Constitutional Law Commons^™

Optimal Specificity In The Law Of Separation Of Powers: The Numerous Clauses Principle, Gary S. Lawson

Faculty Scholarship

In this response to Professor John Manning’s Separation of Powers as Ordinary Interpretation, Professor Gary Lawson agrees with Manning’s argument that there is no overarching constitutional principle of “optimal specificity.” Lawson argues, however, that there are other overarching principles that are fairly derivable from the text, such as a principle of “decisional independence.” Moreover, Lawson suggests a bigger potential problem with Manning’s argument: when judges apply functionalist or formalist reasoning to decide cases, they may be engaging in a qualitatively different activity than Manning assumes, and his careful interpretative analysis may therefore be largely beside the point.

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

Scholarly Works

This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …

Partisan Conflicts Over Presidential Authority, Jide Okechuku Nzelibe

Faculty Working Papers

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at …

Limiting Legislative Courts: Protecting Article Iii From Article I Evisceration, Kenneth G. Coffin

Barry Law Review

This article will analyze possible limitations on Congress’ Article I power, concluding that separation of powers jurisprudence offers a practical and appropriate manner in which to check Congressional overreach. Part I traces the development of Congress’ power to create Article I courts. Part II critically evaluates the Northern Pipeline opinions, ultimately finding neither Justice Brennan’s nor Justice White’s conflicting opinions satisfactory. Part III briefly discusses several possible limiting principles on Article I courts before concluding that separation of powers jurisprudence offers a meaningful and pragmatic solution to the problem. Part IV tests the practicality of this new separation of powers …

Sigtarp And The Executive-Legislative Clash: Confronting A Bowsher Issue With An Eye Toward Preserving The Separation Of Powers During Future Crisis Legislation, Aaron R. Sims

Washington and Lee Law Review

No abstract provided.

Business Interests Cases - October 2009 Term, Leon D. Lazer Honorable, Leon Friedman

Touro Law Review

No abstract provided.

Sigtarp: A Problem In Name Only?, Adam F. Scales

Washington and Lee Law Review

No abstract provided.

Finding Sigtarp In The Separation Of Powers Labyrinth, Jonathan R. Siegel

Washington and Lee Law Review

No abstract provided.

Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn

Scholarly Articles in Law Reviews & Journals

On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Faculty Publications

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

Sliding Towards Educational Outcomes: A New Remedy For High-Stakes Education Lawsuits In A Post-Nclb World, Christopher A. Suarez

Michigan Journal of Race and Law

Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

Equitable Balancing In The Age Of Statutes, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

Placing Your Faith In The Constitution, Harold H. Bruff

Publications

No abstract provided.

A Critical Consideration Of Executive Orders: Glimmerings Of Autopoiesis In The Executive Role, John C. Duncan Jr

Journal Publications

The United States Constitution is a parsimonious document, meant to retain the dynamic processes of the three branches of government within their respective spheres and overarching principles, beyond which it offers the latitude necessary for the developing nation to adapt to future contingencies. The Congress and the President are the governing institutions of two of those branches, to which agility is essential as a matter of survival. The most agile tool that the President has is the executive order. There is no statutory authority for the federal executive order or any other source that describes its legal effect, as such, …

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 …

Aligning Judicial Elections With Our Constitutional Values: The Separation Of Powers, Judicial Free Speech, And Due Process, Jason D. Grimes

Cleveland State Law Review

This Note consists of five Parts. Part II traces the historical development of state judicial elections from the perspective of the Framers' doctrine of separation of powers. It shows that judicial elections were borne more of historical contingency than constitutional design. Part II then assesses the recent history of elections to the Ohio Supreme Court. It determines that Ohio's judicial elections share two problems with many other states: millions of dollars given to judicial candidates by special interests likely to appear before the court, and candidates' broad freedom of speech to earn the political and financial support of these special …

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 …

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

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 …

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate – rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design. Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss

Michigan Law Review

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …

The President's Signing Statement Upon Signing The National Defense Authorization Act For Fiscal Year 2008: Hearing Before The Subcomm. On Oversight And Investigations Of The H. Comm. On Armed Services,, 110th Cong., Mar. 11, 2008 (Statement Of Nicholas Quinn Rosenkranz, Geo. U. L. Center), Nicholas Quinn Rosenkranz

Testimony Before Congress

No abstract provided.

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.

Members Only - United States V. Rayburn House Office Building, Room 2113: The Speech Or Debate Clause, The Separation Of Powers And The Testimonial Privilege Of Preemptive Nondisclosure, John D. Friel

Villanova Law Review (1956 - )

No abstract provided.

What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen

Articles by Maurer Faculty

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, …

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

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.” …