Law Commons^™

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 …

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Two Views On The Nationwide Injunction, Jack M. Beermann

Shorter Faculty Works

I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted …

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …

Co-Belligerency, Rebecca Ingber

Faculty Scholarship

Executive branch officials rest the President’s authority in today’s war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 “Authorization for Use of Military Force” (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call “co-belligerency.” Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered …

The Obama War Powers Legacy And The Internal Forces That Entrench Executive Power, Rebecca Ingber

Faculty Scholarship

In exploring the Obama war powers legacy, this essay examines the systemic forces inside the executive branch that influence modern presidential decision-making and, barring a total reimagining of the executive branch, will operate on administrations to come. These mechanisms and norms fall broadly within two categories: (1) features that favor continuity and hinder presidents from effecting change, including both novel assertions of executive power and attempts to dial back that power; and (2) features that incrementally aggrandize such power claims. Together, these two sets of forces operate as a one-way ratchet, slowly expanding and ultimately entrenching executive branch power.

Interpretation Catalysts And Executive Branch Legal Decisionmaking, Rebecca Ingber

Faculty Scholarship

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise …

A Skeptical View Of A Skeptical View Of Presidential Term Limits, Jack M. Beermann

Faculty Scholarship

Dean Jeremy Paul is concerned that the presidency has been weakened and that the Twenty-Second Amendment’s limitation on presidential service is at least partly to blame. Dean Paul is clearly correct that once a President reaches the point beyond which re-election is not constitutionally possible, the President is effectively a lame duck. Dean Paul further points out that since 1951 when the amendment limiting Presidents to two terms went into effect, there have been several instances of very poor results in the President’s second term. He attributes the second term problems of some recent Presidents at least partly to term …

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai

Faculty Scholarship

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …