President/Executive Department Commons^™

Talking Trump And The Twenty-Fifth Amendment: Correcting The Record On Section 4, Joel K. Goldstein

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The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some …

The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein

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It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard …

Restoring The Legitimacy Of Private Antitrust Enforcement, Robert H. Lande, Joshua P. Davis

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This is a draft chapter from the American Antitrust Institute's 2017 recommendations to the 45th President of the United States. It contains a brief but well-deserved defense of the benefits of private antitrust enforcement and a critique of the claims that private enforcement in the United States is excessive, that it leads to overdeterrence, and that the courts are plagued with widespread frivolous antitrust lawsuits. It also offer a number of specific recommendations for the new administration to implement in the private antitrust enforcement area, including:

* Educate the courts, the public, and federal and state legislatures about the virtues …

Congressional And Presidential War Powers As A Dialogue: Analysis Of The Syrian And Isis Conflicts, Charles Tiefer, Kathleen Clark

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Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President's powers under Article II of the Constitution, and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This Article instead focuses on the process of dialogue between Congress and the President prior to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. response to Syrian President Assad's use of chemical weapons in 2013, and the rise of …

Deferred Action: Considering What Is Lost, Elizabeth Keyes

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This response to Professor Motomura considers what is lost through the elaboration of formally defined boundaries around prosecutorial discretion. Professor Motomura and others in this Issue rightly extol the many benefits of the President's November 2014 executive actions. While I share the view that those benefits are considerable, I believe a full accounting requires us to consider what gets lost in this process, including identification of the immigrants in the limbo space between the actions' prospective beneficiaries at the one end and those who are priorities for removal on the other. This Essay focuses on the cost that comes from …

Can The President And Congress Establish A Legislative Veto Mechanism For Jointly Drawing Down A Long And Controversial War?, Charles Tiefer

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In the simplest case: Congress declares war, and does not intrude on the President's solo decision about when the troops come home. However, in our time, long wars, such as in Afghanistan and Iraq, occur with great tension between the two elected branches of government over the pace of a drawdown. Sometimes it may be a hawkish Congress that disagrees with a President reluctant to continue the war at full troop levels. To find a joint way to draw down the American troops in the war zone, they may seek congressional mechanisms to resolve their differences with interactive processes. Then, …

Obama's Woes, Kenneth Lasson

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This short op-ed piece discusses Barack Obama's presidency, particularly with regard to Jewish issues and with Israel and the Middle East. The writer offers his rationale why the President's support among Jewish voters is slipping.

Presidential Memories: Lincoln's Relationship With The Jews - Remembered On President's Day, Kenneth Lasson

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This article examines the relationship President Abraham Lincoln had with members of the Jewish faith.

Ever since George Washington, U.S. presidents have made inclusive gestures toward Jewish-American citizens and soldiers, but only Abraham Lincoln, whose 291st birthday we celebrated last week, ever officially intervened on their behalf. He did it twice within the span of two years. During his political career Lincoln had many Jewish associates, advisers and supporters.

During the Civil War General Grant issued General Order No. 11, which is also discussed. This order was a result of Grant’s perception that Jews were participating in a black market …

Choosing Justices: How Presidents Decide, Joel K. Goldstein

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Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …

Presidents, Preemption, And The States, Michele E. Gilman

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Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a …

Taking From The Twenty-Fifth Amendment: Lessons In Ensuring Presidential Continuity, Joel K. Goldstein

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Although some have criticized the Twenty-fifth Amendment to the United States Constitution for leaving gaps in America’s provisions for addressing presidential succession and inability, such complaints are misguided. The Amendment represented a major step forward by providing sensible and workable procedures to remedy some of the most glaring problems the nation faced. Its architects recognized the remaining gaps but realized that advancing a more comprehensive measure would preclude any progress. Nonetheless, remaining gaps present an unacceptable risk that the United States will find itself without a functioning President whose exercise of presidential powers and duties is seen as legitimate. What …

