Law Commons^™

Partisanship Creep, Katherine Shaw

Northwestern University Law Review

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Overview Of Bicameral Legislatures’ Potential Impact On The Executive Selection Process, Kyle Kopchak

Indiana Journal of Constitutional Design

Bicameral legislature is a common constitutional design model, with bicameral legislatures making up roughly 41 percent of all legislatures worldwide. As of April 2014, 79 bicameral and 113 unicameral systems were recorded in the database of the Inter-Parliamentary Union. In general, “bicameralism is more common in federal, large, and presidential states, while unicameralism is more common in unitary, small, parliamentary ones”. Bicameral systems operate two legislative chambers, both of which play a role in drafting and passing national legislation. However, each house often fulfills a unique role in the legislative process and is usually elected by different methods. Proponents of …

“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein

Pepperdine Law Review

On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Will Cyber Autonomy Undercut Democratic Accountability?, Ashley Deeks

International Law Studies

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force …

The Immigration Judiciary's Need For Independence: Breaking Free From The Shackles Of The Attorney General, Daniel R. Buteyn

Mitchell Hamline Law Review

No abstract provided.

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

University of Colorado Law Review

No abstract provided.

Preventing Presidential Disability Within The Existing Framework Of The Twenty-Fifth Amendment, Ryan T. Harding

University of Arkansas at Little Rock Law Review

No abstract provided.

Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec

Pepperdine Law Review

Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of …

Controlling Presidential Control, Kathryn A. Watts

Michigan Law Review

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality. Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance

University of Miami International and Comparative Law Review

No abstract provided.

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Northwestern University Law Review

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation.

This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose …

Congress's International Legal Discourse, Kevin L. Cope

Michigan Law Review

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over …

Congressional Arbitrage At The Executive's Expense: The Speech Or Debate Clause And The Unenforceable Stock Act, Anna Fodor

Northwestern University Law Review

No abstract provided.

A Functional Theory Of Congressional Standing, Jonathan Remy Nash

Michigan Law Review

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-ofpowers 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 …

Actually We Should Wait: Evaluating The Obama Administration’S Commitment To Unilateral Executive-Branch Action, William P. Marshall

Utah Law Review

This Article agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good.9 It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

Executive Power In The Obama Administration And The Decision To Seek Congressional Authorization For A Military Attack Against Syria: Implications For Theories Of Unilateral Action, Kenneth R. Mayer

Utah Law Review

The primary axiom of the unilateral-powers literature is that the institutional setting and political incentives that confront presidents push them to seek maximum discretion over policy. The straightforward implication is that presidents will seek control (Terry Moe calls it autonomy)—always contentious given the competitive political authority at the heart of separation of powers, but necessary to them given their interests and position in the political system. Empirically, presidents are expected to (and do) act unilaterally, moving first to put their stamp on policy and process, shape institutional structures, and alter the status quo to shift government outputs toward their preferred …

The Struggle Over Executive Appointments, John C. Roberts

Utah Law Review

This Article argues that the long-term struggle between the President and the Senate over executive appointments has now reached a crisis and that we may be approaching a point where the President’s crucial duty to take care that the laws be faithfully executed is significantly impaired. During the Obama administration, an unprecedented number of judgeships and executive branch positions remain unfilled, threatening the smooth functioning of government at an especially demanding time.

Holding The President Accountable To Constitutional Limits, Louis Fisher

Utah Law Review

As with Congress and the judiciary, presidents have access to powers expressly stated in the Constitution and those necessarily implied in those grants. In highly limited circumstances, presidents may also exercise a “prerogative” (i.e., unilateral action), but that authority is frequently misunderstood and subject to abuse. Unlike those in the other branches, presidents lay claim to a host of powers far beyond enumerated and implied powers. In seizing steel mills in 1952 to prosecute the war in Korea, President Harry Truman acted on what he called an “inherent” power that was not subject to judicial or legislative checks. Presidents Richard …

Competing With The “Patent Court”: A Newly Robust Ecosystem, Arti K. Rai

Chicago-Kent Journal of Intellectual Property

In a provocative address, Chief Judge Wood of the Seventh Circuit Court of Appeals suggests exposing the Court of Appeals for the Federal Circuit, created in 1982 to hear all appeals from patent cases, to competition from sister appellate courts. This response, published as part of a Symposium on Chief Judge Wood's address, argues that competition is indeed desirable. Whether such competition is best provided by other appellate courts is unclear, however. The more tractable approach is to improve competitive input from sources that have already emerged. These include dissenting Federal Circuit judges, parties and amici who are not "patent …

City Of Arlington V. Fcc: Jurisdictional Or Nonjurisdictional, Where To Draw The Line?, Whitney Ruijuan Hao

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Role Of The Olc In Providing Legal Advice To The Commander-In-Chief After September 11th: The Choices Made By The Bush Administration Office Of Legal Counsel, Arthur H. Garrison

Journal of the National Association of Administrative Law Judiciary

The first two roles of the U.S. Attorney General from its inception were to represent the interests of the United States before the U.S. Supreme Court and to advise the President on matters of the law. Despite the Attorney General delegating both roles, the former to the Solicitor General and the latter to the Office of Legal Counsel (OLC), the Attorney General and the Department of Justice are by statute and tradition looked upon to be the protectors of the rule of law within the Executive Branch. It is to the Attorney General, and by delegation to the OLC, to …

Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry

Pepperdine Law Review

Although traditionally it has been recognized that the President is absolutely immune from personal damage liability for his official acts, there is no precedent for this rule in constitutional text or case law. However, in the case of Nixon v. Fitzgerald, the Supreme Court overruled lower federal courts in establishing a clear precedent for the President's absolute immunity from personal liability for civil damages. The author examines this decision in light of traditional principles of official immunity and analyzes the Court's holding from the standpoint of whether the President is indeed placed "above the law."

The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer

Pepperdine Law Review

The United States Constitution created an internally dependent tripartite governing scheme which relied upon a carefully drafted system of checks and balances as a means of self-regulation. Recent years have seen increased conflicts between the separate branches, the most recent of which is the occasion for this article. The article traces the rise and fall of the power exercised by the various branches and then focuses on the recent confrontation between Congress and the executive branch concerning the actions of the Environmental Protection Agency and the subsequent resignation of Anne McGill Burford. Of particular interest to this inquiry is the …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth

University of Michigan Journal of Law Reform

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …

Toward Comprehensive Reform Of America's Emergency Law Regime, Patrick A. Thronson

University of Michigan Journal of Law Reform

Unbenownst to most Americans, the United States is presently under thirty presidentially declared states of emergency. They confer vast powers on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, seize control of the nation's communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and extend tours of duty without consent from service personnel. Declared states of emergency may also activate Presidential Emergency Action Documents and other continuity-of-government procedures, which confer powers on the President-such as the unilateral suspension of habeas corpus-that appear fundamentally opposed to …

A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman

Journal of Law and Health

Washington lawyers constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, and it should be improved in its civility.

Peter Aucoin, Mark D.Jarvis &Lori Turnbull, Democratizing The Constitution: Reforming Responsible Government, Gregory Tardi

Dalhousie Law Journal

In the aftermath of the Prorogation of Parliament on December 4, 2008, upon the advice of Prime Minister Stephen Harper to then Governor General Michaelle Jean, a particular theme in Canadian literature about governance has flourished. This theme is the influence ofconstitutionalism, democracy and legitimacy on government and politics. In the view of many scholars there is a serious imbalance between the executive branch on one hand and the legislative branch on the other. The sense ofimbalance has generated proposals for changes to the practice of Westminster-style parliamentary democracy in the service of democratic legitimacy.

Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle

Journal of Dispute Resolution

As I will discuss below, White House decision-making and OIRA regulatory review have a hierarchical component that is at odds with the horizontal nature of collaboration. The President's constitutional duties to manage the executive branch and OIRA's role as his agent in regulatory review require strong oversight of agency regulatory activity. Rulemaking is one means by which the executive branch implements not only statutory mandates, but also presidential policy; any sitting President would be loathe to delegate his authority to a collaborative panel. Nonetheless, the benefits of collaboration can be substantial, and the President could use his authority to encourage …