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Full-Text Articles in Law

Executive Branch Contempt Of Congress, Josh Chafetz Jul 2009

Executive Branch Contempt Of Congress, Josh Chafetz

Cornell Law Faculty Publications

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …


Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss Jan 2009

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …


Deep Secrecy, David E. Pozen Jan 2009

Deep Secrecy, David E. Pozen

Faculty Scholarship

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being …


Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand Jan 2009

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

Articles

This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …


The Separation Of Powers As A Safeguard Of Nationalism, Carlos Manuel Vázquez Jan 2009

The Separation Of Powers As A Safeguard Of Nationalism, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The separation of powers does not necessarily protect the states from having their law displaced by the federal government. Sometimes it does the opposite – it operates to perpetuate the existence of federal laws displacing state law. In such circumstances, the separation of powers is an obstacle to the devolution of legislative authority to the states. Consider the requirements of bicameralism and presentment. Bradford Clark is correct to note that the procedural requirements specified in the Constitution for federal law-making were designed to give a large voice to the states. At the beginning of our history, when the only laws …