Law Commons^™

A Wolf In Sheep’S Clothing: The Unilateral Executive And The Separation Of Powers, Thomas J. Cleary

The University of New Hampshire Law Review

[Excerpt] “The United States Constitution vests all executive powers in a president. This is the unitary executive theory. By virtue of this, many believe the president is vested with the power to act unilaterally. This is the unilateral executive theory. However, the unilateral executive portends more than action. In reality, the unilateral executive theory provides an opportunity to implement a unilateral agenda. Thus, the aim of this paper is to consider executive power, the separation of powers, and the unilateral executive theory to determine if presidential power under the separation of powers doctrine is actually “a wolf in sheep’s clothing.” …

Standing Up To Legislative Bullies: Separation Of Powers, State Courts And Educational Rights, Sonja Ralston Elder

Duke Law Journal

The separation of powers doctrine creates a strong presumption in favor of judicial deference to legislative policy determinations. This doctrine was developed for federal courts, however, and does not apply with identical force to state courts enforcing state constitutional rights. This Note examines rationales for the separation of powers doctrine and their potential application to state courts. After concluding that deference should be more limited in state courts, it then applies this conclusion to educational rights, which are frequently at risk due to political market failures. By examining case studies of constitutionally based education litigation in seven states, this Note …

Of Exigent Circumstances And Constitutional Authority: Congress, The President, And Domestic Electronic Surveillance, Lawrence Friedman, Victor Hansen

Lawrence Friedman

In this article, we argue that the constitutional structures and doctrines that functioned well before September 11 have not become liabilities since then. In particular, the relative powers the Constitution allocates between the Congress and the President in matters of national security have, in the light of experience, served the nation well and are likely to continue to do so, for the careful balance the framers struck between legislative and executive authority has the virtue of adaptability to a changing—and dangerous—world. Further, experience has demonstrated that the Constitution’s default lawmaking scheme, which centers on bicameral legislative enactment, presentment, and all …

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 …

Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis

Duke Law Journal

Virtually immune from judicial sanction, professional discipline, and civil liability, prosecutors enjoy limitless, unmonitored, and, for the most part, unreviewable power. This power and insulation from review invite abuse and public mistrust, shaking confidence in the criminal justice system. With the system in need of a means of curbing errant prosecutors and restoring public confidence, this Note explores a neglected mechanism of prosecutorial oversight-the superseder power-and argues for increased use of this oversight mechanism, coupled with explicit guidelines for its use and a public review process.

Deciding Death, Corinna Barrett Lain

Duke Law Journal

When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

Regulatory Preemption: Are Federal Agencies Usurping Congressional And State Authority?: Hearing Before The S. Comm. On The Judiciary,, 110th Cong., Sept. 12, 2007 (Statement Of Viet D. Dinh, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

Regulatory Preemption: Hearing Before The S. Comm. On The Judiciary, 110th Cong., Sept. 12, 2007 (Statement Of David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

Congressional Immunity Grants And Separation Of Powers: Legislative Vetoes Of Federal Prosecutions, Hanah M. Volokh

Hanah M. Volokh

Congressional investigations can derail criminal prosecutions. The most famous example is the failure of the prosecution of Oliver North for his role in the Iran-Contra scandal after he testified at a congressional committee hearing about his conduct. The D.C. Circuit Court of Appeals held that much of the evidence being used in the prosecution was tainted by association with North's compelled congressional testimony and could not be used at trial.

The knowledge that congressional investigations and grants of immunity can create problems for prosecutors has not stopped either the investigations or the immunity grants. Recently, Congress granted immunity to a …

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

D. A. Jeremy Telman

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Rescuing Burke, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Holding Enemy Combatants In The Wake Of Hamdan, Ronald D. Rotunda

Ronald D. Rotunda

The article offers, inter alia, a succinct survey of the historical and jurisprudential background for the detainee cases and military commissions cases - including a number of important factual details glossed over in most reporting on the cases (e.g., Padilla has stipulated that he was an enemy spy sent to the United States; it was Hamdan's own defense counsel who had asked to exclude him from the voir dire portion of the proceedings) - as well as legal issues that may still arise.

The United States Federal Judiciary May Not Be A Third, Co-Equal Branch Of Government - What Are The Implications For The Irish Debate On Judicial Activism, Lawrence Donnelly

San Diego International Law Journal

In support of this argument, this essay first examines the language of Article III of the United States Constitution and then briefly reviews the origins of the widely held perception that the federal judiciary is a "co-equal" branch of government. It next considers Borkian constitutionalism, opining that if one is to read the Constitution as Bork urges, this essay's tentative proposition can't be far off the mark. The focus then shifts to the express language of the Irish Constitution, which accords a far greater responsibility to the judiciary than its American counterpart. In this context, it reviews some pronouncements in …

Defending The (Not So) Indefensible, Seth Barrett Tillman

Cornell Journal of Law and Public Policy

No abstract provided.

Deference, Human Rights And The Federal Courts: The Role Of The Executive In Alien Tort Statute Litigation, Margarita S. Clarens

Duke Journal of Comparative & International Law

No abstract provided.

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 …

Amending Executive Order 12866: Good Governance Or Regulatory Usurpation? Part I And Part Ii: Hearing Before The H. Comm. On Science And Technology, 110th Cong., Feb. 13, 2007 (Statement Of Professor David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

Presidential Signing Statements Under The Bush Administration: A Threat To Checks And Balances And The Rule Of Law?: Hearing Before The H. Comm. On The Judiciary, 110th Cong., Jan. 31, 2007 (Statement Of Nicholas Quinn Rosenkranz, Prof. Of Law, Geo. U. L. Center), Nicholas Quinn Rosenkranz

Testimony Before Congress

No abstract provided.

In Defense Of The Roosevelt Court, Wilson Ray Huhn

Florida A & M University Law Review

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose--the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build. Two justices presently serving on the Supreme Court--Justice Antonin Scalia and …

Separate And Obedient: The Judicial Qualification Missing From The Job Description, J. Amy Dillard

All Faculty Scholarship

The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the …

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

Cornell International Law Journal

No abstract provided.

The State Secrets Privilege And Separation Of Powers, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …

Certifying Questions To Congress, Amanda Frost

Articles in Law Reviews & Other Academic Journals

As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts …

Hamdan As An Assertion Of Judicial Power , Jana Singer

Maryland Law Review

No abstract provided.

Silences And Peculiarities Of The Hamdan Opinions, Peter E. Quint

Maryland Law Review

No abstract provided.

Youngstown, Hamdan, And “Inherent” Emergency Presidential Policymaking Powers, Gordon G. Young

Maryland Law Review

No abstract provided.

You Ain’T Seen Nothin’ Yet: The Inevitable Post- Hamdan Conflict Between The Supreme Court And The Political Branches, Michael Greenberger

Maryland Law Review

No abstract provided.