Law Commons^™

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme …

Can Appropriation Riders Speed Our Exit From Iraq?, Charles Tiefer

All Faculty Scholarship

To explore the implications of riders - provisions added to appropriation bills that "ride" on the underlying bill - on the United States' continued military force in Iraq, the author draws three hypotheticals, each focusing on the debate surrounding the policy and political disputes raised by the use of such riders. A "withdrawal" rider, which would authorize funding only if there exists a plan to withdraw American ground troops by a set deadline, remains the most important - and controversial - rider. Riders may also significantly affect wartime policies, like those that limit the President's use of reservists in combat …

Congressional Administration, Jack M. Beermann

Faculty Scholarship

In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …

Internal Separation Of Powers: Checking Today's Most Dangerous Branch From Within, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial …