President/Executive Department Commons^™

Navigating Section Three From Griffin’S Case To The Case Of Couy Griffin: Who Should Decide Its Longstanding Questions?, Austin Carpenter

BYU Law Review

Section Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition.

Yet, use of Section …

Partisanship Creep, Katherine Shaw

Northwestern University Law Review

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

When Governors Prioritize Individual Freedom Over Public Health: Tort Liability For Government Failures, Barbara Pfeffer Billauer Jd, Ma, Phd

Journal of Law and Health

Over half the states have enacted laws diminishing or curtailing the rights of the executive branch (legislatures or governors) to enact laws to preserve, protect, or safeguard public health in the wake of the COVID-19 emergency. Governor DeSantis, of Florida, for example, effectively banned mask mandates in schools during the high point of the epidemic – based on flawed science and erroneous data – and now wants to make that response permanent. The rules effectuating this Executive Order were enacted under an emergency order finding a threat to public health. Nevertheless, the response promulgated by the Florida Department of Health …

The Supreme Court And The Federalist Society Network: The Conversation That Determined Whose Vote Counts, Deborah Toscano

Cardozo Journal of Equal Rights & Social Justice

The article examines the role of the Federalist Society Network (FSN) in shaping the Supreme Court's decision in Shelby County v. Holder, which invalidated Section 4 of the Voting Rights Act (VRA). The FSN's legal framework, emphasizing state sovereignty and the Tenth Amendment, influenced the Court's expansion of the "equal sovereignty" doctrine, leading to the dismantling of a key provision of the VRA. This decision reflects a broader shift in federalism, prioritizing state autonomy over federal oversight in voting rights.

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

Searching Govinfo.Gov/, Bert Chapman

Libraries Faculty and Staff Presentations

This U.S. Government Publishing Office (GPO) database provides access to information legal, legislative, and regulatory information produced on multiple subjects by the U.S. Government. Content includes congressional bills, congressional committee hearings and prints (studies), reports on legislation, the text of laws, regulations, and executive orders and multiple U.S. Government information resources covering subjects from accounting to zoology.

Worthless Checks? Clemency, Compassionate Release, And The Finality Of Life Without Parole, Daniel Pascoe

Northwestern University Law Review

Life without parole (LWOP) sentences are politically popular in the United States because, on their face, they claim to hold prisoners incarcerated until they die, with zero prospect of release via the regularized channel of parole. However, this view is procedurally shortsighted. After parole there is generally another remedial option for lessening or abrogating punishment: executive clemency via pardons and commutations. Increasingly, U.S. legal jurisdictions also provide for the possibility of compassionate release for lifers, usually granted by a parole board.

On paper, pardon, commutation, and compassionate release are thus direct challenges to the claim that an LWOP sentence will …

Why Outlaw Laws?: An Argument For A Probationary Period For Lethal Autonomous Weapons Systems Under Meaningful Human Control., Katherine E. Vuyk

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Ending Exemption 5 Expansion: Toward A Narrower Interpretation Of Foia’S Exemption For Inter- And Intra-Agency Memorandums, Ryan W. Miller

Fordham Law Review

The Freedom of Information Act (FOIA) creates a judicially enforceable right to access almost any record that a federal agency creates or obtains. Its crafters aimed to strike a careful balance in promoting disclosure of government records to increase transparency while still protecting the confidentiality of certain information. Although any person can request an agency record, FOIA’s nine exemptions allow agencies to withhold records if certain conditions are met. 5 U.S.C. § 552(b)(5) permits agencies to withhold “inter-agency or intra-agency memorandums or letters” that would normally be privileged in civil discovery. Through this exemption, Congress sought to prevent FOIA from …

War Powers Reform: A Skeptical View, Matthew C. Waxman

Faculty Scholarship

Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reform-ists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.

Condensing The Alphabet Soup: Missed Administrative Rulemaking Concerns In U.S. Securities & Exchange Commission V. Alpine Securities Corporation, David Davani

Cardozo Law Review

For decades, the political landscape in the United States, characterized by deadlock in Congress and increasingly polarized relations among the country’s major political parties, has put the responsibility of keeping the government functioning in the hands of the administrative state. An absence of regular, substantive legislation (and a President willing to sign the bills given to her by Congress into law) leaves the advancement of meaningful policy to the rulemaking functions of federal executive agencies. Agency rules, developed pursuant to Congressional commands, aim to ensure that private industries will keep air and water clean, make sure drugs are safe, and, …

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jodi L. Short, Jed Handelsman Shugerman

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

What Roosevelt Did To Brown V. Board Of Education, Or Race And Court Packing, Jill M. Fraley

Scholarly Articles

Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed--even derailed--desegregation.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

A New Day For Environmental Justice At The U.S. Epa, Clifford Villa

Faculty Scholarship

September 24, 2022, was a big day in the history of the EPA. On this day, EPA Administrator Michael Regan signed an order creating a new Office of Environmental Justice and External Civil Rights (“OEJECR”) within the EPA. We’re very excited about our new office of environmental justice at the EPA. However, the EPA takes environmental justice seriously across all the offices, including my own Office of Land and Emergency Management (“OLEM”).

In this lecture, we will begin with some early history of environmental justice, how we realized the existence of environmental injustice in the first place. Then we’ll talk …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …