President/Executive Department Commons^™

The Auditor For The Auditors' Auditor: Accounting For The Unitary Executive In Free Enterprise Fund V. Public Company Accounting Oversight Board, Kelsey Elizabeth Stapler

Pepperdine Law Review

No abstract provided.

Hunger And U.S. Governmental Policies, Evangelical Advocacy: A Response To Global Poverty

Bibliographies

No abstract provided.

Guy Fawkes's Dangerous Remedy: The Unconstitutionality Of Government-Ordered Assassination Against U.S. Citizens And Its Implications For Due Process In America, 45 J. Marshall L. Rev. 1121 (2012), Emily Kendall

UIC Law Review

No abstract provided.

Emergency Powers Of The Executive: The President’S Authority When All Hell Breaks Loose, Joshua L. Friedman

Journal of Law and Health

Within the perspective of Hamilton‘s admonition against limiting executive authority, this Article endeavors to generally discuss the historical and recent separation of powers issues arising with an active executive branch. Part II gives a brief overview of executive powers and their limitations: first discussing what actions are strictly executive in character, and then presenting Congress‘ attempts to question the executive‘s emergency powers and addressing the Judicial branch‘s struggle with finding a balance between judicial oversight and political question doctrine. Part III reviews specifically enumerated powers of the executive in emergencies where executive action is justified by the constitution, such as …

Justifying Diversity In The Federal Judiciary, Carl W. Tobias

Law Faculty Publications

This Essay thus scrutinizes Obama’s judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer’s provocative solution. This response ultimately discusses some promising measures beyond Scherer’s recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses

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

All Faculty Scholarship

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, …

Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …

What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil

Michigan Journal of Environmental & Administrative Law

Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgating rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government.1 They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essential activities fill many law …

The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor

Michigan Journal of Environmental & Administrative Law

A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and …

Midnight Rulemaking And Congress, Nina A. Mendelson

Book Chapters

This chapter focuses on Congress, our most democratic federal institution. Congress is generally responsible for defining the authorities possessed by the administrative state, and congressional oversight is key to holding agencies accountable for their actions. Midnight rulemaking also has the potential to increase congressional engagement. Two commentators have recently argued that relative inattention from Congress can facilitate midnight rulemaking, because Congress may meet less frequently during the lame duck period and there is no “repeat player” relationship between the outgoing president and the Congress. To the contrary, however, Congress retains considerable formal power to respond to and override presidential decisions, …

"The Essence Of A Free Society": The Executive Powers Legacy Of Justice Stevens And The Future Of Foreign Affairs Deference, Dawn E. Johnsen

Articles by Maurer Faculty

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by …

The Impact Of The Obama Presidency On Civil Rights Enforcement In The United States, Joel Friedman

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

"By Some Other Means": Considering The Executive Role In Fostering Subnational Human Rights Compliance, Risa E. Kaufman

Human Rights Institute

The broad realization of human rights domestically requires strong partnership among all levels of government. Indeed, international and domestic law support an important role for state and local governments in implementing the United States’ human rights treaty commitments, with the federal government retaining ultimate responsibility. While the federal government’s responsibility is clear, its options for fostering and facilitating subnational compliance have not been fully explicated. United States’ human rights treaty ratification practices and recent Supreme Court jurisprudence primarily constrain the Executive’s ability to compel state and local compliance without congressional authorization. In the absence of such congressional action, the Executive …

The New Section 1202 Tax-Free Business Sale: Congress Rewards Small Businesses That Survived The Great Recession, Beckett G. Cantley

Fordham Journal of Corporate & Financial Law

On September 27, 2010, President Barack Obama signed the Creating Small Business Jobs Act of 2010 (“SBJA”) that contains a temporary amendment to Internal Revenue Code (“IRC”) § 1202. The amendment permits original shareholders of eligible corporation stock to sell the stock without being taxed on the sale. The temporary amendment initially only applied to certain stock acquired after the enactment of the SBJA and before January 1, 2011, but the amendment was extended on December 17, 2010 for another year ending January 1, 2012. With the impending sunset of the 15% capital gains rate at the end of 2012, …

Fdr And Chief Justice Hughes: The President, The Supreme Court, And The Epic Battle Over The New Deal, James F. Simon

Books

By the author of acclaimed books on the bitter clashes between Jefferson and Chief Justice Marshall on the shaping of the nation’s constitutional future, and between Lincoln and Chief Justice Taney over slavery, secession, and the presidential war powers. Roosevelt and Chief Justice Hughes's fight over the New Deal was the most critical struggle between an American president and a chief justice in the twentieth century.

The confrontation threatened the New Deal in the middle of the nation’s worst depression. The activist president bombarded the Democratic Congress with a fusillade of legislative remedies that shut down insolvent banks, regulated stocks, …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

Scholarly Works

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

The First Father: Perspectives On The President's Fatherhood Initiative, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This short article presents an analysis of the thirteen-year-old President's Fatherhood Initiative utilized by the executive branch to tackle the problem of absent fathers in America. It argues that this social policy attempts to recapture the economic incentives central to the controversial Moynihan Report of 1965, emphasizing patriarchal and classist solutions to America's family crisis. The programs instituted by the Fatherhood Initiative stigmatize black and brown fathers and fail to address underlying government policy issues that impact their ability to be present and financially supportive in their children's lives. The programs still emphasize the marriage dyad as a cure-all rather …

Executive Power And The Law Of Nations In The Washington Administration, Robert J. Reinstein

University of Richmond Law Review

In this issue's lead article, Professor Reinstein continueshis examination of the development of executive power over foreign affairs during the early history of the Republic. Re- cently, both legal scholars and the courts are looking to the

actions of the first administrationas a potentialprecedent onhow to construe the scope and source of the President's au- thority to determine and conduct the United States' foreign

policy. Last year, in an articlepublished in thisjournal,Pro-fessor Reinstein concluded that no originalistjustificationex-ists for a plenary executive recognitionpower. In this article,

Professor Reinstein expands this discussion through an original historical and jurisprudential account of the Neutrality …

Tax Court Appointments And Reappointments Improving The Process, Danshera Cords

University of Richmond Law Review

This article explores the problems with the appointment and reappointment process of judges to the United States Tax Court, particularly focusing on the recent politicization of the process. Until 1992, the process ensured the appoint-ment of only well-qualified judges to the Tax Court bench. However, beginning with the administrations of Presidents William J. Clinton and George W. Bush, the President infused politics into the nomination process, causing the process to slow and creating vacancies on the court. Such delays threaten the court's effectiveness and disrupt its operations. To solve this problem, the author endorses changing the statute to allow Tax …

Ten Years On: Military Justice And Civil Liberties In The Post-9/11 Era, Eugene R. Fidell

NYLS Law Review

No abstract provided.

Increased Tax Liability Awards After Eshelman: A Call For Expanded Acceptance Beyond The Realm Of Anti-Discrimination Statutes, Eirik Cheverud

NYLS Law Review

No abstract provided.

Waiving Goodbye To Nondisclosure Under Foia’S Exemption 4: The Scope And Applicability Of The Waiver Doctrine, Patrick Lightfoot

Catholic University Law Review

No abstract provided.

Beyond Foreign Policy: A Fresh Look At Cross-Cultural Negotiations And Dispute Resolution Based On The India-United States Nuclear Test Ban Negotiations, Sukhsimranjit Singh

Cardozo Journal of Conflict Resolution

This paper has three goals: first, to study the negotiation of CTBT from Indian and U.S. perspectives; second, to analyze the influence of culture on the processes and outcomes of nuclear negotiations; and third, to provide an approach that would have produced a better result in the CTBT negotiations, and which could be used with more success in future bilateral and multi-lateral negotiations. The approach and lessons from my analysis can also be applied towards other cross-cultural disputes, especially to those that involve national culture. I conclude that the CTBT negotiation between India and the U.S. (among other nations) was …

Judicial Review Of Constitutional Transitions: War And Peace And Other Sundry Matters, Rivka Weill

Vanderbilt Journal of Transnational Law

Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive's authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive's term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments' action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or …

The Presidential Apology: Lessons From Tricky Dick And Slick Willy, Megan Morris

CMC Senior Theses

The concept of an apologetic president has only recently emerged in the United States. All presidents have made mistakes, but only recently have Americans come to expect apologies from them. The development of an increasingly critical media has necessitated that future presidents hone the art of apologizing. This thesis extrapolates lessons in this skill from the apologies of Presidents Nixon and Clinton. Watergate and Lewinsky-gate were cover-up scandals that rocked the nation in the 1970s and '90s. Although the presidential misconduct in both cases were similar, the way each president opted to navigate his controversy differed dramatically. Both presidents initially …

Congress In Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Congress rarely participates in litigation about the meaning of federal law. By contrast, the executive branch joins in federal litigation on a regular basis as either a party or amicus curiae. Congress simply assumes that the president’s lawyers adequately represent its interests save in those rare instances when the two branches have a direct conflict. This Article questions that assumption.

The federal judiciary’s approach to statutory and constitutional interpretation diminishes Congress’s influence, often to the benefit of the executive branch. The rise of textualism, the canon of constitutional avoidance, the reliance on Chevron deference, and the courts’ reluctance to second-guess …

The Obama Justice Department's Merger Enforcement Record: An Armchair Reply To Baker And Shapiro, Daniel A. Crane

Articles

My recent Essay, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, examined the three major areas of antitrust enforcement—cartels, mergers, and civil non-merger—and argued that, contrary to some popular impressions, the Obama Justice Department has not “reinvigorated” antitrust enforcement. Jonathan Baker and Carl Shapiro have published a response, which focuses solely on merger enforcement. Baker and Shapiro’s argument that the Obama Justice Department actually did reinvigorate merger enforcement is unconvincing.

Should Mass Comments Count?, Nina A. Mendelson

Articles

I am grateful to the Michigan Journal of Environmental & Administrative Law for the opportunity to reply to “Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts,” a terrific article by Professor Cynthia Farina, Mary Newhart, and Josiah Heidt of the Cornell eRulemaking Institute (“CeRI”). Farina, Newhart, and Heidt’s continuing commitment to structuring public engagement in e-rulemaking, both through scholarship and CeRI’s Regulation Room project, is one of the most hopeful signs for the future of that process. In their Article, the authors are concerned with agency treatment of large volumes of public comments in rulemaking, an increasingly common …

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

Publications

No abstract provided.