President/Executive Department Commons^™

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Twenty-Fifth Amendment: An Explanation And Defense, The, John D. Feerick

Faculty Scholarship

In this article, Dean Feerick reviews the history of presidential succession before the Twenty-fifth Amendment's ratification, the debate and discussion leading to the amendment's adoption, and current criticisms of the amendment from the medical and political community. In particular, Feerick addresses current suggestions for the creation of an independent medical panel to determine presidential inability. He argues that such a panel would be contrary to both the principle of separation of powers and the philosophy of the Twenty-fifth Amendment that those closest to the President ,and those accountable to the public, should be entrusted with the power to declare a …

The Item Veto In State Courts, Richard Briffault

Faculty Scholarship

Contemporary debates about state constitutional law have concentrated on the role of state constitutions in the protection of individual rights and have paid less attention to the state constitutional law of government structure.This is ironic since the emergence of a state jurisprudence of individual rights has been hampered by the similarity of the texts of the state and federal constitutional provisions concerning individual rights, whereas many state constitutional provisions dealing with government structure have no federal analogues, and thus state jurisprudence in this area is free to develop outside the dominating shadow of the Federal Constitution and the federal courts. …

The Protective Power Of The Presidency, Henry Paul Monaghan

Faculty Scholarship

Walter Bagehot's still-admired study of the English Constitution distinguished between its "dignified" and "efficient" parts. Bagehot argued that the English Constitution's "dignified" theory of parliamentary supremacy masked the (then) dominant reality of cabinet government. Attacking what he described as the "literary" theory of the American Constitution, Woodrow Wilson posited a similar distinction. Writing in 1885, Wilson asserted that the "literary" theory of American government embodied in Federalist's "ideal checks and balances of the federal system" obscured its efficient principle: "government by the chairmen of the Standing Committees of Congress." An ardent admirer of ministerial government, Wilson especially lamented the condition …

Judicial Deference To Executive Precedent, Thomas W. Merrill

Faculty Scholarship

In 1984, the Supreme Court adopted a new framework for determining when courts should defer to interpretations of statutes by administrative agencies. Previous decisions had looked to multiple contextual factors in answering this question. Chevron U.S., Inc. v. National Resources Defense Council, Inc. appeared to reject this approach and require that federal courts defer to any reasonable interpretation by an agency charged with administration of a statute, provided Congress has not clearly specified a contrary answer. The Court justified this new general rule of deference by positing that Congress has implicitly delegated interpretative authority to all agencies charged with enforcing …

Ronald V. Dellums V. George Bush (D.D.C. 1990): Memorandum Amicus Curiae Of Law Professors, Bruce A. Ackerman, Abram Chayes, Lori Fisler Damrosch, John Hart Ely, Erwin N. Griswold, Gerald Gunther, Louis Henkin, Harold Hongju Koh, Philip B. Kurland, Laurence H. Tribe, William W. Van Alstyne

Faculty Scholarship

This joint memorandum is submitted to the court hearing Dellums v. Bush. This amicus brief advocates that the President may not order American armed forces to make war without consultation with and approval by Congress. The brief also argues that the case is justiciable.

Shutting Down The Government, Alan L. Feld

Faculty Scholarship

Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.¹ To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.²

Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency …

What The Constitution Means By Executive Power, Charles J. Cooper, Orrin Hatch, Eugene V. Rowstow, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Presidential Influence On Congressional Appropriations Decisions, D.Roderick Kiewiet, Mathew D. Mccubbins

Faculty Scholarship

We investigate the extent to which possession of the veto allows the president to influence congressional decisions regarding regular annual appropriations legislation. The most important implication of our analysis is that the influence the veto conveys is asymmetrical: it allows the president to restrain Congress when he prefers to appropriate less to an agency than Congress does; it does not provide him an effective means of extracting higher appropriations from Congress when he prefers to spend more than it does. This asymmetry derives from constitutional limitations on the veto, in combination with the presence of a de facto reversionary expenditure …

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.

