President/Executive Department Commons^™

Levers Of Default: Can The President Unilaterally Alter The Terms Of The National Debt?, Lev E. Breydo, Nathan B. Oman

Faculty Publications

The inviolability of America’s $30 trillion debt is a cornerstone of global markets and the U.S. economy. This Essay identifies a critical loophole: the President’s underappreciated power to dramatically change its legal structure—and argues that Congress should act to prevent a potential catastrophe.

The Essay details, for the first time in the literature, the arcane legal architecture underpinning America’s sovereign borrowings. Our analysis finds that although the President lacks authority to change the terms of outstanding debt retroactively, the President can accomplish similar goals by issuing new debt instruments that embed unprecedented powers. In surprisingly short order, a determined Executive …

Regulatory History And Judicial Review, Todd Phillips, Anthony L. Moffa

Faculty Publications

The Administrative Procedure Act requires federal agencies to simply "incorporate in the rules adopted a concise general statement of their basis and purpose" after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are arbitrary and capricious based on agencies' contemporaneous rationales. Judge-created doctrines incentivize agencies to rely on these "concise" statements to elucidate their rationales, and as a result, rulemaking preambles have ballooned in size as agencies seek to insulate themselves from critical courts.

This article contends that although the APA's statutory requirement is in tension with …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

Crt Forward: Tracking The Attack On Critical Race Theory, Taifha Natalee Alexander, Latoya Baldwin Clark, Kyle Reinhard, Noah Zatz

Faculty Publications

(Excerpt)

Critical Race Theory (CRT) is an interdisciplinary practice and approach to understanding the foundations and maintenance of race and racial subordination in the legal system throughout history. Since its genesis in United States law schools in the mid-1980s, CRT has explored how racial, and other, hierarchies have persisted despite advancements in racial justice made during times like the Reconstruction and Civil Rights eras. CRT contests many of the standard assumptions underlying traditional civil rights discourse, including that the legal system is a neutral apparatus disconnected from the legacy of racial subordination in the United States. Since its inception, CRT …

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Faculty Publications

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …

The Foreign Emoluments Clause, Erik M. Jensen

Faculty Publications

Because of the foreign business dealings of President Donald Trump and his family, interpreting the Foreign Emoluments Clause has become a nearly fulltime job for political pundits, with stories about the clause appearing in every conceivable media outlet. The clause provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” If the president is benefitting economically from business dealings with foreign governments (or organizations that might be treated as agencies …

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Faculty Publications

No abstract provided.

Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer

Faculty Publications

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …

Category Errors And Executive Power, Jonathan H. Adler

Faculty Publications

The purpose of this brief essay is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions—where the President’s inherent authority to exercise prosecutorial discretion applies—and what sorts of actions cannot. Specifically, this essay seeks to explain why some particularly controversial actions—such as the Administration’s decision to delay the so-called employer mandate imposed by the Affordable Care Act (ACA) and to “tailor” the application of federal regulations governing greenhouse gas emissions under the Clean Air Act …

Herbert Hoover And The Constitution, John Q. Barrett

Faculty Publications

Herbert Clark Hoover, first an international businessman, a global hero during World War I, and then a cabinet officer under Presidents Harding and Coolidge, was elected president in 1928. The next year, as President Hoover embarked on his progressive agenda for the country, the Roaring Twenties ended, crashingly, in the Great Depression. Hoover responded inadequately, constrained more by his own beliefs in volunteerism than by constitutional limits on his powers. His failure to relieve public suffering overshadowed his presidential accomplishments, including innovative government programs and three Supreme Court appointments.

Standing Outside Article Iii, Tara Leigh Grove

Faculty Publications

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …

The Transformative Twelfth Amendment, Joshua D. Hawley

Faculty Publications

This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power …

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

Presidential Power And Constitutional Responsibility, Thomas P. Crocker

Faculty Publications

Some constitutional theorists defend unbounded executive power to respond to emergencies or expansive discretionary powers to complete statutory directives. Against these anti-Madisonian approaches, this Article examines how the textual assignment of republican virtues helps to constitute and constrain the president's power. The Madisonian solution for constitutional constraint both creates institutions for unenlightened statesmen and relies on virtue to make governing possible. Constitutional responsibility is a consistent textual theme found in the command to "take Care that the Laws be faithfully executed," the responsibility to remain faithful to the office of president, and the obligation to preserve the Constitution itself. Although …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

Faculty Publications

Part I of this article details the Bureau of Prisons' rules and policies governing inmate placement, including the most recent iteration. Part II examines Chevron27 and the Bureau of Prisons' extraordinary justification exception rule. Part III turns to the threshold matter of obtaining judicial access to challenge the Bureau of Prisons' new rule, with Part III.A arguing that the federal courts should relax their standards when faced with exceptions to the exhaustion requirement and Part III.B arguing for the adoption of a federal public importance exception to the mootness doctrine. The article concludes that these changes will further Congress' dual …

State Secrets & Executive Accountability, Christina E. Wells

Faculty Publications

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration’s approach to the state secrets privilege through the lens of “explanatory accountability” – i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.Although President Obama entered office criticizing the Bush administration’s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration’s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and …

Legalism And Decisionism In Crisis, Noa Ben-Asher

Faculty Publications

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is …

Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins

Faculty Publications

No abstract provided.

The President, Congress And The Security Council: Counterterrorism And The Use Of Force Through The Internationalist Lens, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

This symposium is focused on the powers of the U.S. presidency, a topic that typically implies questions of constitutional law. More narrowly, the topic of presidential powers in the area of counterterrorism typically raises questions of how the Constitution addresses the shared war powers of the President and Congress. U.S. legal scholars have generally not framed the question of presidential power to use force against transnational terrorist groups as one of international law or international institutions. Rather, the separation of powers question has focused on historical and functional views of the President's war powers and whether and to what …

Legal Holes, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt[] the executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial …

Three Narratives Of Medellín V. Texas, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellín v. Texas (Medellín II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror.

For international law scholars, the significance of …

Return To Missouri V. Holland: Federalism And International Law, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement …

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Faculty Publications

No abstract provided.

Medellin, Norm Portals, And The Horizontal Integration Of International Human Rights, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

The dominant narrative of the Medellín v. Dretke line of cases challenging widespread noncompliance by the United States with the notification provisions of Article 36 of the Vienna Convention on Consular Relations (VCCR) tells a story of vertical treaty enforcement. The United States has agreed to be bound by a treaty that requires law enforcement authorities to inform foreign nationals arrested in this country of their right to notify their consulates and also requires authorities to permit the foreign consulate to assist its nationals. The United States has further agreed that the International Court of Justice (ICJ) has jurisdiction …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …

Information Control In Times Of Crisis: The Tools Of Repression (Symposium, Privacy And Surveillance), Christina E. Wells

Faculty Publications

This article identifies several tools of information control that occur consistently throughout history. The government does not use all of these tools in every national security crisis. Nor does it always abuse them. However, the patterns that emerge suggest a certain predictability to (1) the government's actions during national security crises, and (2) the potentially negative consequences flowing from them that warrants our attention. Understanding this historical pattern of government action allows one to identify and potentially prevent future problems. This is especially important in the post-9/11 world in which the government has asked for and received controversial powers with …