President/Executive Department Commons^™

"Because The President Said So:" Agency Reason Giving And Presidential Statements Of Will, Nina A. Mendelson

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Reason giving has long been understood to legitimate administrative agency actions by assuring legal, nonarbitrary, stable, and well-considered decisions. It is core to the Administrative Procedure Act's process and judicial review provisions. But the obligation to give reasons is receiving a challenge from the political accountability side, as executive orders skyrocket and the Supreme Court moves towards unitary executive theory in decisions such as Trump v. Slaughter and Seila Law v. CFPB. In striking down independent agencies under Article II, the Court has emphasized that political accountability of agencies to the President is critical. Both the President and executive agencies …

Legalistic Noncompliance, Daniel Deacon, Leah Litman

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Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?

This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

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Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

The President's Orders Targeting Law Firms As Unconstitutional Bills Of Attainder-- Damning Lessons From The Past, Gary Simson

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“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upsidedown process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.

Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of …

Saving Agency Adjudication, Aaron L. Nielson, Christopher J. Walker, Melissa F. Wasserman

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When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have …

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

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Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Lawyering The Presidency, Deborah Pearlstein

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Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

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A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

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A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Transition Administration, Michael Herz, Katherine A. Shaw

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The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and …

Presidential Transitions Within The Administrative State, Michael E. Herz, Katherine A. Shaw

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No abstract provided.

Democracy, Distrust, And Presidential Immunities, Evan H. Caminker

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This Essay sketches how Ely's representation-reinforcement theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by …

Presidential Control Of Elections, Lisa Marshall Manheim

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In recent decades, presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment and subordination of expertise. These harms, in …

The Executive Branch Anticanon, Deborah Pearlstein

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Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

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Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

Presidential Control Over Disputed Elections, Lisa Marshall Manheim

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An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

After Ice: A New Humane & Effective Immigration Enforcement Paradigm, Peter L. Markowitz

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In recent years, as the U.S. Immigration and Customs Enforcement Agency's ("ICE') brutal tactics have devasted communities across the nation, a growing chorus of activists and policymakers have begun calling for the agency to be abolished. Abolish ICE advocates have made a compelling case for the irredeemable deficiencies of ICE; they have exposed the core injustices that lay at the heart of our current enforcement scheme, and they have proposed specific and thoughtful changes that are both defensible and achievable. However, these changes tend to focus on a negative vision of what we need to eliminate in our current enforcement …

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

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Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …

Nobody Knew How Complicated: Constraining The President's Power To Re(Shape) Health Reform, Sallie Thieme Sanford

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Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA’s central features. The first two sections of this article respectively consider the use of the President’s tools to advance and to subvert health reform.

The final two sections consider the forces constraining the administration’s attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions …

Abolish Ice . . . And Then What?, Peter L. Markowitz

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In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, …

Dismantling Monuments, Richard Henry Seamon

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The Antiquities Act of 1906 authorizes the President to "declare" certain objects "to be national monuments," and to "reserve parcels of land" to protect those national monuments. The Act does not expressly authorize the President to reduce or rescind a monument established by a prior President under the Act, and recent actions by President Donald Trump raise the question whether the Act impliedly authorizes such reductions or rescissions. The majority of legal scholars who have studied this question have said no, the Act does not grant such implied authority. This Article takes the contrary position. The President's authority under the …

President Trump's Emerging Maritime Policy, Craig H. Allen

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President Donald Trump was elected on a pledge to make America great again. Although he did not enter office with a comprehensive national maritime policy, the elements of such a policy have begun to emerge. Since taking office on January 20, 2017, Trump and the Republican controlled 115th Congress have enacted broad tax reforms and significantly increased defense spending, the first step toward rebuilding the US Navy to 355 ships. The 115th Congress also invoked the Congressional Review Act of 1996 to overturn 14 rules issued by federal agencies during President Obama's term.

Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson

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For over one hundred years, presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial and …

Contemporary Practice Of The United States Relating To International Law, October 2017, Kristina Daugirdas, Julian Davis Mortenson

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In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior

Contemporary Practice Of The United States Relating To International Law, July 2017, Kristina Daugirdas, Julian Davis Mortenson

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In this section: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • …

Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz

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On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation.

There are clear dangers in allowing a president …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

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In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

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American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …

A Bipartisan Tax Reform?, Reuven S. Avi-Yonah

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A Bipartisan Tax Reform?By Reuven S. Avi-YonahIf one listens to what Democratic and Republicancandidates for president are saying on the cam-paign trail, it would appear that the chances for taxreform in 2017 and beyond are minimal. A biparti-san approach is essential for tax reform to passbecause even if there are majorities from the presi-dent’s party in both houses, major tax reform wouldnot likely get through the Senate without 60 votes.But the parties seem very far apart on tax reform.Democrats are focused on using the tax system toreduce inequality and are determined to raise thetax rates at the top of the …

Confronting Power In Public Law, Kate Andrias

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In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …