President/Executive Department Commons^™

The Threat To Government Ethics, Richard Briffault

Faculty Scholarship

That was quite a week. Over seven days in mid-October:

• President Trump hosted a White House dinner for three dozen super-wealthy individuals and representatives of major corporations who pledged funds for his $300 million ballroom.
• The president commuted the sentence of former Congressman George Santos, who had served less than three months of an 87-month term for corruption, and canceled Santos’s obligation to pay restitution to his victims.
• The president fired, without providing a reason or giving the 30 days’ notice required by law, the Inspector General for the Export-Import Bank.
• We learned the president is demanding the Department of …

Democracy Needs The Administrative State, Gillian E. Metzger

Faculty Scholarship

In public debate, the federal bureaucracy is not typically praised for its democratic credentials. Consisting of a wide array of agencies staffed by a permanent civil service and governed by detailed regulations, the administrative state is more likely to be portrayed as a bastion of red tape and unelected power. To hear members of the Supreme Court tell it, for example, the administrative state’s “unaccountable bureaucrats” and “vast power[s]” pose a dire threat to constitutional democracy that only expanded presidential control can solve. President Trump has offered an even darker view, attacking a “deep state” of entrenched government officials as …

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Faculty Scholarship

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President — the “highest” and most powerful of all government officers — is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article …

Some Realism About Constitutional Remedies, Thomas P. Schmidt, Gillian E. Metzger

Faculty Scholarship

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii,  for example, the Supreme Court upheld President Trump’s infamous travel ban by focusing not on the “particular President” and his past call for a “complete shutdown of Muslims entering the United States,” but rather on “the authority of the Presidency itself.” That is the language of institutional formalism.

Realism, on the other hand, peers into the “black …

The Unitary Executive And The Federal Reserve, Lev Menand

Faculty Scholarship

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation — known as the unitary executive theory (UET) — would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the …

Liberal Trade And President Trump: Never The Twain Shall Meet, Joel Adu-Quaye, Petros C. Mavroidis

Faculty Scholarship

This paper seeks to distinguish between two consequences of the tariff policies enacted by both Trump administrations: (1) their adverse effects on free trade and (2) the existential damage inflicted upon the transnational institutions responsible for enforcing its rules and obligations. Although difficult to quantify the latter, there is an intuitive sense that this is what matters most. The global order appears to be shifting from a rule-based framework to one characterized by increasing disorder and unpredictability. Within this new world order, actions are permissible so long as they align with the, often ill-defined, national interests of powerful nations.

Removal: A Response To Professor Nelson, Philip A. Hamburger

Faculty Scholarship

In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. It’s therefore important to evaluate whether his historical claim about removal is correct.

Presidential Supremacy Over Administrative Agencies, Gary Gensler, Lev Menand

Faculty Scholarship

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.

In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as …

The Financial Sector And Global Dollar System, Gary Gensler, Lev Menand, Joshua Younger

Faculty Scholarship

The second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, …

Trump Attacks On Climate Science May Violate Numerous Federal Laws, Michael B. Gerrard

Faculty Scholarship

Starting on its first day on January 20, 2025, the second Trump administration has launched an unprecedented rollback of efforts to fight climate change. The Sabin Center for Climate Change Law’s Climate Backtracker already has 117 items.

Much of this is aimed at scientific research on climate change, or has the effect of inhibiting the conduct and dissemination of this research. Many of these actions may also violate federal laws.

This article discusses these actions, some of their legal implications, and the litigation challenges that have already been brought. It begins with actions that are specifically aimed at climate research, …

Disqualification, Immunity, And The Presidency, Gillian E. Metzger

Faculty Scholarship

Trump v. Anderson and Trump v. United States were two momentous decisions in a momentous Supreme Court term. Sharing then former — and now current — President Trump as a party, the decisions hold important implications for presidential power and accountability.

Anderson arose from a suit brought by Colorado voters to challenge Trump’s inclusion on the Republican primary ballot in that state. They argued that Trump organized and incited the mob that attacked the Capitol on January 6, 2021, and disrupted the Electoral College vote count and certification. In their view, this disqualified him from serving as President under section …

How The European Union Should Respond To Trump's Tariffs, Ignacio García Bercero, Petros C. Mavroidis, André Sapir

Faculty Scholarship

President-elect Trump has threatened to increase United States tariffs to 60 percent on imports from China and 10 percent to 20 percent on imports from other trading partners, including the European Union. In doing so the US would be ignoring its World Trade Organisation commitments and would also rollback the substantial liberalisation that has taken place during the past 80 years, with a potentially major negative impact on the world economy.

In response to this threat, the EU should pursue a three-pronged strategy.

First, the EU should engage bilaterally with the US to seek to avoid the imposition of tariffs. …

Environmental Law In Trump’S Second Term, Michael B. Gerrard

Faculty Scholarship

Donald Trump’s victory in the Nov. 5, 2024 election and Republican control of both the Senate and the House (if that happens) will mean a reversal of much of the environmental progress under the Biden administration, just as the 2016 election reversed large parts of the Obama environmental legacy. However, rapid advances in the technology and economics of clean energy have created a momentum that can be slowed but not stopped. States can adopt their own stronger standards despite what happens in Washington, with a few exceptions, and can use their procurement power and their pension funds’ investment clout to …

The Making Of Presidential Administration, Ashraf Ahmed, Lev Menand, Noah Rosenblum

Faculty Scholarship

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a …

War Powers Reform: A Skeptical View, Matthew C. Waxman

Faculty Scholarship

Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reform-ists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.

How Agencies Can Better Regulate For Racial Justice, Olatunde C.A. Johnson

Faculty Scholarship

On his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs.

This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President …

Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani

Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

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 …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

Executive Overreach And Underreach In The Pandemic, Kim Lane Scheppele, David E. Pozen

Faculty Scholarship

The pandemic that convulsed the globe in 2020 was long foretold but still surprising to many. Within a few months of its appearance, COVID-19 became one of the leading causes of death worldwide. Governments struggled at first to comprehend what was happening – and then reacted in very different ways. Most political leaders followed the advice of epidemiologists. Many declared states of emergency. A few pursued autocratic agendas. And some did almost nothing.

During emergencies, constitutional scholars normally worry about executive aggrandizement at the expense of human rights and democratic values. Emergencies often require national executives to act quickly and …

The Trump Administration And Administrative Law, Peter L. Strauss

Faculty Scholarship

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law

Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …

The Trump Administration And The Rule Of Law, Peter L. Strauss

Faculty Scholarship

Written for a French audience in 2017, this article sought to frame the explosive issues about the Trump presidency in relation to the American trend to strong views of the unitary executive, that in the author's view ignore the striking contrast between to propositions in Article II Section 2 of the Constitution, its only words defining presidential power. Made "Commander in chief" of the military, he is next given the power only to require the opinion in writing from the heads of the executive bodies Congress was expected to create how they intended to carry out the duties Congress had …