President/Executive Department Commons^™

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

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

Faculty Scholarship

No abstract provided.

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …

Manufactured Emergencies, Robert Tsai

Scholarly Articles in Law Reviews & Journals

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

The Trump Administration And Administrative Law, Peter L. Strauss

Faculty Scholarship

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law

Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …

Professional Responsibility As A Limitation On Executive Power, Melissa Mortazavi

Other Faculty Publications

No abstract provided.

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

Presidential Permitting For Pipelines: Constitutionality And Reviewability, Joan Campau

Michigan Journal of Environmental & Administrative Law

Federal oversight of cross-border pipelines occurs during the presidential permitting process. Pursuant to Executive Order 13337, the Department of State is authorized to review applications and grant permits to projects that “serve the national interest.” Scholars and litigants have questioned the constitutionality of this process and reviewability under the Administrative Procedure Act (“APA”). This Note argues that the permitting process is constitutional and derives legitimacy from both the executive powers explicitly enumerated in the Constitution as well as an implicit sanction from the legislative branch. Further, this Note argues that APA review is appropriate for at least one component of …

Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.

The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim

Cornell Law Review

This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether …

Dismantling Monuments, Richard Henry Seamon

Articles

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 under the …

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this …

Trade, Redistribution, And The Imperial Presidency, Timothy Meyer

Faculty Scholarship

No abstract provided.

Delegation Enforcement By State Attorneys General, Jonathan Shaub

Law Faculty Scholarly Articles

State attorneys general have taken on an increasingly active role in challenging the actions of the federal government, and, in particular, the actions of the President. During the Obama Administration, state attorneys general began suing the federal government at an increasing rate, and these actions resulted in some of the most consequential judicial decisions of the time period—as both a matter of judicial precedent and a matter of policy impact. State-initiated action against the Obama Administration resulted in a new doctrine preventing state coercion, the implications of which are only starting to be recognized. It also resulted in court-ordered cessation …

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

Law Faculty Publications

The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's …

Text Of Solicitor Opinions And A Presidential Letter Regarding National Monuments And The Antiquities Act Of 1906, Mark Squillace

Research Data

These five full-text documents are cited in Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473 (2003), available at http://scholar.law.colorado.edu/articles/508; and/or Mark Squillace, Eric Biber, Nicholas S. Bryner & Sean B. Hecht, Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 Va. L. Rev. Online 55 (2017), http://www.virginialawreview.org/sites/virginialawreview.org/files/Hecht%20PDF.pdf:

• U.S. Department of the Interior, Office of the Solicitor, Opinion of Apr. 20, 1915 (cited in Opinion of January 30, 1935, M-27657).

• U.S. Department of the Interior, Office of the Solicitor, Opinion of June 3, 1924, M-12501, M-12529 (cited …

The Trump Presidency And The Press, John M. Greabe

Law Faculty Scholarship

[Excerpt] "It is not difficult to understand why presidents frequently voice frustration with the press. Imagine being subjected to critical analysis 24/7 by reporters, bloggers and pundits who often lack complete and accurate information but face competitive pressure to publish quickly."

Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …

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 …

Category Errors And Executive Power, Jonathan H. Adler

Faculty Publications

The purpose of this brief essay is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions—where the President’s inherent authority to exercise prosecutorial discretion applies—and what sorts of actions cannot. Specifically, this essay seeks to explain why some particularly controversial actions—such as the Administration’s decision to delay the so-called employer mandate imposed by the Affordable Care Act (ACA) and to “tailor” the application of federal regulations governing greenhouse gas emissions under the Clean Air Act …

Feminist-In-Chief? Examining President Obama's Executive Orders On Women's Rights Issues, Mary Pat Treuthart

Chicago-Kent Law Review

This article focuses on President Obama’s use of executive orders in various areas of women’s rights issues including the empowerment of women, gender-based violence, reproductive rights, and employment. As scholars of the American presidency have noted, executive orders can be used either as strategic tools to short-circuit legislative gridlock or to underscore and complement presidential policy measures pending in Congress. Executive orders can also serve to promote projects of special interest groups. Finally, knowing that their directives can be powerfully symbolic, presidents can be particularly effective in the use of executive action to underscore the gulf between the Democratic Party …

Presidential Legitimacy Through The Anti-Discrimination Lens, Catherine Y. Kim

Chicago-Kent Law Review

The Obama administration’s deferred action programs granting temporary relief from deportation to undocumented immigrants have focused attention to questions regarding the legitimacy of presidential lawmaking. Immigration, though, is not the only context in which the president has exercised policymaking authority. This essay examines parallel instances of executive lawmaking in the anti-discrimination area. Presidential policies relating to workplace discrimination, environmental justice, and affirmative action share some of the key features troubling critics of deferred action yet have been spared from serious constitutional challenge. These examples underscore the unique challenges to assessing the validity of actions targeting traditionally disenfranchised groups—be they noncitizens, …

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

The Dependent Origins Of Independent Agencies: The Interstate Commerce Commission, The Tenure Of Office Act, And The Rise Of Modern Campaign Finance, Jed Handelsman Shugerman

Faculty Scholarship

Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control.

The modern executive's design of unitary presidential control over most offices, alongside "independent" regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers and ending the Senate's power to protect those officers. …

Reverse Nullification And Executive Discretion, Michael T. Morley

Faculty Scholarship

No abstract provided.

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.