President/Executive Department Commons^™

The Rise And [?] Of Anti-Administrativism, Gary Lawson

BYU Law Review

Scholars have proclaimed the administrative state to be “Under Siege” or subject to a “Never-Ending Assault.” Was the election of President Donald Trump on November 5, 2024, the sixth, if not yet the seventh, day around the walls?

This seems an appropriate time to consider the present and future of opposition to the administrative state—something that has come to be dubbed “anti-administrativism.” The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this “anti-administrativism”? Without knowing the answer to that seemingly simple question, one cannot accurately …

Stand-Ins: Causes And Consequences Of Temporary Leadership, Anne Joseph O’Connell

BYU Law Review

Hafen Lecture, BYU Law School, September 13, 2023.

Navigating Section Three From Griffin’S Case To The Case Of Couy Griffin: Who Should Decide Its Longstanding Questions?, Austin Carpenter

BYU Law Review

Section Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition.

Yet, use of Section …

Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling

BYU Law Review

No abstract provided.

A Constitutional Right To A Functioning United States Government? Are Government Shutdowns Unconstitutional?, Allen Shoenberger

Brigham Young University Journal of Public Law

No abstract provided.

Deregulation Defanged: An Empirical Review Of Federal Deregulatory Policy And Its Legal Obstacles, Jack Thorlin

Brigham Young University Journal of Public Law

No abstract provided.

Presidential Immunity From Prosecution: Tolling The Statute Of Limitations, Margit Livingston

Brigham Young University Journal of Public Law

No abstract provided.

Presidential Pronouncements Of Customary International Law As An Alternative To The Senate’S Advice And Consent, Eric Talbot Jensen

BYU Law Review

The Restatement (Fourth) of Foreign Relations Law of the United States has thus far focused on the status of treaties in United States law, and has not specifically considered the topic of customary international law. While the American Law Institute undoubtedly has good reasons for its approach, there is an emerging presidential practice that should catch the attention of the drafters and encourage them to make at least a small foray into customary international law’s impact on the domestic law of the United States. This practice consists of presidents proclaiming to the international community that certain provisions of treaties that …

War Over Words: Reinterpreting "Hostilities" And The War Powers Resolution, Eileen Burgin

Brigham Young University Journal of Public Law

No abstract provided.

In Defense Of The Post-Partisan President: Toward The Boundary Between "Partisan" Advantage And "Political" Choice, David C. Weiss

Brigham Young University Journal of Public Law

No abstract provided.

Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore

Faculty Scholarship

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …

Governing The Presidential Nomination Commons, Brigham Daniels

Faculty Scholarship

States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also …

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Faculty Scholarship

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president - let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever.

Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a "false" religion. Ironically, however, the Mormon church periodically intervenes in initiative and …

Forget The Whales: Expanding The Twilight And Diminishing The Nadir Of Youngstown, Landon Wade Magnusson

Brigham Young University Journal of Public Law

No abstract provided.

How The Signing Statement Thought It Killed The Veto; How The Veto May Have Killed The Signing Statement, Jeremy M. Seeley

Brigham Young University Journal of Public Law

No abstract provided.

The Political Balance Of Power Over The Military: Rethinking The Relationship Between The Armed Forces, The President, And Congress, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The …

The Presidency And The Meaning Of Citizenship·, Malinda L. Seymore

BYU Law Review

No abstract provided.

The Law Of Presidential Transitions And The 2000 Election, Todd J. Zjwicki

BYU Law Review

No abstract provided.

Presidential Power Grab Or Pure State Might? A Modern Debate Over Executive Interpretations On Federalism, Jennie Holman Blake

BYU Law Review

No abstract provided.

The Clinton Impeachment And The Constitution: Introduction To The Federalist Society Panel, Thomas R. Lee

BYU Law Review

No abstract provided.

Lawyers And The Defense Of The Presidency, Nelson Lund

BYU Law Review

No abstract provided.