign Intelligence Surveillance Law: Renewing 702, William C. Banks
Next Generation Foreign Intelligence Surveillance Law: Renewing 702, William C. Banks
University of Richmond Law Review
No abstract provided.
The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese
The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese
All Faculty Scholarship
The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the …
Administrative Law: The U.S. And Beyond, Cary Coglianese
Administrative Law: The U.S. And Beyond, Cary Coglianese
All Faculty Scholarship
Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
All Faculty Scholarship
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 …
Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger
Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger
Articles
Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …
Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger
Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger
Articles
Inducing governmental organizations to do the right thing is the central problem of public administration. Especially sharp challenges arise when “the right thing” means executing not only a primary mission but also constraints on that mission (what Philip Selznick aptly labeled “precarious values”). In a classic example, we want police to prevent and respond to crime and maintain public order, but to do so without infringing anyone’s civil rights. In the federal government, if Congress or another principal wants an executive agency to pay attention not only to its mission, but also to some other constraining or even conflicting value—I …
Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener
Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener
Articles
This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …
Constitutional Conflict And Congressional Oversight, Andrew Mccanse Wright
Constitutional Conflict And Congressional Oversight, Andrew Mccanse Wright
Marquette Law Review
In matters of oversight, Congress and the President have fundamentally incompatible views of their institutional roles within the constitutional structure. This Article offers an explanation of divergent branch behavior and legal doctrine. Congress, much like a party to litigation, views itself as having fixed substantive rights to obtain desired information from the Executive and private parties. In contrast, the Executive views itself like a party to a business transaction, in which congressional oversight requests are the opening salvo in an iterative negotiation process to resolve competing interests between co-equal branches. In general, legislators want to litigate and executive officers want …
The President's Enforcement Power, Kate Andrias
The President's Enforcement Power, Kate Andrias
Articles
Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …
Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson
Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson
Articles
This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …
Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese
Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese
All Faculty Scholarship
Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …
The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss
The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss
Faculty Scholarship
Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.
Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss
Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss
Faculty Scholarship
All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of …
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 …
Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson
Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson
Articles
This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …
Ordered Liberty And The Homeland Security Mission, James E. Baker
Ordered Liberty And The Homeland Security Mission, James E. Baker
Georgetown Law Faculty Publications and Other Works
This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant …
Executive-Branch Rulemaking And Dispute Settlement In The World Trade Organization: A Proposal To Increase Public Participation, Aubry D. Smith
Executive-Branch Rulemaking And Dispute Settlement In The World Trade Organization: A Proposal To Increase Public Participation, Aubry D. Smith
Michigan Law Review
This Note argues that, because the Executive Branch increasingly will be promulgating domestic regulatory rules intended to comply with the rules of the world-trading system, it is necessary to increase formal oversight of the Executive Branch's role in that context. Part I argues that the United States' participation in the WTO implies a substantial increase in the impact of foreign policy on domestic policy. Part II points out a loophole in Congress's attempt to compensate for this increase by installing various devices to ensure political oversight of the Executive: the Executive Branch is subject, under the Uruguay Round Agreements Act …