President/Executive Department Commons^™

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

The Administrative Law Of Mccarthyism, Nicholas Handler

Faculty Scholarship

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC …

Communicative Administration: The Administrative State Beyond Legal Administration, Daniel E. Walters

Faculty Scholarship

On many dimensions, the administrative state is at the nadir of its power. The Supreme Court has tightened administrative law controls on agency power, and the Trump Administration has stormed the bureaucracy in an unprecedented blitz designed to kneecap agency capacity and independence. For better or worse, many agencies and their civil servants are being sidelined as meaningful actors in the administration of government. Yet this familiar account doesn’t tell the entire story. At the same time that agencies are being stripped of the power to implement law—what this Article calls “legal administration”— they are steadily accumulating extensive and largely …

Plea Bargain Skepticism When Companies Kill People, Peter R. Reilly

Faculty Scholarship

In 2018 and 2019, two Boeing 737 MAX airplanes fell from the sky, killing 346 people—one of the deadliest corporate crimes in U.S. history. Instead of taking the case to trial, the United States Department of Justice (“DOJ”) addressed the matter by using two different alternative dispute resolution vehicles. First, Boeing was given a three-year deferred prosecution agree-ment. That deal was canceled when DOJ determined the company had breached it. Next, Boeing was given a plea bargain. This Article argues that federal courts, which are empowered to approve or reject plea deals, should be skeptical when the government turns to …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

Beyond Mass Deportation, Nancy Plankey-Videla, Huyen Pham, Angela D. Morrison, Luz E. Herrera

Faculty Scholarship

Donald Trump’s threats to carry out the mass deportation of unauthorized immigrants helped propel him to a second term as President of the United States. For the estimated 11 million people in the U.S. without lawful status, those threats have increased fears of forced returns to their countries of origin. While American immigration law is heavily focused on the legal processes leading to deportation, little attention has been paid to the post-deportation experiences of individuals who must reintegrate into their home countries. This gap in understanding is especially alarming given the high stakes of reintegration. A successful transition can empower …

Joinder, Not Jurisdiction: Toward A New Theory Of Standing, Adam N. Steinman

Faculty Scholarship

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is …

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

Water, Rosario Sanchez, Gabriel E. Eckstein

Faculty Scholarship

As the new US administration begins its term in January 2025, its ability to address complex, interconnected challenges will shape the future of US-Mexico relations. From economic cooperation and migration to shared security concerns, the new president’s leadership will be pivotal in navigating these critical issues and strengthening bilateral ties between Mexico and the United States. Effective collaboration will be vital to building a more prosperous and stable North America.

To support this effort, the Wilson Center’s Mexico Institute has prepared a comprehensive booklet as a practical roadmap for the incoming administration. This publication offers actionable recommendations across six priority …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

Narrow But Deep: The Mcculloch Principle, Collective-Action Theory, And Section Three Enforcement, Neil S. Siegel

Faculty Scholarship

In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party's primary ballot in the state.  The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment.  Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court's rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Hit The Reset Button: Video Games, Platforms, And Changing Antitrust Vertical Merger Policy, Cahill Maffei

Student Scholarship

For decades, antitrust law has treated vertical mergers as almost per se legal. Courts and scholars embraced the economic theories of the Chicago School, which predict that vertical mergers almost always lead to efficiencies that benefit consumers through lower prices. As a result, vertical mergers are almost never challenged and those that are usually fail. More recently, politicians, regulators, and pundits have become increasingly concerned with the growing concentration of wealth and power among America’s large technology corporations. Part of their dominance can be explained by the rapid rise of platform business models, which through network effects can entrench dominant …

Lost In Transmission: How To Bring More Clean Energy Onto The Grid, Ryan Block

Student Scholarship

The Inflation Reduction Act and other policies are pushing solar, wind, and other clean energy technologies into the marketplace. But these generators struggle to make the physical connection to the electricity market because interconnection is proving to be a bottleneck; over 2,000 gigawatts of capacity are waiting to connect to the grid. This Article examines the Federal Energy Regulatory Commission’s (FERC’s) regulations that govern the entry of new generation resources onto the grid. It reviews the statutory underpinnings of FERC’s interconnection authority and analyzes key federal regulations, including pending FERC proposals, and finds that current backlogs are the product of …

Ethical Quagmires For Government Lawyers: Lessons For Legal Education, Susan Saab Fortney

Faculty Scholarship

Each presidential administration faces its own challenges related to the ethics of government officials and lawyers. What distinguished the Trump presidency was the steady stream of news reports that related to controversies involving government lawyers. In examining various controversies, this Essay argues that the ethical standards applicable to government lawyers are often thorny and debatable. Fortney discusses how controversies involving alleged misconduct by government lawyers reveal the range and complexity of ethical dilemmas that government lawyers encounter. This Essay asserts that legal educators should do more to empower government lawyers to deal with such ethics issues. To highlight key ethics …

Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van

Faculty Scholarship

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic …

Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim …

Amending Insurrection: Restoring The Balance Of Power In The Insurrection Act, Jeremy S Campbell

Texas A&M Law Review

The Insurrection Act allows the president to domestically deploy and utilize the federal standing army and state militias to perform functions normally performed by domestic law enforcement. The president can invoke the Act when circumstances make it impracticable to enforce domestic law by normal means, when the execution of the law is obstructed such that it deprives citizens of rightful legal protections, or upon the request of a state. Under the current version of the Act, the president possesses the sole and absolute discretion to determine when it is invoked during the two former instances above. When invoked, the Act …

The Debt Collection Pandemic, Pamela Foohey, Dalié Jiménez, Christopher K. Odinet

Faculty Scholarship

As of May 2020, the United States' reaction to the unique and alarming threat of COVID-19 has partially succeeded in slowing the virus’s spread. Saving people’s lives, however, came at a severe economic cost. Americans’ economic anxiety understandably spiked. In addition to worrying about meeting basic expenses, people’s anxieties about money necessarily included what might happen if they could not cover already outstanding debts. The nearly 70 million Americans with debts already in collection faced heightened anxiety about their inability to pay.

The coronavirus pandemic is set to metastasize into a debt collection pandemic. The federal government can and should …

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Executive Overreaching In Immigration Adjudication, Fatma Marouf

Faculty Scholarship

While Presidents have broad powers over immigration, they have traditionally shown restraint when it comes to influencing the adjudication of individual cases. The Trump Administration, however, has pushed past such conventional constraints. This Article examines executive overreaching in immigration adjudication by analyzing three types of interference. First, the Article discusses political interference with immigration adjudicators, including politicized appointments of judges, politicized performance metrics, and politicized training materials. Second, the Article addresses executive interference with the process of adjudication, examining how recent immigration decisions by former Attorney General Jeff Sessions curtail noncitizens’ procedural rights instead of making policy choices and promote …

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 …

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 …

Cybersecurity, Encryption, And Defense Industry Compliance With United States Export Regulations, Rose Richerson Eichler

Texas A&M Journal of Property Law

Exports of technology and items containing technical information are regulated by the United States government. United States export control regulations exist to help protect national security, economic, and political interests. United States defense industry companies manufacture products and develop technologies and information that the United States has a particular interest in protecting. Therefore, defense industry companies must comply with United States export control regulations when exporting items and information to their international partners and customers. An “export” not only includes shipments of hardware or other tangible assets to foreign end-users but also includes the sharing of certain types of information …

The Cycles Of Defense Acquisition Reform And What Comes Next, Andrew Hunter

Texas A&M Journal of Property Law

Many aspects of war and national defense appear to run in cycles. Indeed, the identification and explanation of these cycles is a favorite pastime of military scholars. Historians and political scientists characterize war as alternating cycles of offensive and defensive dominance. The idea of cyclicality may in fact be hardwired into academic discussions and understandings of war. For example, early war theorist Carl von Clausewitz described an ever-changing character of war undergirded by war’s fundamentally unchanging nature. Because the dominant theoretical understanding of war is that it holds a mixture of both fixed and constantly evolving elements, our concept of …

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 …

The Preparedness Piñata: Knocking Out The Problems In Texas's Emergency Management Legal Framework To Enhance Performance At The Local Level, William S. Gribble

Student Scholarship

Texas has a very comprehensive emergency management program that should be the envy of every state in the union. However, the manner in which we as a profession have achieved this may have inadvertently circumvented the proper administrative law procedures required in Texas. This has likely caused Texas to accidently engage in ad hoc rulemaking that--if left as is--could set the conditions to create a damaging friction between the state and municipal governments. That friction would erode the interoperability necessary to protect property and to save lives during a disaster. This Article provides: (1) a brief history of the development …

The Foreign Corrupt Practices Act Turns 40: "Reflections On Walmart's Enhanced Ethics & Compliance Program", Jay T. Jorgensen

Texas A&M Law Review

As Walmart’s business has been changing, the company has also evolved and changed in our corporate governance. In 2012, the company started a significant effort to enhance our ethics and compliance programs. Prior to that time the company maintained separate compliance efforts in different countries. For example, Walmart’s business in the United States had a well-developed compliance program. The company had separate compliance-related activities and personnel in our businesses in Canada, China, Mexico, and elsewhere. All of these compliance programs operated independently of each other, reporting to their local business leaders.

"Enemy Of The People": Negotiating News At The White House, Carol Pauli

Faculty Scholarship

How can the press serve as a check on executive power when the president calls it “fake” and the White House denies facts? As journalists debate the right response, this article offers advice from the perspective of a journalist who is now in the legal academy. Drawing on legal scholarship in the field of conflict resolution — as well as literature in journalism and political science — this article analyzes the White House press briefing as a negotiation over both the content of news and the relationship of the press and president. It aims to help the press fulfill the …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …