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Articles 1 - 6 of 6
Full-Text Articles in Law
Our Twenty-First Century Constitution, Peter L. Strauss
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 necessity …
Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss
Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss
Faculty Scholarship
In the wake of the Enron and WorldCom accounting scandals, Congress created the Public Company Accounting Oversight Board (“PCAOB”) under the aegis of the Securities and Exchange Commission (“SEC”), with President Bush’s support. Its purpose was to replace deficient accounting industry self-regulation with effective external regulation. The choices it made in doing so engendered passionate arguments about constitutionally necessary presidential authority and separation of powers. These divided the D.C. Circuit 2-1 and will be rehearsed before the Supreme Court in the coming weeks. President Bush’s administration defended those choices; Judge Rogers, writing for the majority, found no valid constitutional objection …
Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman
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 priorities …
Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss
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 …
Rulemaking And The American Constitution, Peter L. Strauss
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. …
Presidential Popular Constitutionalism, Jedediah S. Purdy
Presidential Popular Constitutionalism, Jedediah S. Purdy
Faculty Scholarship
This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens' constitutional understandings. This Article sets out a "grammar" of …