The President As Scientist-In-Chief, Michele E. Gilman

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During the Bush Administration, many scientists, both inside and outside of government, asserted that the President was distorting scientific knowledge to achieve political ends. In controlling the scientific output of government agencies, President Bush acted consistently with unitary executive theory. Under this theory, the President can direct the output and discretion of government agencies. This article examines the tension between a unitary executive and government agencies engaged in scientific research and policy making. In particular, the article assesses the legality of two high profile instances in which President Bush allegedly distorted scientific data to achieve his policy objectives: global climate …

Cheney, Vice Presidential Power And The War On Terror, Joel K. Goldstein

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It is generally conceded that Vice President Cheney has been our most influential vice president. During his two terms, the office assumed a significance which his predecessors, even those who themselves were quite significant, would not have thought possible. Whereas historically the vice presidency had been dismissed as too feeble, the Cheney vice presidency was attacked as too robust.

The unprecedented power of Cheney as vice president had many sources. One of them was the war on terror. It, of course, assumed an unexpected prominence after 9/11, and the war on terror contributed to Cheney’s ascendance and provided the political …

Citizen Mccain, Michael I. Meyerson

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No abstract provided.

Litigating Presidential Signing Statements, Michele E. Gilman

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In response to President George W. Bush's aggressive use of presidential signing statements, several members of Congress as well as a prominent Taskforce of the American Bar Association have proposed legislation to provide for judicial review of signing statements. These critics assert that the President must veto legislation with which he disagrees, rather than use signing statements to refuse to enforce statutes that he signs into law. This article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing to raise such a challenge. Congress might be …

Congress's Transformative Republican Revolution In 2001-2006 And The Future Of One-Party Rule, Charles Tiefer

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In 2001 - 2006, Republican leadership in the legislature circumvented procedural norms to implement an ideological agenda that precluded the minority party from making alternative proposals and voicing criticisms. With the Republican majority in the Senate falling to 50-50 in 2000, President Bush's assumption of office, despite having lost the popular vote, set the tone for what would become an era of illegitimate procedural reform cloaked in secrecy and deniability. Through closed-door conferences and closed-rules, Republican leadership in the House and Senate turned the clock back on civil liberties, passed unfavorable and convoluted tax cuts, and used transformed health care …

If At First You Don't Succeed, Sign An Executive Order: President Bush And The Expansion Of Charitable Choice, Michele E. Gilman

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This article analyzes whether President Bush's charitable choice executive orders, which permit religious organizations to apply for federal funds to deliver social services, are a permissible exercise of presidential power. Although Congress has enacted charitable choice provisions in some major statutes, including the 1996 welfare reform act, it debated but did not extend charitable choice throughout the entire federal human services bureaucracy, as do the President's executive orders. The core question the article examines is whether President Bush's charitable choice executive orders constitute permissible gap-filling of ambiguous statutes under the Chevron doctrine or impermissible exercises of executive lawmaking under Youngstown …

Can Appropriation Riders Speed Our Exit From Iraq?, Charles Tiefer

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To explore the implications of riders - provisions added to appropriation bills that "ride" on the underlying bill - on the United States' continued military force in Iraq, the author draws three hypotheticals, each focusing on the debate surrounding the policy and political disputes raised by the use of such riders. A "withdrawal" rider, which would authorize funding only if there exists a plan to withdraw American ground troops by a set deadline, remains the most important - and controversial - rider. Riders may also significantly affect wartime policies, like those that limit the President's use of reservists in combat …

The Lamentable Notion Of Indefeasible Presidential Powers: A Reply To Professor Prakash, Harold J. Krent

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No abstract provided.

The Great Writ Of Incoherence: An Analysis Of Supreme Court's Rulings On "Enemy Combatants", Gregory Dolin

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On June 28, 2004, the United States Supreme Court released its much awaited decisions in the cases posing a challenge to the Executive's self-professed authority to detain and indefinitely hold individuals designated as "enemy combatants." The cases arose from the "war on terrorism" that was launched after the attack on the United States on September 11, 2001. When each decision is looked at individually, the result seems to make sense and, given the outcome (affording detainees rights of judicial review), feels good. Yet when these decisions are looked at collectively, it is hard to believe that they were issued by …

Enron, Watergate And The Regulation Of The Legal Profession, Arnold Rochvarg

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The most famous scandal of the twentieth century was the Watergate scandal, which most notably led to the resignation of Richard Nixon as President of the United States. The significance of Watergate, however, extends further than the resignation of Nixon. Because Watergate involved so many lawyers, it had a great impact on the regulation of the legal profession. Although the twenty-first century has just started, the strongest contender for this century's most famous scandal is the Enron scandal. Although the Enron scandal is identified mostly with misconduct by accountants and corporate officials, it too involved lawyers and has impacted on …

Introduction, Joel K. Goldstein

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This issue of the Saint Louis University Law Journal traces, in some sense, to two events that occurred a quarter century ago. On February 6, 1977, Richard J. Childress, professor and former dean, of Saint Louis University School of Law died at the age of fifty-five. Barely seventeen days earlier, President Jimmy Carter had pledged an “absolute” commitment to human rights in his inaugural address and called for “international policies which reflect our own most precious values.”[1] Later that spring, President Carter called for “a new American foreign policy—a policy based on constant decency in its values and on optimism …

Conditioning The President's Conditional Pardon Power, Harold J. Krent

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No abstract provided.

Can The Vice President Preside At His Own Impeachment Trial?: A Critique Of Bare Textualism, Joel K. Goldstein

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Turn the clock back for a moment to August 1973. In the midst of the burgeoning Watergate scandal, the nation discovered that Vice President Spiro T. Agnew was being investigated for allegedly accepting bribes from contractors, and for committing tax fraud while Governor of Maryland and Vice President. The investigation, by attorneys in the United States Attorneys Office in Maryland, ultimately gathered sufficient evidence to present to a grand jury. To avoid the spectre of likely indictment and prosecution, Agnew elected to resign his office and plead nolo contendere.[1]
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/="/">But suppose Agnew had decided not to go quietly.[2] …

The Specially Investigated President, Charles Tiefer

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This article argues that the new legal status - the "specially investigated President" - conferred upon recent presidents reflects an unprecedented change in the criminal investigation process of the President. Although recent presidents have experienced formal criminal investigations, each have used creative and legitimate ways to escape indictment, trial, or impeachment. By investigating President Bush and President Clinton's ability to successfully avoid prosecution, this article presents an analytical framework to explain the issues surrounding the "specially investigated President," and offers suggestions on how to reform the process.

In his analysis, the author illustrates the tension between opposing viewpoints regarding the …

Skunk In An Onion Patch Buchanan Threatens Dole If He Doesn't Shut Up-And America If He Does, Kenneth Lasson

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Regardless of his finish in the primaries, Mr. Buchanan is determined to be heard from at the Republican National Convention in late summer. Mr. [Bob Dole] would like his endorsement for the votes it would provide, but cannot be serious about hoping "that Pat Buchanan would find it in his heart as a good Republican to join forces and close ranks." Can good Republicans be outright bigots? Does Mr. Dole have a political death wish?

What's in Mr. Buchanan's heart is the cause. "We'll go forward," he vowed on national television, "fighting for the cause." But the purity of the …

Fragmenting The Unitary Executive: Congressional Delegations Of Administrative Authority Outside The Federal Government, Harold J. Krent

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No abstract provided.

Executive Control Over Criminal Law Enforcement: Some Lessons From History, Harold J. Krent

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No abstract provided.

A Framework For Evaluating The Antitrust Legacy Of The Reagan Administration, Robert H. Lande

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No abstract provided.