President/Executive Department Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown

Pepperdine Law Review

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is grounded in …

Disgorging Emoluments, Caprice L. Roberts

Marquette Law Review

This Article is about unjust enrichment. It includes a theory of an unjust

enrichment cause of action against executive actors who receive unlawful

emoluments. Interpretations of the boundaries of unlawful emoluments range

from receipt of a gift or benefit because of the position of power held to quid

pro quo exchanges of a thing of value in exchange for government information

or advantage. Wherever the proper line, the purpose of the law of unjust

enrichment is to prevent and undo benefits one has no right to retain. It

achieves those goals with the use of restitution remedies including

disgorgement of …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Filling The California Ninth Circuit Vacancies, Carl Tobias

Law Faculty Publications

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency …

Filling The New York Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

After The Trump Era: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

U.S. Government Aviation Safety Information Resources, Bert Chapman

Libraries Faculty and Staff Presentations

Presentation covering U.S. Government aviation safety information resources. Topics addressed include U.S. laws,legislation, regulations, court cases, information resources from agencies such as the Federal Aviation Administration, Transportation Security Administration, National Aeronautics and Space Administration, congressional aviation oversight committees and congressional support agencies including the Congressional Budget Office, Congressional Research Service, and Government Accountability Office.

Five Years Under The Veterans Judicial Review Act: The Va Is Brought Kicking And Screaming Into The World Of Meaningful Due Process, Lawrence B. Hagel, Michael P. Horan

Maine Law Review

I have been asked to give you the “veterans' perspective” on whether the Court of Veterans Appeals has served the purpose for which it was created by Congress and also to describe what additional steps the court might take to further the ends desired by veterans. This is no easy task. It is difficult not because I do not have a lot to say. It is difficult because it is a charge to speak, in a sense, for all veterans. In order to understand what I mean, I think it may be helpful to give you a little background on …

The Impact Of Judicial Review On The Department Of Veterans Affairs' Claims Adjudication Process: The Changing Role Of The Board Of Veterans' Appeals, Charles L. Craigin

Maine Law Review

In a March 1992 statement submitted to the Congress, the Deputy Secretary of Veterans Affairs described the impact of judicial review on the Department of Veterans Affairs (Department or VA) as “profound.” That description is still apt and applies with as much force to the Board of Veterans' Appeals (Board or BVA) as it does to the Department as a whole. Nothing has had as much impact on the Board as the Veterans' Judicial Review Act (VJRA). The VJRA established the United States Court of Veterans Appeals in 1988 and charged it with the review of decisions of the Board. …

Jurisdiction Of The United States Court Of Veterans Appeals: Searching Out The Limits, Frank Q. Nebeker

Maine Law Review

I have been asked to talk to you about the United States Court of Veterans Appeals-specifically, challenges and trends in defining the scope of the court's jurisdiction. As a brand-new court, and one without any antecedent, the court began to establish precedent to deal with all aspects of its jurisdiction. In fact, it is still very much in the process of setting such precedent. For the first time, the court brought the principle of stare decisis to the veterans' community. The principle required considerable readjustment within the Department of Veterans Affairs (Department or VA). The VA's regional offices and the …

Introductory Remarks, Donald N. Zillman

Maine Law Review

I am very pleased to welcome this distinguished company to the University of Maine School of Law and to Portland. I thank Chairman Cragin for bringing such a distinguished group to his law school. I thank the Maine Law Review for taking the sponsor's role and for insuring that the publication of our proceedings will take our thoughts far beyond this room. My interest in military law and veterans law as participant and scholar extends over the last twenty years. And so, when Chairman Cragin broached the idea of a conference to provide the first assessment of how the “new …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Trump, The Court, And Constitutional Law, Erwin Chemerinsky

Indiana Law Journal

In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These, …

Twitter And The #So-Calledjudge, Elizabeth G. Thornburg

SMU Law Review

Two-hundred-eighty characters may be insufficient to deliver a treatise on the judiciary, but it is more than enough to deliver criticism of the third branch of government. Today, these tweeted critiques sometimes come not from the general public but from the President himself. Attacks such as these come at a challenging time for court systems. We live in a highly politicized, polarized society. This polarization is reflected in attitudes toward the courts, particularly the federal courts. Unfortunately, public doubts about the court system come at a time when public understanding of the structure of government, and especially the court system, …

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's …

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Michigan Law Review

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

The President's Role In Advancing Criminal Justice Reform, Barack Obama

United States Department of Justice: Publications

Criminal justice is a complex system, administered at all levels of government and shaped by a range of actors. Thanks to the dedicated efforts of so many in my Administration, the bipartisan push for reform from federal, state, and local officials, and the work of so many committed citizens outside government, America has made important strides. We have reduced overlong sentences for offenders and removed barriers for those with criminal records. We have made progress in helping people, especially young people, avoid getting entangled in the justice system in the first place. This Commentary talks about those achievements — and …

Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …