Law Commons^™

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Disappropriation, Matthew B. Lawrence

Faculty Articles

In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include …

A Functional Theory Of Congressional Standing, Jonathan R. Nash

Faculty Articles

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott

Faculty Articles

While the use of civilian contractors to support military operations is not a new phenomenon, their use in the War on Terror is unprecedented. The numbers of civilian contractors in active combat zones and the specific activities they perform have significant legal and policy ramifications.

Recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments has given rise to a “political question” doctrine. This doctrine excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution.

Due to …

The Ethical Foundations Of American Judicial Independence, Vincent R. Johnson

Faculty Articles

Most lawyers and many citizens could recall the federal constitutional basis for judicial independence. Article III of the United States Constitution mandates that positions be filled through appointment by the President and confirmation by the Senate. That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence.

Additionally, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, non-reducible compensation, and removal only through impeachment. These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. …

Constitutional Law—Presidential Immunity—The President Is Absolutely Immune From Civil Damages Liability For Acts Done Within The “Outer Perimeter” Of His Official Capacity (Casenote), Laura H. Burney

Faculty Articles

The Supreme Court theorized absolute immunity for the President must be found in the separation of powers doctrine. Because of the broad range and sensitive nature of the President's responsibilities, his constant visibility, and the judicial deference he has historically been accorded, the Court concluded in Nixon v. Fitzgerald that civil damages suits would unduly distract the President from his official duties. Furthermore, because the President's actions can affect innumerable people, the Court feared the scrutiny inherent in civil damages suits would be overly intrusive. Accordingly, the Court considered it too difficult to align a particular result with one of …

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …