President/Executive Department Commons^™

The President's Enforcement Power, Kate Andrias

Articles

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …

Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway

Michigan Law Review

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

A Presidency Upstaged: The Public Leadership Of George Bush, Joseph V. Hughes Jr. And Holly O. Hughes, Lori Cox Han

Political Science Faculty Books and Book Chapters

A president who distances himself from stagecraft will find himself upstaged. George H. W. Bush sought to “stay the course” in terms of policy while distancing himself from the public relations strategies employed during the administration of Ronald Reagan, his predecessor. But Bush discovered during his one-term presidency that a strategy of policy continuity coupled with mediocre communication skills “does not make for a strong public image as an effective and active leader in the White House", as author and scholar Lori Cox Han demonstrates in A Presidency Upstaged.

Incorporating extensive archival research from the George Bush Presidential Library at …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Once More Unto The Breach: American War Power And A Second Legislative Attempt To Ensure Congressional Input, Jonathan T. Menitove

University of Michigan Journal of Law Reform

Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to …

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

An Agenda For The Obama Administration On Gender Equality: Lessons From Abroad, Adrien K. Wing, Samuel P. Nielson

Michigan Law Review First Impressions

President Barack Obama came into office with a wealth of good will after winning the historic 2008 presidential election to become the first African-American commander-in-chief. Among the many daunting issues we hope he will tackle is one that Abigail Adams mentioned to her husband John in 1776: remember the ladies. How should our President and his new administration affect social justice for women?

Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson

Articles

The United States’s presidential transition period is too long. Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’” In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows. One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,” and another noted that “everyone . . . ignores the actions of the lame duck.”

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji

Michigan Law Review First Impressions

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.

Exploring The Limits Of Executive Civil Rights Policymaking, Stephen Plass

Oklahoma Law Review

No abstract provided.

Sources Of Presidential Papers And Documents On The Web, Barbara H. Garavaglia

Articles

The President of the United States and his staff produce a large volume of documents and other materials. These documents fall into two major categories. The first category is comprised of archival presidential materials such as papers, documents, visual and audio records of the presidency, and the personal papers of the president, his family, associates, and friends. This category of presidential material is primarily of interest to historians, political scientists, and other scholars because it provides "a comprehensive view of our Presidents and... [U.S.] history."1 The second category is comprised of presidential documents with legal effect used by the president …

Agenda: Celebrating The Centennial Of The Antiquities Act, University Of Colorado Boulder. Natural Resources Law Center, University Of Colorado Boulder. Center Of The American West

Celebrating the Centennial of the Antiquities Act (October 9)

For 100 years, the Antiquities Act has been used by nearly every President in the 20th century to set aside and protect lands threatened with privatization and development. The list of lands first protected under the Antiquities Act – and that might never have been protected without it – is truly remarkable. Many of our most treasured national parks including the Grand Canyon, Olympic, Zion, Arches, Glacier Bay, and Acadia, began as national monuments. All told, Presidents have issued 123 proclamations setting aside millions of acres of land under the Antiquities Act.

The Natural Resources Law Center and the Center …

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

Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg

Michigan Journal of International Law

This Reply proceeds as follows. Part I outlines the argument of the Nzelibe and Yoo paper. Part II considers their principal-agent analysis in the context of the American political system. Part III elaborates on the "democratic peace" literature, demonstrating that it does not support the conclusions that they draw. Part IV addresses the argument that we are in a new strategic situation, such that old rules ought not apply. Part V concludes.

The President Over The Public: The Plebiscitary Presidency At Center Stage, Lori Cox Han

Political Science Faculty Books and Book Chapters

"In this chapter, I will address the question of the usefulness of the public presidency in the current political environment (that is, can a president’s communication strategy make a difference in terms of what he achieves), as well as the constitutional danger, if any, posed by a president’s attempt at public leadership. Has the public presidency, and its focus on the public aspects of the office, thrown the constitutional balance of power between the three branches out of balance? Does the president really gain political power within the constitutional framework of our government if he is a skilled and effective …

The Rose Garden Strategy Revisited: How Presidents Use Public Activities, Lori Cox Han

Political Science Faculty Books and Book Chapters

"The overall goal of this study was to determine how often, and in which formats, presidents choose to go public, and if differences exist in that pattern during their reelection efforts. This chapter also considers the major developments within the public presidency during the twentieth century, and how those developments contributed to the patterns in public activities that have emerged for Presidents Hoover through Clinton."

Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …

Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty

Michigan Law Review

Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. It holds no less true for modern constitutions, including the Constitution of the United States. Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that …

White House Inheritors And Climbers: Presidential Kin, Class, And Performance, 1789–2002, Garrison Nelson

New England Journal of Public Policy

The 2000 presidential election that pitted Republican Texas Governor George W. Bush, the son of a former president against Democratic Vice President Albert Gore, Jr., the son of a former U.S. senator was a dramatic reminder that presidential politics in the United States is not an equal opportunity employer. In this article retrospective assessments of presidential performance are related to social class and kinship connections for the forty-two presidents from George Washington to George W. Bush. Three separate evaluations of presidential performance were used: the 1989 Murray-Blessing Survey; the widely cited 1996 New York Times poll prepared by Arthur M. …

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

Articles

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …

The Legislator-In-Chief, Vasan Kesavan, J. Gregory Sidak

William & Mary Law Review

The State of the Union and Recommendation Clauses of Article II, Section 3provide that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient. "Those thirty-one words envision the President as the lead active participant in the embryonic stages of the making of laws. Eight separate principles animate the President's legislative duties and powers before the presentment process. When the State of the Union and Recommendation Clauses are seen to have this textual and analytical subtlety, they reveal …

The Public And Private Lives Of Presidents, Neal Kumar Katyal

William & Mary Bill of Rights Journal

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid. He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is office twenty-four hours a day. He argues that this special constitutional status puts …

Restoring The Balance Of Power: Impeachment And The Twenty-Second Amendment, James Randolph Peck

William & Mary Bill of Rights Journal

The recent proceedings against President William Jefferson Clinton brought Congress' impeachment power into the national spotlight. In the public debate on when it is appropriate for Congress to exercise this power, it is important to consider that the Framers gave this power to the legislature principally as a tool to maintain a balance of power between the legislative and executive branches of the federal government. Examining the debates at the Constitutional Convention, this Note details how the Framers deliberately sought to balance the President's term in office and eligibility for re-election with the Congress' impeachment power in order to prevent …

The Special Constitutional Structure Of The Federal Impeachment Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Catastrophic Terrorism- Thinking Fearfully, Acting Legally, Barry Kellman

Michigan Journal of International Law

The time has come to move beyond howls of alarm to a public discussion of what policies should be adopted or reformed. That discussion should proceed even as crucial questions remain only partially answerable: How realistic is the possibility of catastrophic terrorism? How easy is it to make a catastrophic device that actually works? Why would any person or group want to kill hundreds, thousands, or tens of thousands of innocent victims?

The Lessons Of Impeachment History, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Picking Federal Judges: A Mysterious Alchemy, Michael D. Schattman

Michigan Law Review

I have twice been nominated to the federal bench by President Clinton. The first nomination, in December 1995, lapsed at the end of the 104th Congress. I was renominated in March 1997. I have never had a hearing and never had a letter from the Senate Judiciary Committee requesting additional information. In 1995 and again in 1997 the White House precleared my nomination with my two home-state Republican senators. Originally, I was nominated before the scheduled retirement date of the judge I was named to replace, which gives knowledgeable readers an idea of the lack of controversy surrounding my appointment. …