President/Executive Department Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Foreign Affairs Federalism: The Doctrine Of Foreign Affairs Preemption And State Regulation In Light Of The Paris Agreement, Anagha Sundararajan

University of San Francisco Law Review

No abstract provided.

Full Faith & Credit For Victims Of Human Trafficking, Joseph Woltmann

University of San Francisco Law Review

No abstract provided.

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review

Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Against Executive-Controlled Administrative Law Judges, Stephanie N. Higginson

Harvey M. Applebaum ’59 Award

No abstract provided.

Restoring Stare Decisis In The Wake Of Janus V. Afscme, Council 31, James Tilghman

NYLS Law Review

No abstract provided.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.

The Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley

NYLS Law Review

No abstract provided.

Presidential Whim, Matthew J. Steilen

Journal Articles

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

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

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …

The Forgotten Unitary Executive Power: The Textualist, Originalist, And Functionalist Opinions Clause, Zachary J. Murray

Pace Law Review

This article will analyze the Opinion Clause’s text, its history and intent, and its potential functions as a power. Part II catalogues much of the prior scholarship on the Opinions Clause, which generally fits into two categories: the anti-unitary approach, which argues that a substantive reading of the Vesting Clause renders the Opinions Clause redundant, and the unitary response, which essentially accepts that redundancy. To some extent, both sides miss the mark. The unitary approach misreads the text, assigning great substantive weight to the descriptive Vesting Clause, while assigning descriptive status to the substantive Opinions Clause. The anti-unitary approach, on …

George Washington’S Attorneys: The Political Selection Of United States Attorneys At The Founding, Scott Ingram

Pace Law Review

This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

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 …