Law and Politics Commons^™

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

Expanding The Foreign National Prohibition To Combat Russian Interference In U.S. Elections, Hailey Arnett

William & Mary Bill of Rights Journal

In 2016, the Russian government purchased political advertisements from U.S. social media companies like Facebook to sway the U.S. presidential election. These purchases violated the foreign national prohibition (“the Prohibition”), which Congress codified as part of the Federal Election Campaign Act Amendments of 1974 (FECA). This Note explains why Congress should expand the Prohibition to capture the recipients of independent expenditures that violate the Prohibition and fine people who run online platforms that receive independent expenditures or contributions made by foreign nationals in violation of the Prohibition.

Part I describes current U.S. case law on domestic and foreign campaign finance …

The Political Dynamics Of Constitutional Law, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.

Judge Platt Potter: Politics And Principle In Interbranch Conflict, Aaron-Andrew P. Bruhl

Faculty Publications

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents …

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

William & Mary Law Review

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

William & Mary Journal of Race, Gender, and Social Justice

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

William & Mary Journal of Race, Gender, and Social Justice

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

Countering The Criminalization Of Solidarity: An Analysis Of Legal Frameworks Proposed To Protect Humanitarian Aid For Migrants And Asylum Seekers, Katherine E. Smart

William & Mary Journal of Race, Gender, and Social Justice

Thousands of migrant fatalities are reported each year all across the globe, and as staggering as current numbers are, they are likely an undercount. These deaths are a direct result of government policies that funnel migrants into dangerous routes through deserts and seas to deter immigration. Further, when individuals and groups step forward to provide immediate aid to migrants—such as food, water, shelter, first aid, and search and rescue (SAR)—they are often targeted by intimidation, harassment, discipline, and even criminal prosecution. Thus emerges a question: what legal framework can protect the rights of humanitarian aid workers acting in solidarity with …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

The Bare-Majority Requirement Of The Delaware Judiciary And Its Unfortunate Violation Of The First Amendment, Tyler Mayhew

William & Mary Bill of Rights Journal

This Note will attempt to remedy the circuit split on the issue of whether judges are policymakers for purposes of the First Amendment, and if they are not—as this Note concludes—whether the Delaware Constitution is in violation of the First Amendment through its major-party and bare-majority requirement.

First, this Note will analyze the development of the only challenge to article IV, section 3 of the Delaware Constitution as it proceeded from the U.S. District Court for the District of Delaware to the U.S. Supreme Court where it was thrown out on standing. Second, this Note will argue that judges are …

Voter F̶R̶A̶U̶D̶ Mistake, Benjamin Plener Cover

William & Mary Bill of Rights Journal

False narratives challenging electoral integrity often cite ineligible voting as a prime example of so-called widespread voter fraud. This Article demonstrates that ineligible voting often consists of mistakes that are problematically treated like fraud. Some jurisdictions criminalize ineligible voting on a strict liability basis, imposing punishment even when the ineligible voter is unaware of her ineligibility. When jurisdictions impose this strict criminal liability, mistakes are often misunderstood or misrepresented as fraud. This harsh and confused treatment of voter mistake undermines the criminal justice system by severing criminality from culpability, punishing good faith democratic participation, targeting marginalized populations, and amplifying systemic …

Leading With Courage: Defending Intellectual Freedom And Championing A Broad Range Of Ideas In Law Libraries, Leslie A. Street

Library Staff Publications

No abstract provided.

Why You Cannot Find A Swing Justice When You Really Need One, Neal Devins

William & Mary Law Review

From Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action …

A Threshold Test For Fed Activism, John Crawford

William & Mary Business Law Review

Recent years have witnessed robust academic and policy debates about the scope of issues the U.S. central bank, the Federal Reserve (the Fed), should attempt to tackle. Some propose expanding the Fed’s remit to help address societal problems like racial inequality and climate change, either through a broader interpretation of the Fed’s current mandate, or through new legislation explicitly delegating new responsibilities to the Fed. Others argue that the Fed should “stay in its lane,” with a particular focus on ensuring democratic accountability and a tighter fit between what the Fed does and what it is statutorily authorized to do. …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Terrorism Should Not Be A Crime: How Political Labels Are Dangerous To American Democracy, Abigail S. Grand

William & Mary Journal of Race, Gender, and Social Justice

This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III …

Extraterritoriality's Empire: How Self-Determination Limits Extraterritorial Lawmaking, Evan J. Criddle

Faculty Publications

In recent years, a growing number of countries have courted controversy by regulating activities outside their borders. They have used extraterritorial lawmaking to cultivate competitive global markets, strengthen or weaken data privacy, combat foreign terrorism and military aggression, promote human rights abroad, and suppress political dissent at home. This Article explores whether extraterritorial lawmaking can be reconciled with the right to self-determination under international law. I argue that the right to self-determination entitles each national polity to determine the laws and institutions by which it is governed within its territory. Extraterritorial lawmaking violates the right to self-determination when it subjects …

Rage Rhetoric And The Revival Of American Sedition, Jonathan Turley

William & Mary Law Review

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by …

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Russia's Roulette: Sanctions, Strange Contracts & Sovereign Default, Lev E. Breydo

Faculty Publications

This Article is the first comprehensive, multi-disciplinary analysis of Russia’s sovereign debt and the consequences of a potential default.

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This Article introduces a Russian debt taxonomy divided into four distinctive categories. Starting with relatively standard terms in late-1990s vintage bonds, over time and as a close function of geo-political developments, the contracts grew unusual—bordering towards lawless.

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The rest of this Article is organized in four parts. Part II provides critical background regarding Russia’s sovereign debt and details key legal provisions likely implicated in the event of a default. Part III discusses how, due to the complex interplay between …

Faux Advocacy In Amicus Practice, James G. Dwyer

Faculty Publications

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

Stephen Breyer, The Authority Of The Court And The Peril Of Politics, Harvard University Press, 2021, Louis Fisher

William & Mary Law Review Online

Louis Fisher reviewing Stephen Breyer's The Authority of the Court and the Peril of Politics (Harvard University Press, 2021).

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Destructive Federal Decentralization, David Fontana

William & Mary Bill of Rights Journal

This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

Yearning For An Independent Federal Judiciary, A. Benjamin Spencer

Popular Media

No abstract provided.

Comments On Mcgahn "A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration", Russell Wheeler

William & Mary Law Review Online

Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding …

The Death Of Non-Resident Contribution Limit Bans And The Birth Of The New Small, Swing State, George J. Somi

William & Mary Bill of Rights Journal

New Hampshire’s 1st Congressional District race in 2018 featured an eye-popping number: 96.7. That figure represents the percentage of candidate Maura Sullivan’s individual contributions derived from out-of-state, non–New Hampshire donors. In August 2018, of the $1.37 million USD of individual contributions that Sullivan had raised, only 3.3%—$46,648 USD—originated from in-state contributors. Sullivan had received individual donations amounting to $497,405 USD from Boston, $216,359 USD from New York City, $101,562 USD from the Washington, D.C. metropolitan area, and $92,371 USD from San Francisco.

In nearby Maine, campaign finance reports filed on October 15, 2019, with the Federal Election Commission (FEC) indicate …

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

We Are All Growing Old Together: Making Sense Of America's Monument-Protection Laws, Zachary Bray

William & Mary Law Review

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one’s stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America’s patchwork of monument-protection laws, …