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Swartbooi And Another V Speaker Of The National Assembly (Sa 38-2021) [2021] Nasc (4 August 2021), Dunia P. Zongwe Nov 2021

Swartbooi And Another V Speaker Of The National Assembly (Sa 38-2021) [2021] Nasc (4 August 2021), Dunia P. Zongwe

SAIPAR Case Review

In Swartbooi, the Supreme Court of Namibia failed to give flesh, blood and bones to a theory that could unify the cases that dealt with the separation of powers in Namibia. Though few lawyers would disagree with the outcome of its judgment, the Court nonetheless achieved this outcome by retreating into its legalistic shell.

At the same time, the Swaartbooi case completed a triangle that plotted all the possible relationships between the three organs of state in Namibia. After Ex parte in re: the Constitutional Relationship Between the Attorney-General and the Attorney-General (hereinafter referred to as ‘AG and PG’) addressed …


Executive Privilege - With A Catch: How A Crime-Fraud Exception To Executive Privilege Would Facilitate Congressional Oversight Of Executive Branch Malfeasance In Accordance With The Constitution's Separation Of Powers, Anthony W. Wassef May 2020

Executive Privilege - With A Catch: How A Crime-Fraud Exception To Executive Privilege Would Facilitate Congressional Oversight Of Executive Branch Malfeasance In Accordance With The Constitution's Separation Of Powers, Anthony W. Wassef

Cornell Law Review

A crime-fraud exception to assertions of executive privilege in response to congressional subpoenas would help level the playing field between the two branches in those moments when Congress is most needed to serve as a check and balance on the executive branch. A crime-fraud exception would signal to executive branch officials that executive privilege will not conceal their malfeasance; would counteract hyperpartisanship as a force that insulates executive branch officials from the consequences of their actions; and would rein in the expansive reach of protective assertions of executive privilege. For years, Congress has surrendered power to the executive branch. A …


The Brennan Lecture: The Separation Of Powers And The Public, Josh Chafetz Jan 2018

The Brennan Lecture: The Separation Of Powers And The Public, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.


Executive Opportunism, Presidential Signing Statements, And The Separation Of Powers, Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast Apr 2016

Executive Opportunism, Presidential Signing Statements, And The Separation Of Powers, Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast

Cornell Law Faculty Publications

Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not …


A Fourth Way?: Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz May 2015

A Fourth Way?: Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz

Cornell Law Faculty Publications

It sounds odd when stated forthrightly, but most separation-of-powers discussions are largely inattentive to politics. Formalist theories tend to assert that the distribution of powers is set in stone; in contrast, functionalist theories tend to focus on abstract considerations of comparative institutional competence or on ossifying past practice into a "historical gloss" binding the present. Both approaches generally ignore the live political context in which the branches continually compete with one another for decision-making power.

"Pragmatic formalist" hybrids, like that proposed by Ron Krotoszynski in his contribution to the Duke Law Journal's annual administrative law symposium, while broadening the …


Congress's Constitution, Josh Chafetz Feb 2012

Congress's Constitution, Josh Chafetz

Cornell Law Faculty Publications

Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses—and even individual members—of Congress, acting alone, can deploy in interbranch conflicts. Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set …


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 …


The President’S Question Time: Power, Information, And The Executive Credibility Gap, Sudha Setty Apr 2008

The President’S Question Time: Power, Information, And The Executive Credibility Gap, Sudha Setty

Cornell Journal of Law and Public Policy

No abstract provided.


Cleaning House: Congressional Commissioners For Standards, Josh Chafetz Oct 2007

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Cornell Law Faculty Publications

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all.

This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …


Defending The (Not So) Indefensible, Seth Barrett Tillman Apr 2007

Defending The (Not So) Indefensible, Seth Barrett Tillman

Cornell Journal of Law and Public Policy

No abstract provided.


Complete Preemption And The Separation Of Powers, Trevor W. Morrison Mar 2007

Complete Preemption And The Separation Of Powers, Trevor W. Morrison

Cornell Law Faculty Publications

This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which …


More Ours Than Theirs: The Uighurs, Indefinite Detention, And The Constitution, Ulysses S. Smith Jan 2007

More Ours Than Theirs: The Uighurs, Indefinite Detention, And The Constitution, Ulysses S. Smith

Cornell International Law Journal

No abstract provided.


