President/Executive Department Commons^™

Dog That Rarely Barks: Why The Courts Won't Resolve The War Powers Debate, Jonathan L. Entin

Faculty Publications

There is a certain irony about the stimulating papers by Louis Fisher and Peter Shane: the political scientist, Fisher, makes a normative constitutional argument of the sort typically made by legal scholars; the legal scholar, Shane, makes an institutional and policy analysis of the sort typically made by political scientists. Nevertheless, these papers share a common theme: that the President does not and should not have unfettered or unilateral power in the war-making area. Both also focus on war powers rather than other aspects of foreign affairs such as treaties and executive agreements, but their approaches have implications for those …

Synecdoche And The Presidency: The Removal Power As Symbol, Jonathan L. Entin

Faculty Publications

In this brief comment I want to explore the reasons for this phenomenon. I will illustrate my point by reference to the seminal case of Myers v. United States, which is not discussed in the symposium contribution by Calabresi and Yoo not surprising, because that case was decided well after the period upon which they focus here. After that, I will suggest some reasons why the removal power, despite its limited substantive importance, retains its grip on the academic and political imagination.

Ending Welfare, Leaving The Poor To Face New Risk, Jeffrey S. Lehman, Sheldon Danziger

Cornell Law Faculty Publications

No abstract provided.

Congressional Reviews Of Agency Regulations, Daniel Cohen, Peter L. Strauss

Faculty Scholarship

On March 29, 1996, President Clinton signed Public Law 104-121, the Contract with America Advancement Act of 1996. Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 ("Act"), among other things, added a new chapter 8 to Title 5 of the United States Code. Chapter 8 requires congressional review of agency regulations. Beginning March 29, 1996, all federal agencies, including independent agencies, are required to submit each final and interim final rule for review by Congress and to the General Accounting Office (GAO) before the final or interim final rule can take effect (hereinafter final and interim final …

Toward The Enforcement Of Universal Human Rights Through Abrogation Of The Rule Of Non-Inquiry In Extradition, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Can We Indict A Sitting President?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

This symposium addresses the difficult question of whether a President can be criminally prosecuted while still in office or whether indictment and prosecution must await his leaving. The question is difficult because the text of the Constitution gives us some hints but no dispositive answers. At first reading, Section 3 of Article I seems to suggest that impeachment must precede any criminal prosecution: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless …

The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson

Publications

No abstract provided.

Federal Reserve: History, Purposes And Functions - An Analysis, Mukunda Lakshamanarao

LLM Theses and Essays

On December 23, 1913, President Woodrow Wilson signed into law the Federal Reserve Act. With this law, Congress established a central banking system which would enable the world’s most powerful industrial nation to manage its money and credit more effectively than ever before. The political and legislative struggle to create the Federal Reserve System was long and often bitter, and this final product in 1913 was the result of a carefully crafted and somewhat tenuous political compromise between national and regional powers. Since its founding, the Federal Reserve System has evolved to meet the needs of a changing financial system …

1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Rulemaking (Testimony), David Schoenbrod

Other Publications

This post originally appeared on https://www.cato.org/publications/congressional-testimony/administrative-rulemaking

The Fda And The Biotechnology Indutry: A Symbiotic Relationship?, Tanya E. Karwaki

Washington Law Review

Food and Drug Administration (FDA) regulatory reform has become a controversial, politically charged issue of particular significance to the biotechnology industry. The fundamental factors driving the movement for FDA reform include the prohibitive costs associated with developing a product approved by the FDA and the pressure to participate in the international harmonization of biotechnology product regulations. Two recent Congressional bills, Senator Kassebaum's Food and Drug Administration Performance and Accountability Act of 1995, and Representative Burr's Drug and Biological Products Reform Act of 1996 provide vehicles for analyzing the direction and goals of FDA reform as they apply specifically to the …

Skunk In An Onion Patch Buchanan Threatens Dole If He Doesn't Shut Up-And America If He Does, Kenneth Lasson

All Faculty Scholarship

Regardless of his finish in the primaries, Mr. Buchanan is determined to be heard from at the Republican National Convention in late summer. Mr. [Bob Dole] would like his endorsement for the votes it would provide, but cannot be serious about hoping "that Pat Buchanan would find it in his heart as a good Republican to join forces and close ranks." Can good Republicans be outright bigots? Does Mr. Dole have a political death wish?

What's in Mr. Buchanan's heart is the cause. "We'll go forward," he vowed on national television, "fighting for the cause." But the purity of the …

Executive-Branch Rulemaking And Dispute Settlement In The World Trade Organization: A Proposal To Increase Public Participation, Aubry D. Smith

Michigan Law Review

This Note argues that, because the Executive Branch increasingly will be promulgating domestic regulatory rules intended to comply with the rules of the world-trading system, it is necessary to increase formal oversight of the Executive Branch's role in that context. Part I argues that the United States' participation in the WTO implies a substantial increase in the impact of foreign policy on domestic policy. Part II points out a loophole in Congress's attempt to compensate for this increase by installing various devices to ensure political oversight of the Executive: the Executive Branch is subject, under the Uruguay Round Agreements Act …

Foreign Policy: Can The President Act Alone?Gaps And Conflicts In The Constitutional Grants Of Power, Dana C. Makielski

Richmond Journal of Law and the Public Interest

The Framers did not intend the Constitution to be an all-inclusive "bill of lading," for we cannot forget John Marshall's famous admonition "that it is a constitution we are expounding."' Nonetheless, there are many large gaps and conflicts in the allocation of power among the three branches, most in the area of foreign relations, that have caused serious problems for our nation's leaders and constitutional scholars over the past two centuries. How have our presidents reacted? Certainly the President can and has acted on his own in negotiating, enacting, and implementing foreign policy, despite the lack of any express executive …

The Third House Of Congress Versus The Fourth Branch Of Government: The Impact Of Congressional Committee Staff On Agency Regulatory Decision-Making, 19 J. Marshall L. Rev. 247 (1986), James P. Hill

UIC Law Review

No abstract provided.

Pragmatism And Parity In Appointments, Yxta Maya Murray

Michigan Journal of Gender & Law

This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …

Executive/Congressional Liason In A Post Cold War Era, Anthony J. Eksterowicz, Glenn P. Hastedt

Richmond Journal of Law and the Public Interest

While it is true that presidents can and will attempt to practice domination of the Congress when making public policy, the nature of the new environment makes it less likely that they will regularly succeed. Because of the complexity of issues, there is a need to revisit the mechanics of executive/legislative liaisons in this new era. This essay represents such an attempt. First, we examine the changes that impact presidential policy-making in the post-Cold War era. Second, we review the ongoing debate in presidential literature concerning executive dominance over the Congress. Third, we briefly examine the modern history of presidential/congressional …

Jones V. Clinton:Reconsidering Presidential Immunity, Amy Marshall

Richmond Journal of Law and the Public Interest

Part I sets out the basic concepts of immunity, both absolute and qualified, and proceeds to provide the relevant historical precedent regarding legislative, judicial, and executive immunity. The discussion regarding executive immunity covers Supreme Court precedent from 1895 to the watershed case of Nixon v. Fitzgerald in 1982. Part I focuses on Nixon v. Fitzgerald because both the district court and the court of appeals rely most heavily on this case in their respective opinions in Jones v. Clinton. Part II discusses the district court and the court of appeals opinions in Jones v. Clinton. Part III presents the argument …

Marbury's Travail: Federalist Politics And William Marbury's Appointment As Justice Of The Peace, David F. Forte

Law Faculty Articles and Essays

This Article describes how Marbury, the youngest son of an impoverished remnant of a well-known family, elbowed his way to wealth and influence among the Maryland gentry. Further, this Article illuminates Marbury's choice between the two wings of the Federalist party in Maryland - the Hamiltonian elite and the Adams' loyalists - and how Marbury's partisan service brought him to a position earning Thomas Jefferson's disdain and rebuff. In the end, Marbury's appointment and rejection derived from the very different characters of John Adams and Thomas Jefferson.

Adventures In The Zone Of Twilight: Separation Of Powers And National Economic Security In The Mexican Bailout, Russell D. Covey

Faculty Publications By Year

No abstract provided.

Foreign Policy: Can The President Act Alone?Gaps And Conflicts In The Constitutional Grants Of Power, Dana C. Makielski

Richmond Public Interest Law Review

The Framers did not intend the Constitution to be an all-inclusive "bill of lading," for we cannot forget John Marshall's famous admonition "that it is a constitution we are expounding."' Nonetheless, there are many large gaps and conflicts in the allocation of power among the three branches, most in the area of foreign relations, that have caused serious problems for our nation's leaders and constitutional scholars over the past two centuries. How have our presidents reacted? Certainly the President can and has acted on his own in negotiating, enacting, and implementing foreign policy, despite the lack of any express executive …

The U.S. Presidency: Fostering Global Free Trade Through Minilateral Free Trade Agreeements With Germany And Japan, J.R. Smith

Richmond Public Interest Law Review

The U.S. Presidency: Fostering Global Free Trade Through Minilateral Free Trade Agreements with Germany and Japan argues that global free trade will be better served by agreements of substance among fewer countries than by agreements of form among many countries. Specifically, the article addresses problems with the General Agreement on Tariffs and Trade (GATT) and argues that the goal of global free trade is more easily achieved through bilateral agreements between the United States and Germany, and the United States and Japan. The article concludes that such bilateral agreements, and the ultimate goal of global free trade, can be realized …

Jones V. Clinton:Reconsidering Presidential Immunity, Amy Marshall

Richmond Public Interest Law Review

Part I sets out the basic concepts of immunity, both absolute and qualified, and proceeds to provide the relevant historical precedent regarding legislative, judicial, and executive immunity. The discussion regarding executive immunity covers Supreme Court precedent from 1895 to the watershed case of Nixon v. Fitzgerald in 1982. Part I focuses on Nixon v. Fitzgerald because both the district court and the court of appeals rely most heavily on this case in their respective opinions in Jones v. Clinton. Part II discusses the district court and the court of appeals opinions in Jones v. Clinton. Part III presents the argument …

From The Covenant To The Contract:Rhetoric And Meaning In The American Presidency, Dean C. Hammer

Richmond Journal of Law and the Public Interest

My concern here is not with explaining why the "New Covenant" failed to capture the political imagination of the electorate; rather, my interest lies in how the covenant as a political symbol was analyzed by both the media and scholarship. My suggestion is that this treatment is itself symbolic of a far deeper dilemma that faces not only President Clinton but also future presidents. The problem is this: at the same time that the public turns increasingly to the President to provide a "vision" of a common purpose and direction to government and society, the articulation of that vision rests …

Executive/Congressional Liason In A Post Cold War Era, Anthony J. Eksterowicz, Glenn P. Hastedt

Richmond Public Interest Law Review

While it is true that presidents can and will attempt to practice domination of the Congress when making public policy, the nature of the new environment makes it less likely that they will regularly succeed. Because of the complexity of issues, there is a need to revisit the mechanics of executive/legislative liaisons in this new era. This essay represents such an attempt. First, we examine the changes that impact presidential policy-making in the post-Cold War era. Second, we review the ongoing debate in presidential literature concerning executive dominance over the Congress. Third, we briefly examine the modern history of presidential/congressional …

From The Covenant To The Contract:Rhetoric And Meaning In The American Presidency, Dean C. Hammer

Richmond Public Interest Law Review

My concern here is not with explaining why the "New Covenant" failed to capture the political imagination of the electorate; rather, my interest lies in how the covenant as a political symbol was analyzed by both the media and scholarship. My suggestion is that this treatment is itself symbolic of a far deeper dilemma that faces not only President Clinton but also future presidents. The problem is this: at the same time that the public turns increasingly to the President to provide a "vision" of a common purpose and direction to government and society, the articulation of that vision rests …

Jones V. Clinton And Presidential Immunity, Braxton Hill

Richmond Public Interest Law Review

On May 6, 1994, Paula Corbin Jones set in motion events that could alter the legal status of the office of the President of the United States. Ms. Jones filed a lawsuit against William Jefferson Clinton, the sitting President, because of sexual improprieties he allegedly committed while serving as Governor of Arkansas. As of January 1996, the case had already worked its way up the judicial ladder from the trial court to the first appellate level. Jones v. Clinton is poised to come before the United States Supreme Court, which could address unexplored areas of presidential jurisprudence--the body of legal …

Jones V. Clinton And Presidential Immunity, Braxton Hill

Richmond Journal of Law and the Public Interest

On May 6, 1994, Paula Corbin Jones set in motion events that could alter the legal status of the office of the President of the United States. Ms. Jones filed a lawsuit against William Jefferson Clinton, the sitting President, because of sexual improprieties he allegedly committed while serving as Governor of Arkansas. As of January 1996, the case had already worked its way up the judicial ladder from the trial court to the first appellate level. Jones v. Clinton is poised to come before the United States Supreme Court, which could address unexplored areas of presidential jurisprudence--the body of legal …

The U.S. Presidency: Fostering Global Free Trade Through Minilateral Free Trade Agreeements With Germany And Japan, J.R. Smith

Richmond Journal of Law and the Public Interest

The U.S. Presidency: Fostering Global Free Trade Through Minilateral Free Trade Agreements with Germany and Japan argues that global free trade will be better served by agreements of substance among fewer countries than by agreements of form among many countries. Specifically, the article addresses problems with the General Agreement on Tariffs and Trade (GATT) and argues that the goal of global free trade is more easily achieved through bilateral agreements between the United States and Germany, and the United States and Japan. The article concludes that such bilateral agreements, and the ultimate goal of global free trade, can be realized …

The Independent Counsel Statute: Bad Law, Bad Policy, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The Watergate scandal-and the crisis in public confidence in government it spawned-left us many legacies, one of which is the Independent Counsel ("IC") statute. Over twenty years after the fact, the "lessons" of the scandal itself continue to be the dominant reference. It is time to evaluate the "lessons" of Watergate's legacies and, in particular, the IC mechanism.