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2021

Congress

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Full-Text Articles in Law

With Coronavirus Ravaging The Economy, Congress Shows Highest Tax Priorities: An Exploration Of The Provisions In The Cares Act And Beyond, Paul Nylen, Brian Huels, Shane Wheeler Dec 2021

With Coronavirus Ravaging The Economy, Congress Shows Highest Tax Priorities: An Exploration Of The Provisions In The Cares Act And Beyond, Paul Nylen, Brian Huels, Shane Wheeler

University of Miami Business Law Review

The virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to …


Doers Not Dreamers: Supporting Un-Daca-Mented Students After College, Fatima Perez Murguia Dec 2021

Doers Not Dreamers: Supporting Un-Daca-Mented Students After College, Fatima Perez Murguia

Capstone Projects and Master's Theses

Thinking about life after college can be exciting. However, for some, it can be a scary and uncertain time. The focus issue addressed in this Capstone Project is on how to support undocumented college students better to prepare them for life after graduation. This is an important issue for undocumented college students because they are working hard to earn their degrees but cannot get a job in the fields they are prepared for. An evidence-based argument is made that investment should be made in the future of undocumented students, as they are well prepared and qualified to take on jobs …


Delegation, Administration, And Improvisation, Kevin Arlyck Dec 2021

Delegation, Administration, And Improvisation, Kevin Arlyck

Notre Dame Law Review

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …


Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh Dec 2021

Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh

Notre Dame Law Review

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …


We’Ll Protect You! Oh, Wait, But Not You. Or You, You, Or You: The Consequences Of The Court’S Major Undertaking In Department Of Homeland Security V. Thuraissigiam, Jae Lynn Huckaba Nov 2021

We’Ll Protect You! Oh, Wait, But Not You. Or You, You, Or You: The Consequences Of The Court’S Major Undertaking In Department Of Homeland Security V. Thuraissigiam, Jae Lynn Huckaba

University of Miami Law Review

For centuries, the writ of habeas corpus has been used to test the legality of restraints on a person’s freedom. The Founders, recognizing the significance of the protection, incorporated the writ into the Suspension Clause of our Constitution. In the last century, the Supreme Court has repeatedly held that noncitizens may invoke the Suspension Clause. Courts, especially in the immigration context, also expanded the definition of “in custody” for the purpose of habeas corpus to included non-detained persons in removal proceedings. The Supreme Court has departed from such precedent and gave new meaning to habeas corpus in the immigration context—a …


How Biden Began Building Back Better The Federal Bench, Carl Tobias Sep 2021

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …


Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos Jul 2021

Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos

University of Miami Law Review

Materiality plays an important role in limiting the reach of laws that penalize misrepresentations. Laws that include no materiality element punish any covered misrepresentation regardless of its relevance—like lying about hair color on a loan application. By contrast, laws that include a materiality element withhold punishment for immaterial misrepresentations of that kind—in other words, misrepresentations that have no tendency to affect the ultimate decision.
Our immigration laws make it a deportable offense for a noncitizen to “falsely represent” herself as a U.S. citizen for a purpose or benefit under the law. Although this law has been on the books for …


Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa May 2021

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …


From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam Gilles, Tanuja Gupta Apr 2021

From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam Gilles, Tanuja Gupta

Chicago-Kent Law Review

No abstract provided.


Biden’S Border Problem, And How To Fix It, Peter Margulies Apr 2021

Biden’S Border Problem, And How To Fix It, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson Apr 2021

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …


“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein Mar 2021

“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 …


Democracy Under Attack: Iowa’S ‘Bloody Second’, Dylan Mccloskey Mar 2021

Democracy Under Attack: Iowa’S ‘Bloody Second’, Dylan Mccloskey

SLU Law Journal Online

The 2020 election is in the past for most Americans, but not for Iowans who live in the Second Congressional District where a contested election challenge is just beginning. Dylan McCloskey discusses how a contested election works and what impact this may have on our democracy.

*Photo by Darren Halstead on Unsplash


Antitrust Antitextualism, Daniel A. Crane Mar 2021

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …


Like “Nobody Has Ever Seen Before”: Precedent And Privilege In The Trump Era, Heidi Kitrosser Jan 2021

Like “Nobody Has Ever Seen Before”: Precedent And Privilege In The Trump Era, Heidi Kitrosser

Chicago-Kent Law Review

No abstract provided.


Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent Jan 2021

Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent

Chicago-Kent Law Review

No abstract provided.


The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn Jan 2021

The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn

Chicago-Kent Law Review

No abstract provided.


The Senate, The Trump Impeachment Trial And Constitutional Morality, Joel K. Goldstein Jan 2021

The Senate, The Trump Impeachment Trial And Constitutional Morality, Joel K. Goldstein

Chicago-Kent Law Review

No abstract provided.


The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka Jan 2021

The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka

LL.M. Essays & Theses

The Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.

This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue Code of 1986. …


Challenges To The Independence Of Inspectors General In Robust Congressional Oversight, Fernando R. Laguarda Jan 2021

Challenges To The Independence Of Inspectors General In Robust Congressional Oversight, Fernando R. Laguarda

Articles in Law Reviews & Other Academic Journals

Congressional oversight of the Executive is among the chief responsibilities of the legislative branch. Inspectors General ("IGs") are among the most important tools available to Congress because they are "hard-wired" into the Executive itself. The value of IGs to Congress depends on their expertise in the workings of their host agencies and their "independence" from those agencies. But "independence" is not a statutorily defined term. As the agencies, and sometimes Congress itself, expand the role of IGs to engage in activities that parallel the regulatory programs of their host agencies, IG independence is compromised and the value IGs provide to …


Ostracism And Democracy, Alex Zhang Jan 2021

Ostracism And Democracy, Alex Zhang

Faculty Articles

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first …


Keeping Up: Walking With Justice Douglas, Charles A. Reich Jan 2021

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.


National Animal Abuse Registry Reform: To Be Effective And Provide Prospective, A National Animal Abuse Registry Must Be The Next Directive, Kaleigh M. Gorman Jan 2021

National Animal Abuse Registry Reform: To Be Effective And Provide Prospective, A National Animal Abuse Registry Must Be The Next Directive, Kaleigh M. Gorman

Touro Law Review

No abstract provided.


Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro Jan 2021

Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro

Touro Law Review

No abstract provided.


Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence Jan 2021

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …


Of Arms And The Militia: Gun Regulation By Defining “Ordinary Military Equipment”, Edward J. Curtis Jan 2021

Of Arms And The Militia: Gun Regulation By Defining “Ordinary Military Equipment”, Edward J. Curtis

Touro Law Review

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. There is no obvious public safety exception.

Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the “ordinary military equipment” militia members are expected to provide. This may be accomplished using the rationale employed by the United States …


Can Small Donations Have Big Consequences? Candidate Ideology, Small Donations, And Election Results In The 2016 And 2018 Congressional Cycles, Michael Borecki Jan 2021

Can Small Donations Have Big Consequences? Candidate Ideology, Small Donations, And Election Results In The 2016 And 2018 Congressional Cycles, Michael Borecki

Honors Projects

Small donors have provided an increased share of total campaign contributions in the 2016, 2018, and 2020 U.S. federal election cycles, including about $3 billion of the $14.4 billion raised in 2020. Campaign funding is still dominated by an influential set of large donors, but small donations may be the basis for an effective response to the disproportionate amount of “big money” in politics. This study investigates whether candidates who are more extreme perform better with small donors, and then examines the impact of small donations and overall funding on election results. These analyses were performed using linear sum-of-squares regression …


Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness Jan 2021

Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness

Faculty Publications

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid-1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international …


Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher Jan 2021

Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher

Touro Law Review

No abstract provided.


Locking The Golden Door And Throwing Away The Key: An Analysis Of Asylum During The Years Of The Trump Administration, Samantha B. Karpman Jan 2021

Locking The Golden Door And Throwing Away The Key: An Analysis Of Asylum During The Years Of The Trump Administration, Samantha B. Karpman

Touro Law Review

The years of the Trump Administration have certainly been some of the most divisive in modern American political history. One of the largest divides arose from former President Trump’s brazen, “zero tolerance” immigration policies that relentlessly attacked many forms of immigration coming into the United States. Asylum-based immigration, which allows immigrants to come to this country as a safe haven when they are fleeing persecution in their home countries, was one of former President Trump’s main targets. Former President Trump even came dangerously close to eliminating asylum-based immigration with his “Death to Asylum” policy in December of 2020. President Biden …