Law Commons^™

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Legislating Against Liberties: Congress And The Constitution In The Aftermath Of War, Harry Blain

Dissertations, Theses, and Capstone Projects

How far can a democracy go to protect itself without jeopardizing the liberties upon which democracy depends? This dissertation examines why wartime restrictions on civil liberties outlive their original justifications. Through a comparative historical analysis of five major American wars, it illustrates the decisive role of the U.S. Congress in preserving these restrictions during peacetime. This argument challenges the prevailing consensus in the literature, which identifies wartime executive power as the main threat to postwar freedoms. It also reveals broader narratives of American constitutional development, including the rise and fall of intrusive congressional investigations, the decline of sedition legislation since …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

House Rules: Congress And The Attorney-Client Privilege, David Rapallo

Georgetown Law Faculty Publications and Other Works

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …

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

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 …

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 …

“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 …

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

Chicago-Kent Law Review

No abstract provided.

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

Chicago-Kent Law Review

No abstract provided.

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

Chicago-Kent Law Review

No abstract provided.

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 …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Presidential Control Of Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

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.

Rethinking The Federal Courts: Why Now Is Time For Congress To Revisit The Number Of Judges That Sit On Federal Appellate Panels, Mitchell W. Bild

Chicago-Kent Law Review

No abstract provided.

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

Articles

Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

Consent Of The Governed: A Constitutional Norm That The Court Should Substantially Enforce, David Schoenbrod

Articles & Chapters

Available at https://www.harvard-jlpp.com/

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Presidential Control Over Disputed Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …

The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt

Channels: Where Disciplines Meet

How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of these …

John Quincy Adams Influence On Washington’S Farewell Address: A Critical Examination, Stephen Pierce

Undergraduate Research

John Quincy Adams is seen by the American public today as a failed one-term president. When one starts to see his diplomatic work and his service in Congress, however, he becomes one of the most important figures in American history. The diplomatic historian Samuel Flagg Bemis was in 1944 the first historian to suggest that Adams’ early writings influenced Washington’s Farewell Address. He looked through some of Adams’ early published writings and concluded that it was, “Conspicuous among the admonitions of the Farewell Address are: (1) to exalt patriotically the national words, America, American, Americans; (2) to beware of foreign …

Law Library Blog (January 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins

Mitchell Hamline Law Review

No abstract provided.

Barack Obama's Emancipation Proclamation: An Essay In Memory Of Judge Richard D. Cudahy, Jack M. Beermann

Faculty Scholarship

In a case involving whether illegal immigrants were protected under federal labor law, Judge Richard Cudahy, observed that illegal immigrants are often at the mercy of unscrupulous employers and that immigrations laws provide employers “with a powerful tool for unfair and oppressive treatment of migrant labor.” There are millions of people in the United States who are vulnerable to exploitation in the workplace due to their illegal immigration status. In 2012 and 2014, the Obama administration announced programs designed to provide limited security to some of the millions of illegal immigrants present in the United States. These programs are, in …

Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai

Faculty Scholarship

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …