President/Executive Department Commons^™

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

The Practice Of Executive Constitutionalism, Conor Clarke, Daniel Epps

Scholarship@WashULaw

The Executive Branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the Executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the Executive Branch interprets the Constitution and translates those interpretations into concrete decisions? What is their history? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvased the most central tools by which the Executive Branch shapes and implements constitutional law, or considered what makes them …

Law Enforcement Independence In Trump’S Second Term, Justin Murray

Publications

No abstract provided.

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Faculty Scholarship

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Trump Has A Point On Trade, William Snape

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

The Executive Branch: Powers Of The President & Inaugurations, Wolf Law Library, William & Mary Law School

Library Book Displays

On display in the Wolf Law Library January - July 2025.

The Sword, The Purse, And The Pen: The Constitutional Conundrum Of Impoundment, William N. Chance

CMC Senior Theses

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts. Bringing together two lines of case-law-on …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Posteriores Priores: An Unconstitutional Congressional Role In Treaty Termination, Donna D. Mckeage

Maine Law Review

The Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in …

Bend, Don’T Break: Promoting Interagency Collaboration To Enhance Economic Sanctions As A Foreign Policy Tool, Carson Sugg

St. John's Law Review

(Excerpt)

The U.S. government’s sanctions measures and related enforcement actions for violations are ascending to new levels— both in number and scope. The Executive branch contends that additional authority is necessary to adequately undertake these initiatives, which are a response to proliferating exigent global situations. The requests face opposition from members of Congress and legal scholars, who argue that the current sanctions regime disproportionally favors the Executive at a cost to both individuals and the co-equal branches. The push and pull of these stances suggest that a review of the current regime is due.

This Note argues that economic sanctions …

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Notre Dame Law Review

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

Water, Rosario Sanchez, Gabriel E. Eckstein

Faculty Scholarship

As the new US administration begins its term in January 2025, its ability to address complex, interconnected challenges will shape the future of US-Mexico relations. From economic cooperation and migration to shared security concerns, the new president’s leadership will be pivotal in navigating these critical issues and strengthening bilateral ties between Mexico and the United States. Effective collaboration will be vital to building a more prosperous and stable North America.

To support this effort, the Wilson Center’s Mexico Institute has prepared a comprehensive booklet as a practical roadmap for the incoming administration. This publication offers actionable recommendations across six priority …