Constitutional Avoidance In The Executive Branch, Trevor W. Morrison Oct 2006

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …


Constitutional Avoidance In The Executive Branch, Trevor W. Morrison Oct 2006

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 …


A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Ansah Jan 2005

A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Ansah

Cornell International Law Journal

Explores the separations, constructions, & barriers between law & religion from both a secular & religious perspective. Maintaining boundaries between law & religion often results in the construction of the repudiated religious Other. Creation of a public/private divide is based on an exclusion that functions like what psychoanalysts call abjection. However, the abject (religion) is a latent source of creativity that remains outside the domain of the law but weakens it as the primary site of authority. Removing religion from the sidelines of public juridical dialogue reduces the constraining power of discourse & widens the states discretion. The failure of …


When Inter-Branch Norms Break Down: Of Arms-For-Hostages, Orderly Shutdowns, Presidential Impeachments, And Judicial Coups, Peter M. Shane Jul 2003

When Inter-Branch Norms Break Down: Of Arms-For-Hostages, Orderly Shutdowns, Presidential Impeachments, And Judicial Coups, Peter M. Shane

Cornell Journal of Law and Public Policy

No abstract provided.


Branches Behaving Badly: The Predictable And Often Desirable Consequences Of The Separation Of Powers, Saikrishna B. Prakash Jul 2003

Branches Behaving Badly: The Predictable And Often Desirable Consequences Of The Separation Of Powers, Saikrishna B. Prakash

Cornell Journal of Law and Public Policy

No abstract provided.


Schoolhouses, Courthouses, And Statehouses: Educational Finance, Constitutional Structure, And The Separation Of Powers Doctrine, Michael Heise Jan 1998

Schoolhouses, Courthouses, And Statehouses: Educational Finance, Constitutional Structure, And The Separation Of Powers Doctrine, Michael Heise

Cornell Law Faculty Publications

No abstract provided.


Reconsidering Fec V. Nra Political Victory Fund Through A Bolstered Functionalism , Peter S. Guryan Sep 1996

Reconsidering Fec V. Nra Political Victory Fund Through A Bolstered Functionalism , Peter S. Guryan

Cornell Law Review

No abstract provided.


Justiciability And Separation Of Powers: A Neo-Federalist Approach , Robert J. Pushaw Jr. Jan 1996

Justiciability And Separation Of Powers: A Neo-Federalist Approach , Robert J. Pushaw Jr.

Cornell Law Review

No abstract provided.


Mistakes Precedent And The Rise Of The Administrative State: Toward A Constitutional Theory Of The Second Best , Peter B. Mccutchen Nov 1994

Mistakes Precedent And The Rise Of The Administrative State: Toward A Constitutional Theory Of The Second Best , Peter B. Mccutchen

Cornell Law Review

No abstract provided.


One Person One Office: Separation Of Powers Or Separation Of Personnel , Steven G. Calabresi, Joan L. Larsen Jul 1994

One Person One Office: Separation Of Powers Or Separation Of Personnel , Steven G. Calabresi, Joan L. Larsen

Cornell Law Review

No abstract provided.


Looking Back, Looking Ahead: Justice O’Connor, Ideology, And The Advice And Consent Process, Lisa R. Graves Oct 1993

Looking Back, Looking Ahead: Justice O’Connor, Ideology, And The Advice And Consent Process, Lisa R. Graves

Cornell Journal of Law and Public Policy

No abstract provided.


Foreign Policy And The Separation Of Powers: Who Sets The Course For The Ship Of State, Robert A. Friedlander Apr 1989

Foreign Policy And The Separation Of Powers: Who Sets The Course For The Ship Of State, Robert A. Friedlander

Cornell International Law Journal

No abstract provided.


How Separation Of Powers Protects Individual Liberties, Cynthia R. Farina Apr 1989

How Separation Of Powers Protects Individual Liberties, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.


Governmental Functions And Constitutional Doctrine The Historical Constitution , Russell K. Osgood Mar 1987

Governmental Functions And Constitutional Doctrine The Historical Constitution , Russell K. Osgood

Cornell Law Review

No abstract provided.


Contemporary Debate About Legislative-Executive Separation Of Powers , Thomas O. Sargentich Mar 1987

Contemporary Debate About Legislative-Executive Separation Of Powers , Thomas O. Sargentich

Cornell Law Review

No abstract provided.


Formal And Functional Approaches To Separation Of Powers Questions A Foolish Inconsistency , Peter L. Strauss Mar 1987

Formal And Functional Approaches To Separation Of Powers Questions A Foolish Inconsistency , Peter L. Strauss

Cornell Law Review

No abstract provided.


Theory Of Legislative Delegation, Peter H. Aranson, Ernest Gellhorn, Glen O. Robinson Nov 1982

Theory Of Legislative Delegation, Peter H. Aranson, Ernest Gellhorn, Glen O. Robinson

Cornell Law Review

No abstract provided.


The United States-Iran Hostage Agreement: A Study In Presidential Powers, Christopher Massaroni Jan 1982

The United States-Iran Hostage Agreement: A Study In Presidential Powers, Christopher Massaroni

Cornell International Law Journal

No abstract provided.