Constitutional Law Commons^™

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

Articles

Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

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 …

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein

Testimony

Letter written to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.

As a professor of constitutional law, and a scholar who has written extensively on separation of powers issues in U.S. Government, I believe adopting procedures to allow for remote voting under these extraordinary circumstances is not only lawful, but essential to the maintenance of our constitutional democracy. Recognizing that specific procedures for remote voting may still be in development, the analysis offered here focuses foremost on the broad scope of Congress’ constitutional authority to regulate its voting procedures.

We Badly Need Congress To Act. We Don’T Need Congress To Act In Person., Deborah Pearlstein

Online Publications

Even as governors across the country impose increasingly restrictive – and eminently necessary – measures to promote teleworking and other forms of social distancing to stem the coronavirus tide, and as lawmakers themselves face the news that they have tested positive for the virus or otherwise must self-isolate, too many members of Congress have remained puzzlingly reluctant to make social distancing possible in their own institution. There was even news on Sunday that Sen. Rand Paul (R-Ky.) had been spotted at the Senate gym the same morning he found out he’d tested positive for the virus. As Democratic Representatives Eric …

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries …

Into The Void: The Gao's Role In The Regulartory State, Bridget C.E. Dooling

American University Law Review

The study of Congress largely focuses on its members, committees, and leaders. Meanwhile, the study of federal agencies tends to focus on those that fall within the executive branch. But many agencies and institutions exist to support Congress, and administrative law and political science scholarship has largely overlooked their internal operations. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators they serve. As instruments of Congress, though, these agencies are generally exempt from the Administrative Procedure Act and a host …

Ratification Of The Equal Rights Amendment: Lessons From Special Elections To The House Of Representatives In 1837, John Vlahoplus

Indiana Law Journal

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the Constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election. This Article suggests that the similar Article V gives Congress only the power to propose amendments, without any limitation, and States the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose …

Disappropriation, Matthew B. Lawrence

Faculty Articles

In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include …

Law Library Blog (January 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Lawful Permanent Residency: A Potential Solution For Temporary Protected Status Holders In The Eastern District Of New York, Cody M. Gecht

Touro Law Review

No abstract provided.

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

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

Articles & Chapters

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

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the …

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …

Why The House Of Representatives Must Be Expanded And How Today’S Congress Can Make It Happen, Caroline Kane, Gianni Mascioli, Michael Mcgarry, Meira Nagel

Faculty Scholarship

The House of Representatives was designed to expand alongside the country’s population—yet its membership stopped growing a century ago. Larger and, in some cases, unequal sized congressional districts have left Americans with worse representation, including in the Electoral College, which allocates electors partially on the size of states’ House delegations. This report recommends tying the House’s size to the cube root of the nation’s population, which would lead to 141 more seats. It also calls for an approach to drawing districts that would eliminate gerrymandering.

This report was researched and written during the 2018-2019 academic year by students in Fordham …

Rules To Impeach By - What It Takes To Remove A President, David Dittfurth

Faculty Articles

Professor David Dittfurth explains the steps that must be taken by Congress to impeach a president or other official.

The White House And Congress Are Heading For A Collision. Who Will Win?, Katherine A. Shaw

Online Publications

With the 116th Congress up and running, President Trump is facing meaningful congressional oversight for the first time. On Monday, the House Judiciary Committee embarked on a major investigative mission, sending letters to 81 witnesses seeking documents and testimony relating to possible “obstruction of justice, public corruption and other abuses of power” by Mr. Trump and his administration.

But the White House shows no signs of rolling over. It has indicated for months that it is prepared to assert the president’s executive privilege to keep congressional investigators from gathering information about Mr. Trump — including his conversations with high-level advisers. …

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Texas A&M Law Review

The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat

Touro Law Review

No abstract provided.

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutional discourse; (3) that conservative-leaning speakers have driven this …

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Oops!... I Infringed Again: An Analysis Of U.S. Copyright And Its Intended Beneficiaries, Gabriele A. Forbes-Bennett

Student Theses and Dissertations

This paper seeks to establish the reasons why federal copyright protection was created, discuss the shifts in reasoning behind major amendments, and explore its effects on copyright holders and the public, with a slight focus on the music industry. Federal copyright has existed in the United States since the late 1700s, with the creation of the Copyright Act in 1790. Adopted from the first copyright law ever created, the English Statute of Anne (1710), the Copyright Act was meant to protect citizens from piracy in a world where the risk of such a thing was rapidly increasing. The stated objective …

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been …