Law and Politics Commons^™

The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn

Chicago-Kent Law Review

No abstract provided.

Ostracism And Democracy, Alex Zhang

Faculty Articles

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Congressional Securities Trading, Gregory Shill

Indiana Law Journal

The trading of stocks and bonds by Members of Congress presents several risks that warrant public concern. One is the potential for policy distortion: lawmakers' personal investments may influence their official acts. Another is a special case of a general problem: that of insiders exploiting access to confidential information for personal gain. In each case, the current framework which is based on common law fiduciary principles is a poor fit. Surprisingly, rules from a related context have been overlooked.

Like lawmakers, public company insiders such as CEOs frequently trade securities while in possession of confidential information. Those insiders' trades are …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

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 …

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 …

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 …

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 …

Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins

Mitchell Hamline 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 …

How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers

Pace Law Review

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution?

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal …

Constitutional Barriers To Congressional Reform, John M. Greabe

Law Faculty Scholarship

Americans celebrate our Constitution as a beacon that can guide us through difficult situations. And justly so. But at times, the Constitution also has stood as a barrier to necessary reform.

Sexual Misconduct And Congressional Self-Governance, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Over the past year, a number of prominent politicians (including President Donald Trump) have been publicly accused of serious sexual misconduct and abuse of power. The question therefore has arisen: Can these politicians either be barred from taking office or removed from office on the basis of these accusations?

There is only way to remove a sitting president: impeachment by the House of Representatives and conviction by the Senate. But the topic of impeaching and removing a president warrants its own column. This column will instead focus on what Congress may do when its members and members-elect face charges …

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

Next Generation Foreign Intelligence Surveillance Law: Renewing 702, William C. Banks

University of Richmond Law Review

No abstract provided.

Congress To Judges: We’Re The Boss Of You Now, Joanne Doroshow

Other Publications

No abstract provided.

The President's Budget As A Source Of Agency Policy Control, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control—in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget …

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Scott-Mclaughlin

Touro Law Review

No abstract provided.

A Remedy For Congressional Exclusion Frm Contemporary International Agreement Making, Ryan Harrington

West Virginia Law Review

No abstract provided.

Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein

Life of the Law School (1993- )

No abstract provided.

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

Making Sense Of Legislative Standing, Matthew I. Hall

Scholarly Works

Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

All Faculty Scholarship

Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley

Articles

Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …