President/Executive Department Commons^™

Words Matter: The Rhetoric Of National Security And The Reality Of Individual Rights, Christopher J. Borgen

Journal of Civil Rights and Economic Development

(Excerpt)

While the meanings of words can be flexible or contested, they are not infinitely pliable. These limits on words and their uses help define the outer bounds of legitimate state action. However, even the written law is only as stable as our interpretation of what those words mean. There is the risk that a deliberate and persistent misuse of words by states and other actors can eventually change our understanding of the law it.

Some of my work has analyzed the use of words and phrases such as “self-determination,” “sovereignty,” and “secession.” But, in this Essay, I focus on …

The Interpretive Force Of Alexander Hamilton’S Early Expositions Of Presidential Power, Michael Stokes Paulsen

Pepperdine Law Review

The most important, rightly influential, early interpretations of the Constitution on presidential power concerning matters of war, peace, and foreign affairs flowed from the able pen of Alexander Hamilton in three sets of pseudonymous public essays: as “Publius” in The Federalist (1787–1788); as “Pacificus” (1793–1794); and “Camillus” (1795–1796). As Publius, Hamilton expounded a broad understanding of presidential constitutional power generally and of presidential power in war and foreign affairs specifically, including an essentially plenary Commander-in-Chief power over the conduct of authorized war (but with no constitutional power to initiate war: that power being explicitly and exclusively assigned to Congress). As …

Judicial Appointments Before Vacancies, Vasan Kesavan

Pepperdine Law Review

Appointments are about power—presidential power. There is no greater presidential appointment power than the power to appoint federal judges who are expected to serve for life. Judicial appointments allow the President to shape one branch of the federal government for decades to come, perhaps decisively, thereby helping to define his legacy. Of all judicial appointments, there is nothing more significant than appointments to the Supreme Court, if the President even has the opportunity during his term. But these appointments are the most difficult for the President to make in the most partisan political period in our lifetimes. May a President, …

Legal Academia And Permanent Democracy: The Fault In Our Law Schools, Sara Dillon

DePaul Journal for Social Justice

It is widely recognized that the American Constitution is failing as the foundational document of a modern democracy. Although many basic principles of constitutionalism have faded into irrelevance, with rising authoritarianism eclipsing such core ideals as judicial independence, separation of powers and restraints on arbitrary use of power, America’s nearly 200 institutions of legal teaching and scholarship have provided little in the way of proposals for urgently needed law reform. It is striking that even with so many high-powered academic institutions, so few meaningful proposals for constitutional change have been presented to the public as a way out of our …

Shadows, Not Substance: Trump V. United States, Presidential Criminal Immunity, And Bribery, Lennon Greco

Buffalo Law Review

No abstract provided.

Executive Clemency And Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders, R. Linus Chan

Idaho Law Review

No abstract provided.

Federalism, Family Unity, And Keeping Families Together, Kristina M. Campbell

Idaho Law Review

No abstract provided.

Immigration Federalism In The Second Trump Administration, Stella Burch Elias

Idaho Law Review

This Article explores the ongoing transformation of state and local engagement in immigration-related rulemaking in the United States during the Second Trump Administration. The Article examines the myriad ways in which federal executive actions and state responses to those actions, alongside independent state actions and the federal government’s responses to those actions, are upending long established immigration law doctrines and shifting the borders of American federalism. The Article discusses legal scholars’ previous understanding of immigration federalism, embodied in United States v. Arizona, and the prior distinctions between permissible “alienage” laws and impermissible “immigration” laws, which could not be introduced by …

Plea Bargain Skepticism When Companies Kill People, Peter R. Reilly

Faculty Scholarship

In 2018 and 2019, two Boeing 737 MAX airplanes fell from the sky, killing 346 people—one of the deadliest corporate crimes in U.S. history. Instead of taking the case to trial, the United States Department of Justice (“DOJ”) addressed the matter by using two different alternative dispute resolution vehicles. First, Boeing was given a three-year deferred prosecution agree-ment. That deal was canceled when DOJ determined the company had breached it. Next, Boeing was given a plea bargain. This Article argues that federal courts, which are empowered to approve or reject plea deals, should be skeptical when the government turns to …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

The Unitary Executive And The Federal Reserve, Lev Menand

Fordham Law Review

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation—known as the unitary executive theory (UET)—would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the country’s central banking apparatus …

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

The Unitary Executive And The Federal Reserve, Lev Menand

Faculty Scholarship

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation — known as the unitary executive theory (UET) — would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the …

The Rhythm Of Reform, Michael Waldman

Cardozo Law Review

This year, we celebrate the 250th anniversary of our independence. In January 1776, Thomas Paine published Common Sense. Paine was an immigrant who had arrived only two years before. The pamphlet went viral, a widely bootlegged bestseller with 120,000 copies sold in its first three months in print. It galvanized support for independence and argued that the collection of colonies should become a republic. Paine wrote: “[I]n America THE LAW IS KING.”

Is that still true? We are finding out.

Today our Constitution and the institutions of self-government face extraordinary pressure. In the first two months of 2026 alone, …

The Justice Department’S Bid To Avoid Accountability, Bruce A. Green, Rebecca Roiphe

Other Publications

No abstract provided.

The Military Officer's Oath To Disobey Lawful But Unethical Orders, Joshua Braver

Northwestern University Law Review

How should a military officer respond to a lawful yet unethical order, unethical in the sense that it conflicts with their professional responsibilities? Army culture, scholarship, and doctrine regard officers as professionals, akin to doctors and lawyers, with expertise in the management of violence and a shared commitment to an ethical code. This code demands obedience to lawful orders to uphold civilian control of the military. But to protect against civilian misuse of the military, the code requires disobedience to unethical orders. Faced with a lawful but unethical order, the military officer is mired in a contradiction in which their …

Place Names And Presidential Control, Austin Kruse

Northwestern University Law Review

Since the start of his second term, President Trump has issued executive orders at an extraordinary pace, using them to advance a broader ideological agenda across the administrative state. While scholarly attention has largely focused on the most sweeping of these directives, less prominent orders raise similar concerns about the reach of presidential power. This Note examines one such order: Executive Order 14,172, which directs the renaming of the Gulf of Mexico and Denali and expands presidential influence over the U.S. Board on Geographic Names (BGN).

Although geographic naming is ostensibly apolitical, place names are deeply entangled with questions of …

The Executive’S Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Pepperdine Law Review

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

The Imperious Presidency: Brazen Power Plays And Executive Overreach, Daniel Farber

Pepperdine Law Review

The Trump Administration has been prone to brazen power plays. These actions have three basic characteristics: they are dramatic deviations from conventional governance, generating headlines and online clicks; their legal (and sometimes factual) foundations are tenuous; and they are potentially effective even if they are ultimately held lawful. This Essay analyzes this phenomenon. It argues that such power plays can be a rational strategy for a president under certain circumstances. Power plays can help dominate the news flow and energize the political base. They can also cause behavior shifts in their targets, even when litigation would be likely to overturn …

“The Future Of Executive Power”: An Overview, Robert J. Pushaw Jr.

Pepperdine Law Review

This symposium overview examines the rapid expansion of presidential power in the modern era, culminating in what the author and contributors describe as an unprecedented assertion of Article II authority during President Trump’s second term. It argues that the Constitution’s original separation-of-powers framework—designed to prioritize legislative authority and constrain the executive—has been inverted due to the growth of presidential control over foreign affairs, the administrative state, and policymaking. The article traces this shift through historical developments such as the New Deal, the rise of independent agencies, and the emergence of the “unitary executive” theory, while also analyzing recent Supreme Court …