President/Executive Department Commons^™

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …

Perfecting Singapore’S System Of Political Governance: Privileging Elites In The Quest For Good Governance, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

This chapter argues that the office of the Elected President is best understood as an elite institution with eligibility restricted to a select group by a stringent set of criteria for hopefuls from the public and private sectors. The Singapore Constitution provides the Elected President with executive and legislative powers. Since independence in 1965, Singapore has sought to constitutionally engineer a political system that meets its unique needs and aspirations. Any theory of responsible government, undergirded by the separation of powers, will entail some measure of both conflict and cooperation, whether one or the other dominates. Given the particularistic neo-Confucian …

The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas

Georgetown Law Faculty Publications and Other Works

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them.

Law School News: Tough Talk On Asylum 11/22/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

New Homeland Security Asylum Rule Allows Removal To Central American Countries That Have Signed Agreements With The U.S., Peter Margulies

Law Faculty Scholarship

No abstract provided.

Filling The New York Federal District Court Vacancies, Carl Tobias

Washington and Lee Law Review Online

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

Judge Issues Temporary Restraining Order Against Proclamation Barring Uninsured Immigrants, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Making The War Colleges Better, Richard A. Lacquement Jr

The US Army War College Quarterly: Parameters

No abstract provided.

Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton

Elisabeth Haub School of Law Faculty Publications

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that …

Rescinding Inclusion In The Administrative State: Adjudicating Daca, The Census, And The Military's Transgender Policy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Lawyers Weekly Newsmaker Reception : November 20, 2019, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

"When The President Does It": Why Congress Should Take The Lead In Investigations Of Executive Wrongdoing, Andrew B. Pardue

William & Mary Law Review

Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: “Well, when the President does it, that means it is not illegal.” A majority of Americans disagreed with the former President’s assessment. But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms—all differing in their independence …

Dismantling Monuments, Richard H. Seamon

Florida Law Review

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 underthe Antiquities …

President Trump Bars Uninsured Immigrants From The U.S., Peter Margulies

Law Faculty Scholarship

No abstract provided.

The “National Security” Of Nations: President Trump’S Pretextual Tariff Rationale And How To Overcome It, Jacob Ely

Cardozo International & Comparative Law Review

The note argues that President Trump's use of Section 232 of the Trade Expansion Act to impose tariffs on steel, aluminum, and automobiles under the pretext of national security constitutes an abuse of executive power. It contends that this action undermines the constitutional authority of Congress to regulate trade and tariffs, raising significant concerns about the separation of powers and the potential for future presidential overreach. The note advocates for legislative reforms to reclaim congressional oversight and ensure that national security justifications for tariffs are genuine and narrowly defined.

Developing A Law School Course On Presidential Impeachment, Gregory S. Crespi

SMU Law Review Forum

This short essay discusses my motivation for and the process that I went through over the past two years developing a law school course on Presidential Impeachment and related topics. I recommend that those law school faculty members who may have only a modest constitutional law background, but who feel as I do that more sustained discussion of the questions that would be presented by an attempt to remove President Trump from office through impeachment are called for, consider also developing and offering such a course.

I found that through reading a few accessible books and supervising a handful of …

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen Pita Loor

Faculty Scholarship

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives — and their emergency management law enforcement actors — when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? …

Presidential Responses To Protest: Lessons Jefferson Davis Never Learned, Ashlee Paxton-Turner

West Virginia Law Review

No abstract provided.

Interpreting Emoluments Today: The Framers’ Intent And The “Present” Problem, Bianca Spinosa

Maryland Law Review

No abstract provided.

"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal

Indiana Journal of Global Legal Studies

President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …

Cybersecurity Paradigm Shift: The Risks Of Net Neutrality Repeal To Energy Reliability, Public Safety, And Climate Change Solutions, Catherine J.K Sandoval

San Diego Journal of Climate & Energy Law

This Article contends that the Federal Communications Commission’s (FCC) January 2018 repeal of net neutrality rules created a “zero-day” cybersecurity vulnerability for the energy sector and other criti¬¬¬cal infrastructure. “A zero-day cybersecurity vulnerability is a previously unknown flaw in a computer program that exposes the program to external manipulation.” The flaw may also reside in compromised hardware that creates a “back door” into the internet-connected device. This Article argues that cybersecurity has been primarily viewed from a “hacker paradigm” that obscures systemic threats an Internet Service Provider (ISP) can create to energy reliability and cybersecurity through paid priority and other …

The Fiduciary Obligations Of Public Officials, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

At various levels of government, the conduct of public officials is often regulated by ethical standards laid down by legislative enactments, such as federal or state statutes or municipal ordinances. These rules of government ethics are important landmarks in the field of law that defines the legal and ethical obligations of public officials. Such provisions can form the basis for the kinds of government ethics training that helps to minimize wrongful conduct by public servants and reduces the risk that the performance of official duties will be clouded by appearances of impropriety. Codified government ethics rules also frequently provide mechanisms …

Speech, Intent, And The President, Katherine Shaw

Cornell Law Review

Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law-from equal protection and due process to the First Amendment's Free Exercise and Establishment Clauses, from the Eighth Amendment to the Dormant Commerce Clause, and in statutory interpretation and administrative law cases across a range of domains-assessments of the intent of government actors are ubiquitous in our law.

But whose intent matters to courts evaluating the meaning or lawfulness of government action? When it comes to statutes, forests have been felled debating the place of legislative intent. But, although the …

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Concerns About Ice Detainee Treatment And Care At Four Detention Facilities, John V. Kelly

United States Department of Homeland Security

In response to concerns raised by immigrant rights groups and complaints to the Office of Inspector General (OIG) Hotline about conditions for detainees held in U.S. Immigration and Customs Enforcement (ICE) custody, we conducted unannounced inspections of four detention facilities to evaluate their compliance with ICE detention standards.

Overall, our inspections of four detention facilities revealed violations of ICE’s 2011 Performance-Based National Detention Standards, which set requirements for facilities housing detainees. This report summarizes findings on our latest round of unannounced inspections at four detention facilities housing ICE detainees. Although the conditions varied among the facilities and not every problem …

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …