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How The Administrative State Got To This Challenging Place, Peter L. Strauss Jan 2021

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within ...


Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard Jan 2021

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.


Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger Jan 2021

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new ...


War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman Jan 2020

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer ...


Coordinating Injunctions, Bert I. Huang Jan 2020

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then proposes ...


Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman Jan 2020

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the ...


Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele Jan 2020

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.


Fixing America's Founding, Maeve Glass Jan 2020

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning ...


The Trump Administration And The Rule Of Law, Peter L. Strauss Jan 2019

The Trump Administration And The Rule Of Law, Peter L. Strauss

Faculty Scholarship

Written for a French audience in 2017, this article sought to frame the explosive issues about the Trump presidency in relation to the American trend to strong views of the unitary executive, that in the author's view ignore the striking contrast between to propositions in Article II Section 2 of the Constitution, its only words defining presidential power. Made "Commander in chief" of the military, he is next given the power only to require the opinion in writing from the heads of the executive bodies Congress was expected to create how they intended to carry out the duties Congress ...


Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen Jan 2019

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of ...


Is Korematsu Good Law?, Jamal Greene Jan 2019

Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.


The Trump Administration And Administrative Law, Peter L. Strauss Jan 2019

The Trump Administration And Administrative Law, Peter L. Strauss

Faculty Scholarship

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law

Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to ...


Presidents And War Powers, Matthew C. Waxman Jan 2018

Presidents And War Powers, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given rise to two major questions about presidential war powers: first, what should be the president’s role in taking the country to war, and, second, what are the president’s powers to direct its conduct. Historian Michael Beschloss’s new book, “Presidents of War,” examines how presidents have responded to each of these questions across two hundred years of U.S ...


Trump As A Constitutional Failure, Jamal Greene Jan 2018

Trump As A Constitutional Failure, Jamal Greene

Faculty Scholarship

The election of Donald Trump as president represented a failure of American politics. Trump is a serial liar, a sexual predator, deeply conflicted financially, hostile to bedrock democratic institutions such as free press, and ignorant of even the broad brushstrokes of important policy matters. The best evidence suggests that he is a white nationalist, a plutocrat, and a professional con artist, dangerously attracted to corrupt and incompetent sycophants, self-obsessed and aggressive to the point of psychopathy, and otherwise temperamentally unfit to be in charge of the world’s largest military and nuclear arsenal. There is some evidence that Trump or ...


Things Left Unsaid, Questions Not Asked, Peter L. Strauss Jan 2016

Things Left Unsaid, Questions Not Asked, Peter L. Strauss

Faculty Scholarship

The University of Pennsylvania Law Review’s symposium on executive discretion, held in the fall of 2015 but just published this November, is an important undertaking, but it is remarkable for several silences – for things left unsaid on this important subject – and for questions not asked. First, although the Constitution’s “Take Care” Clause is extensively discussed, the one power Article II gives the President over domestic administration – to require the “Opinion, in writing” of the heads of the agencies Congress has invested with administrative duties – is not. Second, the discussion of the President’s undoubted but possibly constrained authority ...


Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss Jan 2016

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 ...


A Response To Professor Rascoff's Presidential Intelligence, Philip C. Bobbitt Jan 2016

A Response To Professor Rascoff's Presidential Intelligence, Philip C. Bobbitt

Faculty Scholarship

Professor Samuel Rascoff’s Presidential Intelligence reflects both the conceptual and research strengths of the author, which are formidable, and the practical difficulties of intelligence reform, which are no less so. Rascoff is certainly right that to be effective – in the still-unfolding constitutional environment that must contend with terror groups armed with unprecedented weapons and communications technology – the intelligence community (IC) must act within the law and the rules governing that community must be reformed to make this possible. He is inclined to believe that the answer lies in heightened presidential management. I’m not so sure. The actual presidential ...


Presidential Administration And The Traditions Of Administrative Law, Thomas W. Merrill Jan 2015

Presidential Administration And The Traditions Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which emphasize that all relevant interests must be given an opportunity to express their views and agencies must explain their decisions in a public and articulate fashion. In the twentieth century, American administrative law achieved a grand synthesis of these two traditions, with the result that ...


The Administrative Conference And The Political Thumb, Peter L. Strauss Jan 2015

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on the ground fact-finding by its consultants, who have usually been academics consulted at the beginning of careers that ever after would be marked by this encounter with the realities of the administrative process. As the mentee of Walter Gellhorn, who directed the remarkable empirical studies of federal agency procedures that underlay the eventual Administrative Procedure Act (“APA”) and who was a member of the ACUS Council from its initiation in 1964 ...


The President And The Constitution, Peter L. Strauss Jan 2015

The President And The Constitution, Peter L. Strauss

Faculty Scholarship

Controversies surrounding President Obama’s use of his office, no less than his immediate predecessors, heighten the interest of two recently published books, Harold Bruff’s “Untrodden Ground: How Presidents Interpret the Constitution” and Heidi Kitrosser’s “Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution.” This paper, written for a symposium held at Case Western University’s Law School shortly before either manuscript was finally published, draws on both in the service of a perception that the presidency exemplifies a tension that animates all of administrative law, between the worlds of law and politics. The aspiration to a ...


Self-Help And The Separation Of Powers, David Pozen Jan 2014

Self-Help And The Separation Of Powers, David Pozen

Faculty Scholarship

Self-help doctrines pervade the law. They regulate a legal subject's attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures – measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them. How does American constitutional law meet this challenge? This Article ...


Syria, Threats Of Force, And Constitutional War Powers, Matthew C. Waxman Jan 2013

Syria, Threats Of Force, And Constitutional War Powers, Matthew C. Waxman

Faculty Scholarship

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks – arguments that have failed to keep pace with changes in American grand strategy.


Syria, Threats Of Force, And Constitutional War Powers, Matthew C. Waxman Jan 2013

Syria, Threats Of Force, And Constitutional War Powers, Matthew C. Waxman

Faculty Scholarship

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks – arguments that have failed to keep pace with changes in American grand strategy.


The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen Jan 2013

The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen

Faculty Scholarship

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances ...


The Pre-Session Recess, Peter L. Strauss Jan 2013

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama ...


To Tax, To Spend, To Regulate, Gillian E. Metzger Jan 2012

To Tax, To Spend, To Regulate, Gillian E. Metzger

Faculty Scholarship

Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA's Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called "individual mandate") as the conscription of the healthy to subsidize the sick. This conflict over the federal government's proper role is, of course, not new; it has played ...


Foreword: Embracing Administrative Common Law, Gillian E. Metzger Jan 2012

Foreword: Embracing Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts – and to the extent courts do ...


Federalism Under Obama, Gillian E. Metzger Jan 2011

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

This article, prepared for a symposium at the William and Mary Law School on Constitutional Transformations to be published this fall in the William and Mary Law Review, analyzes the status of federalism under the Obama Administration. At first glance, federalism would seem to have fared poorly under the Obama Administration, given that the Administration’s signature achievements to date involve substantial expansions of the federal government’s role. But a careful examination of major measures such as health insurance and financial regulation reform, the stimulus, and preemption initiatives demonstrates that the story of federalism’s fate under the Obama ...


On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss Jan 2010

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

The Supreme Court’s decision last June in Free Enterprise Fund v. Public Company Accounting Oversight Board is torn between general principle and particularity in considering important questions of separation of powers in American constitutional law – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey’s Executor v. United States. The Supreme Court has a long history of reaching sensible results in its ...


The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss Jan 2010

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.