President/Executive Department Commons^™

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis

Faculty Scholarship

This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …

Separation Of Powers And Unilateral Executive Action: The Constitutionality Of President Clinton's Mexican Loan Initiative, Kimberly D. Chapman

Georgia Journal of International & Comparative Law

No abstract provided.

Executive Power And Regional Climate Change Agreements, Conor J. Walline

Pace Environmental Law Review

This Article explores the potential for such agreements to address climate change on a regional level by analyzing the parallels between the agreements, the nature and limits of the executive power used to create them, and the scope of enforcement available under them. Section II briefly examines the present state of climate warming and its attendant impacts, while Section III highlights the relative failure of current national and international approaches to mitigating climate change. Section IV focuses on the recent rise of environmental regional agreements in the United States, specifically those agreements to which the State of New York has …

The Struggle Over Executive Appointments, John C. Roberts

Utah Law Review

This Article argues that the long-term struggle between the President and the Senate over executive appointments has now reached a crisis and that we may be approaching a point where the President’s crucial duty to take care that the laws be faithfully executed is significantly impaired. During the Obama administration, an unprecedented number of judgeships and executive branch positions remain unfilled, threatening the smooth functioning of government at an especially demanding time.

Actually We Should Wait: Evaluating The Obama Administration’S Commitment To Unilateral Executive-Branch Action, William P. Marshall

Utah Law Review

This Article agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good.9 It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

William E. Nelson's The Roots Of American Bureaucracy And The Resuscitation Of The Early American State, Gautham Rao

Chicago-Kent Law Review

In 1983, William E. Nelson published The Roots of American Bureaucracy, 1830–1900. Nelson traced the somewhat unlikely emergence and victory of the bureaucratic model in American political and legal thought. This article summarizes the book’s argument and describes its reception. It also seeks to assess the scholarly legacy of The Roots of American Bureaucracy. I argue that the book was ahead of its time because it contradicted prevailing scholarly trends in identifying a significant federal state in nineteenth-century America. In particular, during the past two decades, historians and political scientists have built on Nelson’s insights to develop a consensus about …

The Transformative Twelfth Amendment, Joshua D. Hawley

Faculty Publications

This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power …

Law Matters, Even To The Executive, Julian Davis Mortenson

Michigan Law Review

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at …

Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof

Michigan Law Review

The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff

Publications

Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard …

Legislative Diplomacy, Ryan M. Scoville

Michigan Law Review

A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations (“CODELs”) to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since …

A Time For Presidential Power? War Time And The Constrained Executive, David Levine

Michigan Law Review

Between 2002 and 2008 I served as an intelligence officer in the U.S. Air Force. Though I had been deployed overseas several times, my primary place of duty was in the United States. When I landed at Baghdad International Airport in June 2006, however, several things immediately changed for me as a result of military regulations. I had to carry my sidearm and dog tags at all times. I could not eat anywhere other than a U.S. military installation. I could not drink alcohol. My pay was a bit higher. Personally, I was more vigilant, more aware of my surroundings. …

Executive Power, The Rule Of Law And The First Obama Administration, Peter M. Shane

Schmooze 'tickets'

No abstract provided.

Long Wars And The Constitution, Stephen M. Griffin

Schmooze 'tickets'

No abstract provided.

The Law: Bush, Cheney, And The Separation Of Powers: A Lasting Legal Legacy?, Gordon Silverstein

Schmooze 'tickets'

No abstract provided.

The Dangerous Fantasy Of Lincoln: Framing Executive Power As Presidential Mastery, Julie Novkov

Schmooze 'tickets'

No abstract provided.

Passive-Aggressive Executive Power, Corinna Barrett Lain

Schmooze 'tickets'

No abstract provided.

The Imbecilic Executive, Saikrishna Prakash

Schmooze 'tickets'

No abstract provided.

The Commerce Clause And Executive Power: Exploring Nascent Individual Rights In National Federation Of Independent Business V. Sebelius, Ronald Kahn

Maryland Law Review

No abstract provided.

The Court’S Decisive Hand Shapes The Executive’S Foreign Affairs Policymaking Power, Kimberley L. Fletcher

Maryland Law Review

No abstract provided.

Obama Administration’S Non-Defense Of Doma And Executive Duty To Represent, Kathleen Tipler

Maryland Law Review

No abstract provided.

Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …

Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton

Michigan Law Review First Impressions

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to …

The Roberts Court & Executive Power, Jeffrey Rosen

Pepperdine Law Review

No abstract provided.

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.

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 …

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

Presidents, Preemption, And The States, Michele E. Gilman

All Faculty Scholarship

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a …