The President’S Powers As Commander-In-Chief Versus Congress’ War Power And Appropriations Power, Charles Bennett, Arthur B. Culvahouse Jr., Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Congress And The Executive: Who Calls The Shots For National Security? – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Professor Firmage's reaffirmation of the Framers' conception of a President who would wait for congressional instructions appeals to traditional values of democratic control and congressional primacy that have deep roots in our national consciousness. But this model of presidential passivity has some of the same strengths and weaknesses as the advocacy of chastity to solve today's problems of teenage pregnancy and sexually transmitted disease. The basic values may be sound, but when one moves from the assertion of those values to the identification of policy prescriptions, then it becomes clear that contemporary problems are too complex to be solved by …

The Role Of The President And Omb In Informal Rulemaking, Peter L. Strauss, Cass R. Sunstein

Faculty Scholarship

Regulatory reform has been a subject of frequent discussion in the last decade, especially in the context of presidential efforts to assert control over the rulemaking process. Presidents Nixon, Ford, Carter, and Reagan have all attempted to increase presidential authority over regulation. In particular, President Reagan has issued two executive orders that give the Office of Management and Budget (OMB) considerable power over the rulemaking activities of executive agencies.

In this article, we set forth our views on the role of presidential supervision in the regulatory process, with particular attention to the questions raised by the recent executive orders.

Separation Of Political Powers: Boundaries Or Balance, Alan L. Feld

Faculty Scholarship

One of the most significant structural elements of the United States Constitution divides the political power of the government between two discrete political institutions, the Congress and the President, in order to prevent concentration of the full power of the national government in one place. This governmental structure has posed a continuing dilemma of how to allow for the shared decisionmaking necessary to effective government while maintaining the independence of each political branch. As the United States Congress reaches its two hundredth anniversary, questions concerning the relationship between Congress and the President, for a substantial time thought by legal scholars …

Pardoning Power Of Article Ii Of The Constitution, The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.

Pardoning Power Of Article Ii Of The Constitution (Continued), The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.

President Nixon: Toughing It Out With The Law, William W. Van Alstyne

Faculty Scholarship

This paper examines President Nixon's handling of the Watergate scandal, arguing that Nixon's stance of "toughing it out with the law" was a common ploy used during his administration to extend the breadth of the issue in question. This expansion deflected attention away from the issue of the Constitutional limits on a president's power and was used to justify a broad spectrum of powers Nixon exercised during his presidency.

Presidential War-Making, Henry Paul Monaghan

Faculty Scholarship

The Vietnam "war" has convinced many persons that the president of the United States claims apparently unlimited power to commit this country to war. Not surprisingly, therefore, considerable interest has focused on the powers that inhere in the presidency. And many critics of the war – those who in other times and in other contexts might have been sympathetic to a spacious conception of presidential power – have concluded that the Vietnam conflict is not only a tragic error, but is the direct result of unconstitutional conduct by the president. I cannot accept this view; at bottom, it seems to …

Vice Presidential Succession: In Support Of The Bayh-Celler Plan , John D. Feerick

Faculty Scholarship

In the April, 1965, issue of the South Carolina Law Review there appeared an article by Professor George D. Haimbaugh, Jr., entitled "Vice Presidential Succession: A Criticism of the Bayh-Cellar [sic] Plan."' Professor Haimbaugh sought to demonstrate what he claimed was the "unreality" of certain arguments advanced in favor of the vice presidential succession feature of the proposed twenty-fifth amendment to the Constitution. The arguments to which he addressed himself were "that this constitutional change is urgently needed, that the presidential initiative is necessary to insure continuity of executive policy, and that the requirements of congressional ratification will secure a …

Problem Of Presidential Inability - It Must Be Solved Now, The, John D. Feerick

Faculty Scholarship

On August 27, 1787, John Dickinson of Delaware asked the Constitutional Convention these vital questions: "What is the extent of the term 'disability' and who is to be the judge of it?" 'His questions regarding the provision on executive succession were never answered. Today, one hundred and seventy-six years later, they remain unanswered. They have been revived from time to time, usually when a President has died or become disabled. Hundreds of answers have been offered. None has been found acceptable. Although concern about the problem of presidential inability had been aroused by the Eisenhower illnesses in 1955, 1956 and …

Executive Privilege In The Federal Courts, Paul Hardin Iii

Faculty Scholarship

No abstract provided.

Presidential Power And Aggression Abroad: A Constitutional Dilemma, William W. Schwarzer, Robert R. Wood

Faculty Scholarship

No abstract provided.