President/Executive Department Commons^™

The Line-Item Veto: The Best Response When Congress Passes One Spending “Bill” A Year, L. Gordon Crovitz

Pepperdine Law Review

No abstract provided.

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, …

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 …

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.

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 …

Recognition: A Case Study On The Original Understanding Of Executive Power, Robert J. Reinstein

University of Richmond Law Review

No abstract provided.

Choosing Justices: How Presidents Decide, Joel K. Goldstein

All Faculty Scholarship

Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

The Future Of Detainees In The Global War On Terror: A U.S. Policy Perspective, Saxby Chamblis

University of Richmond Law Review

No abstract provided.

The President, Congress And The Security Council: Counterterrorism And The Use Of Force Through The Internationalist Lens, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

This symposium is focused on the powers of the U.S. presidency, a topic that typically implies questions of constitutional law. More narrowly, the topic of presidential powers in the area of counterterrorism typically raises questions of how the Constitution addresses the shared war powers of the President and Congress. U.S. legal scholars have generally not framed the question of presidential power to use force against transnational terrorist groups as one of international law or international institutions. Rather, the separation of powers question has focused on historical and functional views of the President's war powers and whether and to what …

Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss

Faculty Scholarship

In the wake of the Enron and WorldCom accounting scandals, Congress created the Public Company Accounting Oversight Board (“PCAOB”) under the aegis of the Securities and Exchange Commission (“SEC”), with President Bush’s support. Its purpose was to replace deficient accounting industry self-regulation with effective external regulation. The choices it made in doing so engendered passionate arguments about constitutionally necessary presidential authority and separation of powers. These divided the D.C. Circuit 2-1 and will be rehearsed before the Supreme Court in the coming weeks. President Bush’s administration defended those choices; Judge Rogers, writing for the majority, found no valid constitutional objection …

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …

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. …

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Scholarly Articles in Law Reviews & Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

The Scope Of Executive Power In The Twenty-First Century: An Introduction, Robert D. Sloane

Faculty Scholarship

This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of …

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai

Faculty Scholarship

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

A Wolf In Sheep’S Clothing: The Unilateral Executive And The Separation Of Powers, Thomas J. Cleary

The University of New Hampshire Law Review

[Excerpt] “The United States Constitution vests all executive powers in a president. This is the unitary executive theory. By virtue of this, many believe the president is vested with the power to act unilaterally. This is the unilateral executive theory. However, the unilateral executive portends more than action. In reality, the unilateral executive theory provides an opportunity to implement a unilateral agenda. Thus, the aim of this paper is to consider executive power, the separation of powers, and the unilateral executive theory to determine if presidential power under the separation of powers doctrine is actually “a wolf in sheep’s clothing.” …

Litigating Presidential Signing Statements, Michele E. Gilman

All Faculty Scholarship

In response to President George W. Bush's aggressive use of presidential signing statements, several members of Congress as well as a prominent Taskforce of the American Bar Association have proposed legislation to provide for judicial review of signing statements. These critics assert that the President must veto legislation with which he disagrees, rather than use signing statements to refuse to enforce statutes that he signs into law. This article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing to raise such a challenge. Congress might be …

Saving Special Places: Trends And Challenges With Protecting Public Lands [Outline], Robert B. Keiter

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

7 pages.

Includes bibliographical references

"Robert B. Keiter, Wallace Stegner Professor of Law, University of Utah, S.J. Quinney College of Law"

If At First You Don't Succeed, Sign An Executive Order: President Bush And The Expansion Of Charitable Choice, Michele E. Gilman

All Faculty Scholarship

This article analyzes whether President Bush's charitable choice executive orders, which permit religious organizations to apply for federal funds to deliver social services, are a permissible exercise of presidential power. Although Congress has enacted charitable choice provisions in some major statutes, including the 1996 welfare reform act, it debated but did not extend charitable choice throughout the entire federal human services bureaucracy, as do the President's executive orders. The core question the article examines is whether President Bush's charitable choice executive orders constitute permissible gap-filling of ambiguous statutes under the Chevron doctrine or impermissible exercises of executive lawmaking under Youngstown …

Faithfully Executing The Laws: Internal Legal Constraints On Executive Power, Dawn E. Johnsen

Articles by Maurer Faculty

Since September 11, 2001 the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise-unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency. Debate has raged about the details of desirable external checks on presidential excesses, with emphasis appropriately on the U.S. Congress and the courts. Yet an essential internal source of constraint is often …

Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss

Faculty Scholarship

All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of …

Slides: The Monumental Legacy Of The Antiquities Act Of 1906: The Rainbow Bridge National Monument In Context, Mark Squillace

Celebrating the Centennial of the Antiquities Act (October 9)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Antiquities Act Monuments: The Elgin Marbles Of Our Public Lands?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

13 pages.

Includes bibliographical references

Slides: The Centennial Of The Antiquities Act: A Cause For Celebration?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

Presenter: Professor James R. Rasband, Brigham Young University School of Law

20 slides

Congressional Administration, Jack M. Beermann

Faculty Scholarship

In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …

Executive Power And The Public Lands, Harold H. Bruff

Publications

No abstract provided.

The Legacy Of The Bush Ii Administration In Natural Resources: A Work In Progress, David H. Getches

Publications

No abstract provided.