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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.


How The Administrative State Got To This Challenging Place, Peter L. Strauss Jan 2020

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

Faculty Scholarship

This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development ...


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 ...


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 ...


Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm Jan 2020

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to ...


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.


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 ...


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 ...


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 ...


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 ...


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 ...


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 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 ...


The Administrative Conference And The Political Thumb, Peter L. Strauss Jan 2014

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

Faculty Scholarship

Two recent drafts posted on SSRN identify very different yet canonical lines of cases, both prominent in the teaching of administrative law, as the source of ills stemming from the pre-notice period of contemporary rulemaking. That period has assumed a determinative importance in seeming conflict with the assumptions of flexibility inherent in the Administrative Procedure Act’s provisions for public comment on notices once published. In "The Administrative Conference and Empirical Research," Richard Pierce celebrates the catalyzing effect the Administrative Conference of the United States has had on hands-on empirical research about administrative law. He finds in two recent studies ...


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 ...


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 ...


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 ...


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 ...


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.


Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman Jan 2009

Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman

Faculty Scholarship

This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush's presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting ...


Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss Jan 2009

Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss

Faculty Scholarship

This is the introductory essay in an electronically published roundtable sponsored by the Vanderbilt Law Review on the Supreme Court's forthcoming consideration of Free Enterprise Fund v. Public Company Accounting Oversight Board, a case raising important separation of powers questions and thought by some to foreshadow overruling or limiting of such precedents as Humphrey's Executor v. United States (sustaining independent regulatory commissions) and Morrison v. Olson (sustaining the independent counsel). The PCAOB is an unusual independent government authority appointed by the Commissioners of the SEC and subject to its oversight; PCAOB members are only by the Commission, and ...


Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss Jan 2009

Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss

Faculty Scholarship

Written for a forthcoming book on e-governance and e-democracy, this essay summarizes the current state of play in electronic rulemaking in the United States. It thus focuses on a context in which the use of electronic consultation by “executive branch” actors engaged in policy-making has been developing for over a decade, and has reached a point of considerable, although not final maturity. Initially developed haphazardly, agency-by-agency, it is now (albeit with friction in the gears) moving towards a centralized regime. The practice is rarely consultative in the full sense the book as a whole will address; while the public is ...


Our Twenty-First Century Constitution, Peter L. Strauss Jan 2009

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional ...


Legislation That Isn't – Attending To Rulemaking's Democracy Deficit, Peter L. Strauss Jan 2009

Legislation That Isn't – Attending To Rulemaking's Democracy Deficit, Peter L. Strauss

Faculty Scholarship

Written in celebration of Philip Frickey’s many contributions to the legislation literature, this essay is a further effort to understand the President’s relationship to administrative agency rulemaking. On the one hand, the President’s executive authority precludes the possibility that he is to be a lawmaker (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (opinion of Black, J.)); on the other, we unhesitatingly embrace agency rulemaking – as, indeed, as a practical matter, we must. On the one hand, “where the heads of departments are ... to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts ...


Rulemaking And The American Constitution, Peter L. Strauss Jan 2009

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise ...


The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger Jan 2009

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

This Essay, prepared as part of the Emory Law Journal’s 2009 Thrower Symposium on Executive Power, addresses internal separation of powers constraints on the executive branch. After briefly describing the form such constraints take and assessing their constitutional legitimacy, the Essay takes up the question of whether internal constraints can be an effective restraint on presidential aggrandizement. I argue that although such constraints can have some purchase, focusing solely on internal measures frames the inquiry too narrowly and ignores the important interdependent relationship between internal and external checks on executive power. The Essay concludes with an assessment of one ...


Deep Secrecy, David Pozen Jan 2009

Deep Secrecy, David Pozen

Faculty Scholarship

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being ...