President/Executive Department Commons^™

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Asylum Under Attack: Restoring Asylum Protections In The United States, Lindsay M. Harris

Journal Articles

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to …

A Trend You Can't Ignore: Social Media As Government Records And Its Impact On The Interpretation Of The Law, Jessica De Perio Wittman

Faculty Articles and Papers

There has been a sharp increase in official communications from government agencies and elected officials that occur initially, primarily, and even solely, on social media. The Federal Records Act (FRA), Presidential Records Act (PRA) and the Freedom of Information Act (FOIA) govern the retention, access, preservation and disclosure of records produced by the federal government. Recent litigation has highlighted why courts, attorneys, and other legal researchers must consider social media as a primary source of government information, particularly when records may become inaccessible once a social media post is modified or deleted, or when technology becomes obsolete. Additionally, as social …

Transparency And The First, Mark Fenster

UF Law Faculty Publications

In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Is Climate Change A National Emergency?, Mark P. Nevitt

Faculty Articles

The next decade is critical for climate action. As sea levels rise, wildfires rage, and disasters increase in frequency and scale, it is clear that the U.S. must leverage an expanding menu of legal, policy, and technological tools to address climate change’s destabilizing effects. At present, we remain off-track to reduce our collective greenhouse gas (“GHG”) emissions and avoid irreversible, catastrophic harm. The emissions gap — the difference between the world’s current emissions trajectory and what we must emit to avoid climate change’s most severe consequences — continues to grow. Although President Biden and the 117th congressional leadership have pledged …

Ostracism And Democracy, Alex Zhang

Faculty Articles

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first …

The Unitary Executive Theory Is Plainly Wrong And Anti-American: "Presidents Are Not Kings", Allen E. Shoenberger

Faculty Publications & Other Works

President Trump clearly believes he was a king. He was not. Both the Constitution itself and Constitutional history make that abundantly clear. The kingship claim is made under the guise of the Unitary Executive Theory, a theory that lacks any historical grounding and a theory that is fundamentally at odds with why the American Revolution was fought. It is a very dangerous theory, as the Presidency under Trump illustrates. Its culmination: a physical assault on the Capital.

This article will first examine the Constitutional history of the power of the president, and then turn to the rise of the doctrine …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi

Honors Theses and Capstones

In 1832, President Andrew Jackson issued a veto message claiming the same duty as the Supreme Court to interpret the U.S. Constitution. Do modern presidents exercise the principal role in interpreting the U.S. Constitution that President Jackson claimed was their duty, and, if so, in what ways do they choose to articulate their interpretations? The hypothesis is that modern presidents have exercised a principal role in interpreting the U.S. Constitution similar to the interpretative duty expressed by President Jackson, and they perform this duty, in part, through the issuance of veto messages and signing statements. After a content analysis of …

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Government Ethics In The Age Of Trump, Adam Raviv

University of Michigan Journal of Law Reform

Americans’ trust in government officials has never been lower. Despite the intense public focus on ethics in government in recent years, legal scholarship on the subject has been sparse. This Article fills the gap by examining the ethics regime of the federal executive branch in depth, with a discussion of both the applicable ethics standards and the agencies and offices that are charged with ensuring that government officials comply with those standards. The Article describes how the current system heavily emphasizes prevention, education, and highly detailed disclosures while it rarely enforces the law against wrongdoers. A federal official in the …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook, Iii

University of Michigan Journal of Law Reform

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

Foreign Affairs Federalism: The Doctrine Of Foreign Affairs Preemption And State Regulation In Light Of The Paris Agreement, Anagha Sundararajan

University of San Francisco Law Review

No abstract provided.

Full Faith & Credit For Victims Of Human Trafficking, Joseph Woltmann

University of San Francisco Law Review

No abstract provided.

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …