President/Executive Department Commons^™

Publish And Perish: Congress's Effort To Snip Snepp (Before And Afsa), Michael J. Glennon

Michigan Journal of International Law

Over three million present and former federal employees, of the Executive as well as the Congress, are parties to so-called "pre-publication review agreements," which require that they submit any writings on topics related to their employment for Executive review prior to publication. In Section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Congress attempted to restrict the use of funds to implement or enforce certain of those agreements. On May 27, 1988, however, the United States District Court for the District of Columbia, in American Foreign Service Association v. Garfinkel ("AFSA "), struck that section down, …

Political Questions In International Trade: Judicial Review Of Section 301?, Erwin P. Eichmann, Gary N. Horlick

Michigan Journal of International Law

Section 301 of the Trade Act of 1974 ("Section 301") has become an increasingly potent and widely-used tool in the U.S. arsenal of trade policy measures. The past few years have seen a proliferation of Section 301 cases, affecting the trade of goods and services in Europe, Asia, and Latin America. Even so, in the debate over the Omnibus Trade and Competitiveness Act of 1988 ("Omnibus Trade Act"), Congress expressed impatience with the President's discretion in not undertaking more Section 301 retaliations. But while much attention has focused on the politics and policy aspects of Section 301, little has been …

Some Modest Proposals On The Vice-Presidency, Richard D. Friedman

Articles

There are many good things in the Constitution, but the vice-presidency isn't one of them. In Part I of this essay, I will argue that there are three basic problems with the vice-presidency: the method of nomination, the method of election, and the office itself. That just about covers the waterfront.' If we had to do it all over again, we almost certainly would not" create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a …

Extended Voluntary Departure: Limiting The Attorney General's Discretion In Immigration Matters, Lynda J. Oswald

Michigan Law Review

Fifteen times in the past quarter-century, the Attorney General has decreed that aliens of certain nationalities could temporarily remain in the United States regardless of their visa status. Government officials have characterized these grants of blanket extended voluntary departure (EVD) as a means of protecting aliens from life-threatening conditions in their homelands. The Attorney General's actions were apparently undertaken for humanitarian reasons and went largely unnoticed by the public.

Part I of this Note defines EVD and distinguishes it from related forms of deportation relief. Part II describes the Employees Union court's holding. The evolution of American perceptions of immigration …

Erisa Enforcement: Mandate For A Single Agency, Beverly M. Klimkowsky, Ian D. Lanoff

University of Michigan Journal of Law Reform

In Part I, this Article reviews the aspects of pensions that justify the attention of Congress during consideration of budgets and the federal deficit. Part II documents the initial administrative problems created by the congressional compromise that divided administrative responsibility between the Department of Labor and the Internal Revenue Service. Although Reorganization Plan No. 4 solved some of the initial problems, the remaining problems are not amenable to resolution within a system of responsibility divided between separate agencies. The specific problems associated with enforcement are discussed in Part III, which identifies the total failure of enforcement as a major threat …

The Making Of International Agreements: Congress Confronts The Executive, Michigan Law Review

Michigan Law Review

A Review of The Making of International Agreements: Congress Confronts the Executive by Loch K. Johnson

A Republic, If You Can Keep It, Daniel N. Hoffman

Michigan Law Review

A Review of Undeclared War: Twilight Zone of Constitutional Power by Edward Keynes and The War-Making Powers of the President: Constitutional and International Law Aspects by Ann Van Wynen Thomas and A.J. Thomas, Jr.

Congress, The Executive Branch, And Special Interests: The American Response To The Arab Boycott Of Israel, Michigan Law Review

Michigan Law Review

A Review of Congress, The Executive Branch, and Special Interests: The American Response to the Arab Boycott of Israel by Kennan L. Teslik

Beyond The Limits Of Executive Power: Presidential Control Of Agency Rulemaking Under Executive Order 12,291, Morton Rosenberg

Michigan Law Review

This Article addresses the substantial legal problems posed by Executive Order 12,291. Part I argues that the Order, taken as a whole or separated into its procedural and substantive components, violates the constitutional separation of powers. Drawing on the analytic framework outlined by Justice Jackson in the Steel Seizure case, Part I maintains that courts should demand clear congressional support for the Order's requirements. The available evidence, however, conclusively demonstrates Congress's intent to deny the President formalized, substantive control over administrative policymaking. As interpreted by the Supreme Court, moreover, the informal rulemaking provisions of the Administrative Procedure Act (AP A) …

The Solicitor General And Intragovernmental Conflict, Michigan Law Review

Michigan Law Review

This Note considers the way in which the Solicitor General has resolved-and should resolve-such ambiguities in his role as advocate for the United States. First, the Note examines the accommodation of interests represented by the Solicitor General's responses to discordant obligations. Second, it analyzes the common law and statutory sources of the Solicitor General's responsibilities. Finally, the proper role of the Solicitor General is assessed, giving due consideration to his position .as mediator among interest groups within the government and to the institutional constraints to which he is subject.

Congressional Control Of Agency Privilege, Mark A. Luscombe

University of Michigan Journal of Law Reform

This note seeks to provide an introductory and largely historical analysis of "agency privilege:" the refusal of federal executive officials to furnish information and documents to congressional bodies absent the invocation of a claim of privilege by the President. After a brief survey of the origins of agency privilege in part I, the history and nature of the competing interests of congressional investigations and autonomy of executive departments and agencies will be discussed in part II. Part III explores the constitutional basis of the claim and analyzes other justifications proffered in specific circumstances. Part IV weighs the merits of various …

Scope Of Disclosure Of Internal Revenue Communications And Information Files Under The Freedom Of Information Act, Peter R. Spanos

University of Michigan Journal of Law Reform

This article will discuss the proper scope of disclosure under the Freedom of Information Act of the files and administrative and policy materials of the IRS, with particular attention to the following currently contested issues: (1) the extent to which IRS guideline documents and private letter rulings are subject to disclosure; (2) the proper scope of the FOIA exemption for "interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" as applied to the IRS; and (3) the scope of the exemption for "investigatory records …

Presidential Pensions And Impeachment: A Proposal For Reform, Patrick E. Mears

University of Michigan Journal of Law Reform

The Former Presidents Act grants annual monetary and clerical allowances and free office space to "former Presidents." Under the Act a President is ineligible to receive any retirement benefits if he or she is removed from office by impeachment and conviction in the Congress of the United States. However, a President facing imminent impeachment can retain the benefits by resigning before the impeachment process culminates in his removal from office. Constitutional considerations indicate that the benefits conferred by the Act could not be revoked or reduced by special congressional legislation upon resignation; such action could be challenged as a bill …

Separation Of Powers: Congrssional Riders And The Veto Power, Richard A. Riggs

University of Michigan Journal of Law Reform

It has been suggested that in order to avoid this potential crisis statutory authority to veto nongermane riders be granted to the President. One author has contended that no such statute is needed, that the President presently has such power under Article I, Section 7 of the Constitution. On the other hand, bills have been introduced in both houses of Congress which might have specifically denied that power to the President. This article examines whether there is any constitutional ground on which the President could take the unprecedented action of separately vetoing congressional riders.

The Presidential Monopoly Of Foreign Relations, Raoul Berger

Michigan Law Review

Because of the widespread ramifications of foreign relations, discussion must perforce be confined to presidential executive agreements, and whether the Senate may be excluded from knowledge of, and participation in, negotiations with foreign nations as a part of the treaty-making process. Mention only can be made of the legislative shortcomings which have contributed to the all but total takeover of foreign relations by the President, and of the need for procedural reform in the Senate if its participation is to be effective. Could we view the matter as an original question, that is, were we drafting or amending a Constitution …

Max Planck Institute For Comparative Public Law And International Law: Judicial Protection Against The Executive, Pieter Van Dijk

Michigan Law Review

A Review of Judicial Protection Against the Executive Edited by the Max Planck Institute for Comparative Public Law and International Law

Policing The Executive Privilege, Keith Borman

University of Michigan Journal of Law Reform

In response to the increasing number of confrontations over the use of the executive privilege, Senator William Fulbright has placed before the Senate a bill designed to avoid the confusion that now exacerbates the tension between the legislative and executive branches of government. This relatively uncomplicated bill defines procedures for the assertion of the executive privilege and provides sanctions to be imposed when these procedures are abused or ignored. This note reviews the nature of the controversy between the two branches of government which has contributed to the introduction of the proposed legislation, and then proceeds to examine the provisions …

The Presidential Veto Power: A Shallow Pocket, Michigan Law Review

Michigan Law Review

Problems created by the uncertain scope of the President's pocket-veto power do not often arise, but neither are they a matter of purely academic interest. Indeed, two Senators who have questioned President Nixon's use of the pocket-veto power base their challenge on the ambiguous language of the pocket-veto provision. They argue that the pocket-veto provision was intended to apply only in circumstances involving a final adjournment at the end of a term or a session of Congress and was not intended to apply to brief adjournments-such as the 1970 Christmas recess-occurring within a session of Congress. Senator Kennedy contends that …

The Constitution, Congress, And Presidential Elections, Albert J. Rosenthal

Michigan Law Review

It has been recommended by a prestigious commission of the American Bar Association and endorsed by the ABA's House of Delegates. The Bar Association of the City of New York, which had previously recommended a different proposed amendment, has now shifted its support to direct popular vote, as has Senator Birch Bayh, Chairman of the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary. A Gallup poll indicates that 66 per cent of the nation supports this amendment, with only 19 per cent opposed.

It must be remembered, however, that a decision to amend the Constitution is, as …

Constitutional Law--Executive Agreements--International Law--Executive Authority Concerning The Future Political Status Of The Trust Territory Of The Pacific Islands, Michigan Law Review

Michigan Law Review

It is fair to conclude that the President, even in the absence of express congressional authorization, has constitutional authority indeed, a constitutional duty-to carry out those obligations assumed under the Micronesian trusteeship agreement. Execution of this agreement lies within the scope of the authority given the President by the faithful execution clause and by his independent constitutional powers in the area of foreign policy. Thus, it is next necessary to determine the scope of the president's authority under the trusteeship agreement.

Representing The Consumer Interest In The Federal Government, Esther Peterson

Michigan Law Review

In 1964 President Johnson established both the President's Committee on Consumer Interests and the position of Special Assistant to the President for Consumer Affairs. The President declared that he was "taking action to assure that the .voice of the consumer will be loud, clear, uncompromising, and effective in the highest councils of the Federal Government." Never before had the consumer been expressly represented on so high a level. The Committee on Consumer Interests was given a unique task. "The value of our society," the President said, "cannot be measured in the mass, but in the condition of each individual." The …

Non-Tariff Import Restrictions: Remedies Available In United States Law, Craig Mathews

Michigan Law Review

Since World War II, a fundamental objective of the foreign policy of the United States has been to strengthen political and economic relationships among free-world nations. An integral element of this policy has been the expansion of international trade on mutually beneficial terms. The legal and practical problems of reducing or eliminating restrictions on the international movement of commodities have therefore assumed a major importance.

International commodity transactions have traditionally been subject to a wide range of such restrictions. In the case of imports, the most familiar barriers are tariffs and formal quotas or embargoes imposed by national governments. In …

International Law-Sovereign Immunity-State Court Authority To Determine Title To Property Under Its Jurisdiction Despite A Department Of State Suggestion Of Immunity, John A. Krsul Jr., S.Ed.

Michigan Law Review

In 1952 plaintiff brought a creditor's action for the appointment of a permanent receiver for the assets of the defendant located in New York. Defendant, Zivnostenska Banka, was a Czechoslovak corporation that had at one time been engaged in banking activities in New York. Plaintiff succeeded in having a receiver appointed upon proving that defendant had been nationalized, contrary to New York policy and law, by a 1950 decree of the Czechoslovak Government which had merged the defendant and its assets with the State Bank of Czechoslovakia. The instant controversy arose when the receiver attempted to set aside, as a …

Frank: Lincoln As A Lawyer, Spencer L. Kimball

Michigan Law Review

A Review of Lincoln As A Lawyer By John P. Frank

International Law-Soverign Immunity-The First Decade Of The Tate Letter Policy, John M. Niehuss S.Ed.

Michigan Law Review

On May 19, 1952, the State Department announced in the Tate Letter a new policy with regard to the filing of suggestions of immunity in suits against foreign sovereigns. The letter indicated that the Department would begin to follow a restrictive theory of sovereign immunity. This meant that it would file a suggestion of immunity if the case arose from acts of the foreign government or its agents which were of a purely governmental character (jure imperii), but would deny immunity in instances where the acts engaged in were of a commercial or proprietary nature which could be …

The Investigatory Powers Of The Comptroller General Of The United States, Gustave M. Hauser

Michigan Law Review

This article examines the statutory responsibility and authority of the Comptroller General to investigate executive action for the purpose of determining whether the legitimacy of his requests for information may be challenged by the executive branch on statutory as well as on constitutional grounds.

The Executive Department Of Government And The Rule Of Law, Frank E. Cooper

Michigan Law Review

For a long time, people have been talking about the executive department of government and the Rule of Law. Indeed, the suggestion of Aristotle that government should be by law, and not by men, represented a protest directed to the earlier Grecian systems of despotically controlled administrative law. It is my privilege this afternoon to carry forward the discussion of a problem that has been talked about for some two thousand years: how to apply the Rule of Law to the executive agencies of the government. They are commonly called "independent agencies" within the executive branch. I suggest that the …

The Supreme Court And The Rule Of Law, Paul G. Kauper

Michigan Law Review

I should like to approach this afternoon's subject along two lines. On the one hand, I propose to develop the subject in terms of the Supreme Court's contribution to our understanding of the Rule of Law, and, on the other hand, I propose to look at the Supreme Court as a governmental institution subject to the Rule of Law. In short, I propose to discuss the Supreme Court both as an instrumentality for the development of the American concept of the Rule of Law and as an institution governed by the Rule of Law. Needless to say, these two approaches …

The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon

Michigan Law Review

The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal. Few dispute the desirability of new …

Taxation - Federal Estate Tax - Effect Of Presidential Freezing Orders On The Creation Of Excludable Bank Deposits For Nonresident Aliens, William Y. Webb

Michigan Law Review

Decedent, a citizen and resident of France, was the sole income beneficiary of a trust fund held in New York by the plaintiff as trustee. An executive order, issued pursuant to the Trading with the Enemy Act, prohibited remittance of trust income to the decedent from 1940 to the time of her death in 1946. As this income accrued, the plaintiff's trust department transferred it to the plaintiff's general banking department in its own name as trustee and subject to its order out of current banking funds. In an action by the executor of the decedent-beneficiary's estate to recover an …