President/Executive Department Commons^™

Amending Insurrection: Restoring The Balance Of Power In The Insurrection Act, Jeremy S Campbell

Texas A&M Law Review

The Insurrection Act allows the president to domestically deploy and utilize the federal standing army and state militias to perform functions normally performed by domestic law enforcement. The president can invoke the Act when circumstances make it impracticable to enforce domestic law by normal means, when the execution of the law is obstructed such that it deprives citizens of rightful legal protections, or upon the request of a state. Under the current version of the Act, the president possesses the sole and absolute discretion to determine when it is invoked during the two former instances above. When invoked, the Act …

Sufficiently Judicial: The Need For A Universal Ethics Rule On Attorney Behavior In Legislative Impeachment Trials, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In assessing an ethics, rule-based prohibition against New Jersey governmental attorneys representing clients against the state for matters the state had previously assigned to them, the state supreme court noted: “In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.”

In the beginning of 2020, the United States Senate held an impeachment trial to determine whether former President Donald J. Trump had committed offenses forwarded by the House of Representatives. A U.S. Senate trial, much like state senate trials, is both judicial and political …

Inspectors General And The Law Of Oversight Independence, Andrew C. Brunsden

William & Mary Bill of Rights Journal

President Trump’s defiance of basic norms threatened the oversight institutions of American democracy. His brazen assault on the prosecutorial and investigative independence of federal law enforcement was well documented. Yet few have thoroughly scrutinized his violations of the oversight independence of internal institutions that monitor the government to promote integrity, transparency, and accountability. This Article examines the independence of Inspectors General (IGs), the internal watchdogs of the Executive Branch, and the President’s attacks on the institution. President Trump breached long-standing independence norms when he fired or replaced IGs in retaliation for their legitimate exercise of oversight duties. Then, in some …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Inspectors General And The Law Of Oversight Independence, Andrew Brunsden

Articles & Chapters

President Trump's defiance of basic norms threatened the oversight institutions of American democracy. His brazen assault on the prosecutorial and investigative independence of federal law enforcement was well documented. Yet few have thoroughly scrutinized his violations of the oversight independence of internal institutions that monitor the government to promote integrity, transparency, and accountability. This Article examines the independence of Inspectors General (IGs), the internal watchdogs of the Executive Branch, and the President's attacks on the institution. President Trump breached long-standing independence norms when he fired or replaced IGs in retaliation for their legitimate exercise of oversight duties. Then, in some …

Introductory Essay For The Issue Devoted To The Appointment Of Amy Coney Barrett To The U.S. Supreme Court, David Rudenstine

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

A Bolt Of Lightning: Measuring The Impact Of Modern Transitions On The Supreme Court, Daniel Kiel

Cardozo Law Review

Lightning struck on September 18, 2020. In a year in which so many unimaginable events had unfolded and were unfolding, the death of Justice Ruth Bader Ginsburg sent shock waves not only through the nation’s legal community, but throughout the country. Ginsburg, a champion of women’s rights as both lawyer and Justice, the multi-time survivor of cancer, the Court’s tiny, surprising, and notorious rock star, passed away at a precarious moment. Aside from the existential challenge presented by the COVID-19 pandemic, the nation was 46 days from a presidential election. Given that the responsibility of nominating Supreme Court Justices fell …

The Place Of The Presidency In Historical Time, Robert L. Tsai

Faculty Scholarship

This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …

Biden Administration U.S. Space Force Policy Literature, Bert Chapman

Libraries Faculty and Staff Presentations

Provides details on U.S. Space Force policy literature produced by the Biden Administration during its first eight months. Includes announcements that the Biden Administration will continue this new armed services branch begun during the Trump Administration. Features congressional testimony of Biden Administration officials such as Secretary of Defense Lloyd Wilson and Air Force Space Command leader General James Dickinson, the text of Space Force's 2021 Digital Force Vision document, congressionally approved FY 2022 space force budget figures, congressional committee comments and report requirements contained in emerging defense spending legislation, the emergence of collaboration between Space Force and universities such as …

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …

Crisis Management Lessons From The Clinton Administration's Implementation Of Presidential Decision Directive 56, Leonard R. Hawley

The US Army War College Quarterly: Parameters

Drawing on personal experience, the author asks what the current administration can learn from the Clinton administration’s implementation of Presidential Decision Directive 56, examines the real-world application of the directive during the Clinton administration and the pitfalls of its agency-centric successor during the Bush administration, and identifies recurring problems and best practices for successfully responding to current global crises.

United States V. Muhammad: Brief Of Evidence Law Professors As Amici Curiae In Support Of Respondents, Richard D. Friedman

Appellate Briefs

Amici curiae teach, research, and write about the law of evidence. Amici share the view that the United States Court of Appeals for the Ninth Circuit correctly remanded this case to the District Court for an in camera review of the Executive’s claim of the state secrets privilege.<\p>

The concept of “state secrets” is an evidentiary privilege. It is occasionally confused with other doctrines. Privileges are to be strictly construed and narrowly interpreted because they impede the search for truth. The state secrets privilege should not operate as a monarchal “Crown Privilege.” When courts are confronted with state secrets claims, …

National Security Rules: America's Constitution Of Law And War, Kyle L. Greene

Maine Law Review

Contemporary debates over the appropriate allocation of war powers between the political branches overemphasize the rigidity of the Constitution’s framework. This style of academic discussion sacrifices the lessons of practice in search of steadfast, yet empty, principles. Even beyond the practical failings of this approach, there is no constitutional basis for the notion that either Congress or the President has a singular, fixed role when dealing with national security issues. In fact, the Founders developed a constitutional structure capable of continually reshaping—within parameters—the government’s division of national security power to match the nation’s security challenges. Rather than scouring the constitutional …

Partisan Or Precedent: The History Of Nominating Supreme Court Judges In Presidential Election Years, Hattie Jefferies

Helms School of Government Undergraduate Law Review

No abstract provided.

Abdication Through Enforcement, Shalini Ray

Indiana Law Journal

Presidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially making every deportable …

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray

William & Mary Bill of Rights Journal

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering …

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …