President/Executive Department Commons^™

The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Faculty Scholarship

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

Publications

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

Resolving The Alj Quandary, Kent Barnett

Journal of the National Association of Administrative Law Judiciary

Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …

Interpretation Catalysts And Executive Branch Legal Decisionmaking, Rebecca Ingber

Faculty Scholarship

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise …

Proposed Model Act Creating A State Central Hearing Agency (Office Of Administrative Hearings), Board Of Governors Of The National Association Of Administrative Law Judges

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Administrative Judiciary's Independence Myth, James E. Moliterno

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Louisiana's Division Of Administrative Law: An Independent Administrative Hearings Tribunal , Ann Wise

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

Pepperdine Law Review

No abstract provided.

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …

Executive Power And The Public Lands, Harold H. Bruff

Publications

No abstract provided.

Settling The Wilderness, Sarah Krakoff

Publications

No abstract provided.

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more …

Introduction, Harold H. Bruff

Publications

As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

Book Review, Scott Hogan

RISK: Health, Safety & Environment (1990-2002)

Review of: ROBERT A. SHANLEY, PRESIDENTIAL INFLUENCE AND ENVIRONMENTAL POLICY. (Greenwood Press, 1992) [163 pp.] Abbreviations, acknowledgements, index, introduction, notes, selected bibliography. LC 92-15584; ISBN 0-313-25883-X. [$45.00 cloth. 88 Post Road West; Westport CT 06881.]

Administrative Law In A Global Era: Progress, Deregulatory Change, And The Rise Of The Administrative Presidency, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

Publications

No abstract provided.

Presidential Power And Administrative Rulemaking, Harold H. Bruff

Publications

No abstract provided.

Book Review, Charles F. Wilkinson

Publications

No abstract provided.

Congressional Control Of Administrative Regulation: A Study Of Legislative Vetoes, Harold H. Bruff, Ernest Gellhorn

Publications

Several administrative programs contain provisions allowing Congress to veto agency rules, and there is now a bill before Congress to extend this veto power to all agency rulemaking. In this Article, Professor Bruff and Dean Gellhorn analyze the histories of five federal programs subject to the legislative veto to determine the effect of the veto on the rulemaking process and on the relationships between the branches of government. Extrapolating from this practical experience, they suggest that a general legislative veto is unlikely to increase the overall efficiency of the administrative process, may impede the achievement of reasoned decisionmaking based on …

Presidential Exemption From Mandatory Retirement Of Members Of The Independent Regulatory Commissions, Harold H. Bruff

Publications

No abstract provided.

Book Review. The March Of The Bureaus, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.