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Full-Text Articles in Law
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
College of Law - Faculty Scholarship
This article develops a duty-based theory of executive power. This theory maintains that the Constitution seeks to instill a duty in all executive branch officers to faithfully execute the law. Conversely, the Constitution's framers and ratifiers did not intend to empower the President to distinctively shape the law to suit his policy preferences or those of his party. Rather, they envisioned a model of "disinterested leadership" serving rule of law values. Because of the ratifiers' and framers' interest in preventing abuse of executive power the Constitution obligates executive branch officials to disobey illegal presidential directives and creates a major Congressional …
Firing U.S. Attorneys: An Essay, David M. Driesen
Firing U.S. Attorneys: An Essay, David M. Driesen
College of Law - Faculty Scholarship
This essay examines the constitutional basis for Justice Department independence, the main constitutional issue underlying the recent dismissal of United States Attorneys. It outlines a duty-based theory of executive power, a theory that Article II should be understood as a set of checks and balances to secure faithful execution of the law, rather than solely as a source of Presidential power. It shows how this theory can provide a constitutional justification for Justice Department independence. The essay reexamines the unitary executive theory which claims that the Constitution gives the President unlimited power to fire prosecutors in the context of the …
Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen
Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen
College of Law - Faculty Scholarship
This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern …
Loose Canons: Statutory Construction And The New Nondelegation Doctrine, David M. Driesen
Loose Canons: Statutory Construction And The New Nondelegation Doctrine, David M. Driesen
College of Law - Faculty Scholarship
This article asks whether courts or administrative agencies have constitutional authority to narrowly construe statutes to save them from truly serious nondelegation claims. It explains why the Court correctly rejected administrative saving construction in American Trucking Ass'ns v. Whitman, and why the rationale supporting this rejection applies to courts as well as to agencies. This article also questions recent arguments that the nondelegation doctrine has found a new and appropriate home among canons of statutory construction. Judicial saving construction could lead to great expansion of judicial authority to make public law at the expense of the more democratic branches of …