President/Executive Department Commons^™

Attorney General Robert Jackson's Brief Encounter With The Notion Of Preclusive Presidential Power, William R. Casto

Pace Law Review

No abstract provided.

The Founders, Executive Power, And Military Intervention, Christopher A. Preble

Pace Law Review

No abstract provided.

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 …

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

All Faculty Scholarship

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 …

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Agency Hygiene, Nicholas Bagley

Articles

Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection.

Response To Akhil Reed Amar's Address On Applications And Implications Of The Twenty-Fifth Amendment, John D. Feerick

Faculty Scholarship

Life has taught those of us who have lived as long as I have that the seemingly impossible can happen and that we must be prepared to deal with the unimaginable on a moment's notice. In October 1963, I wrote an article for the Fordham Law Review in which I contemplated the need for such preparations should the unimaginable indeed strike: "The problem of presidential inability has now been generally forgotten by our national legislators as well as by the public. Since we have a young, able and healthy President, all indications are that the issue will remain dormant until …

Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore

Faculty Scholarship

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Faculty Scholarship

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president - let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever.

Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a "false" religion. Ironically, however, the Mormon church periodically intervenes in initiative and …

Governing The Presidential Nomination Commons, Brigham Daniels

Faculty Scholarship

States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also …

Climate Change And Institutional Competence, Mark Squillace

Publications

No abstract provided.

Worcester V. Georgia: A Breakdown In The Separation Of Powers, Matthew L. Sundquist

American Indian Law Review

No abstract provided.

The Making Of The Attorney General: John Mitchell And The Crimes Of Watergate Reconsidered, Gerald Caplan

McGeorge School of Law Scholarly Articles

No abstract provided.

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …