President/Executive Department Commons^™

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Congress's Power To Investigate Crime: Did Trump Kill Kilbourn?, David Rapallo

Georgetown Law Faculty Publications and Other Works

Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as “severely discredited.” In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity—including illegal conduct—not to prosecute the offenders, …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Presidential Power And What The First Congress Did Not Do, Michael D. Ramsey

Notre Dame Law Review Reflection

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted …

Rising Threat - Deepfakes And National Security In The Age Of Digital Deception, Dougo Kone-Sow

Cybersecurity Undergraduate Research Showcase

This paper delves into the intricate landscape of deepfakes, exploring their genesis, capabilities, and far-reaching implications. The rise of deepfake technology presents an unprecedented threat to American national security, propagating disinformation and manipulation across various media formats. Notably, deepfakes have evolved from a historical backdrop of disinformation campaigns, merging with the advancements of artificial intelligence (AI) and machine learning to craft convincing but false multimedia content.

Examining the capabilities of deepfakes reveals their potential for misuse, evidenced by instances targeting individuals, companies, and even influencing political events like the 2020 U.S. elections. The paper highlights the direct threats posed by …

Hit The Reset Button: Video Games, Platforms, And Changing Antitrust Vertical Merger Policy, Cahill Maffei

Student Scholarship

For decades, antitrust law has treated vertical mergers as almost per se legal. Courts and scholars embraced the economic theories of the Chicago School, which predict that vertical mergers almost always lead to efficiencies that benefit consumers through lower prices. As a result, vertical mergers are almost never challenged and those that are usually fail. More recently, politicians, regulators, and pundits have become increasingly concerned with the growing concentration of wealth and power among America’s large technology corporations. Part of their dominance can be explained by the rapid rise of platform business models, which through network effects can entrench dominant …

The President's Fourth Branch?, Bijal Shah

Fordham Law Review

Unitary executive theory has taken hold of the administrative state, motivated by the view that agencies constitute a rogue fourth branch of government. Emboldened by the U.S. Supreme Court, the President has begun to interfere with administrative accountability to important criteria including statutory procedural requirements that impact both public participation and administrative due process, the expectation that agencies engage neutral expertise to implement the law, and the obligations of judicial review. As a result, this Essay argues, rather than constituting a fourth branch that is unaccountable to the President, the administrative state has been encouraged by the President and courts …

The Diffuse Executive, Anya Bernstein, Cristina Rodriguez

Fordham Law Review

A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, …

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Defending Against Projects Of Faction: Reforming The Congressional Investigation Process, John Sullivan

Catholic University Law Review

Throughout American history, the power to investigate has been one of key powers of the U.S. Congress. This power, shaped by the Congress itself and the courts, has evolved into a critical tool used to hold parties accountable and to promote effective legislation for the American people. Yet as much as it can be used to further the interests of all Americans, so too can it be used to further a party’s own political agenda. Today, the congressional investigation process has become overly-politicized, misused for fundraising purposes, and overseen by members of Congress who are not investigators by trade.

As …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

The National Security Consequences Of The Major Questions Doctrine, Ganesh Sitaraman, Timothy Meyer

Vanderbilt Law School Faculty Publications

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

The Writing On The Wall: A Proposal For Reform Of The Office Of Legal Counsel In The Wake Of The Trump Administration's Border Wall, Sean Dalton

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Office of Legal Counsel (OLC) has become a tool for unchecked executive power, particularly evident in the Trump administration's use of legal justifications for controversial actions like the border wall. The author proposes that Congress has the constitutional authority to reform the OLC to ensure accountability and transparency, addressing the imbalance in separation of powers.

The Role Of U.S. Government Regulatioms, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.

Lost In Transmission: How To Bring More Clean Energy Onto The Grid, Ryan Block

Student Scholarship

The Inflation Reduction Act and other policies are pushing solar, wind, and other clean energy technologies into the marketplace. But these generators struggle to make the physical connection to the electricity market because interconnection is proving to be a bottleneck; over 2,000 gigawatts of capacity are waiting to connect to the grid. This Article examines the Federal Energy Regulatory Commission’s (FERC’s) regulations that govern the entry of new generation resources onto the grid. It reviews the statutory underpinnings of FERC’s interconnection authority and analyzes key federal regulations, including pending FERC proposals, and finds that current backlogs are the product of …

Delegation Inside The Executive Branch, Stephen Migala

Nevada Law Journal

For nearly 200 years, legal authorities from the Supreme Court to the Restatements to several attorneys general, have relied on a legal maxim to consistently conclude that duties requiring judgment assigned to one officer by Congress cannot be redelegated to another without express statutory authority. As a result of this black-letter-law maxim, hundreds of statutes have been enacted to carefully grant express, targeted delegation authority to specific officers.

But particularly in the last twenty years, this once-solid maxim been flipped on its head. Now, instead of looking for an officer’s express authority to redelegate to a subordinate, also known as …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

United States Of America V. Donald J. Trump, Defendant, Jack Smith

United States Department of Justice: Publications

Violations: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States) Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding) Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding) Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights)

The Grand Jury charges that, at all times material to this Indictment, on or about the dates and at the approximate times stated below:

1. The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 …