President/Executive Department Commons^™

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

Should We Stay Or Should We Go: Lessons From The Trump Administration, Kathleen Clark

Scholarship@WashULaw

After the 2016 election, commentators published a flurry of essays with advice on whether lawyers and federal officials should remain in government during the Trump administration. In this article, I review those essays, includ- ing Professor David Luban’s stern advice about the risk of remaining. I also discuss three key concepts from Professor Luban’s article for this symposium: desk perpetrators, desk mitigators, and operational maneuvering room, and explore how they apply to Trump administration officials who engaged in internal

resistance or principled resignation. More than one hundred federal officials

in the administration engaged in principled resignation, many acting in concert …

Oversight Riders, Kevin Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Potus And Pot: Why The President Could Not Legalize Marijuana Through Executive Action, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election showed that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.

This Essay warns that such promises are both misguided and dangerous because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that …

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

Red Scare Or Red Herring: How The “China Initiative” Strategy For Non-Traditional Collectors Is Stifling Innovation In The United States, Bianca Tillman

Seattle Journal of Technology, Environmental, & Innovation Law

In 2018, the U.S. Department of Justice launched the “China Initiative” in response to the growing economic and national security threat posed by China. The China Initiative is a sweeping federal plan designed, in part, to protect the United States’ status as a leader in global innovation and scientific discourse. The U.S. is justified in its concern over China’s unfair practices to achieve military, technological, and economic prominence. While U.S. and Chinese intelligence agencies have spied on each other for decades, China has increased both the scope and the sophistication of its efforts to steal secrets from the U.S. in …

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

Brave New World: A Post-Coronavirus Perspective On Trade, Kevin J. Fandl

Journal of Law and Policy

Trade policy during the Obama Administration largely reflected the pinnacle of the globalist moment in history. The dream of global peace through economic security was on the cusp of being achieved, with a comprehensive set of trade alliances linking countries both economically and politically to one another, a worldwide system of rules which nearly all countries abided in their economic relationships, and a deeply integrated global supply chain that not only enabled companies to satisfy consumer demands at exceedingly low cost and rapid development, but also empowered more and more workers in poor countries to join the global economy. This …

“A Climate Of Lawlessness”: Upholding A Government’S Affirmative Duty To Protect The Environment Using Deshaney’S Special Relationship Exception, Katherine G. Horner

Journal of Law and Policy

The Industrial Revolution introduced an era of exceptional technological advances. However, it also led to rampant environmental pollution and degradation. The proliferation of toxic pollutants in the air, water and soil has led us to the precipice of an unimaginable future; a future defined by climate change. This Note argues for the use of the special relationship exception, affirmed by the Supreme Court in DeShaney v. Winnebago, in environmental litigation in order to uphold governments’ affirmative duty to protect the environment. As federal and state governments have the sole power to regulate environmental pollution and enforce environmental protections, individuals are …

A Constitutional Right To A Functioning United States Government? Are Government Shutdowns Unconstitutional?, Allen Shoenberger

Brigham Young University Journal of Public Law

No abstract provided.

The Gsa’S Delay In Recognizing The Biden Transition Team And The National Security Implications, Katherine A. Shaw, Ryan Goodman

Online Publications

Pressure is mounting on a usually low-profile government official to activate the full range of resources ordinarily provided to an incoming administration’s presidential transition team. Under the Presidential Transition Act of 1963, a statute that has been revised a number of times since passage, it is not until the Administrator of the General Services Administration (GSA) “ascertain[s]” the “apparent successful candidate” of a presidential election that the president-elect and his transition team gain access to the office space, funds, briefings, and other government resources necessary to effect a smooth and effective transfer of power.

Echoes Of 9/11: Rhetorical Analysis Of Presidential Statements In The "War On Terror", Bruce Ching

Journal Articles

This article examines persuasive statements by Presidents George W. Bush, Barack Obama, and Donald Trump involving appeals to national identity as a rhetorical foundation for anti-terrorism policy since 9/11. Their specific rhetorical methods have included the use of memorable catchphrases, alliteration, metaphorical framing, and contrast between values of the United States and those of the terrorists. President Bush focused on rallying the nation’s response against the perpetrators of the 9/11 attacks, identifying the U.S. with “freedom itself” and invoking the phrase “War on Terror.” President Obama emphasized the importance of the nation’s values while denouncing the Bush administration’s torture of …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Government Tweets, Government Speech: The First Amendment Implications Of Government Trolling, Douglas B. Mckechnie

Seattle University Law Review

President Trump has been accused of using @realDonaldTrump to troll his critics. While the President’s tweets are often attributed to his personal views, they raise important Constitutional questions. This article posits that @realDonaldTrump tweets are government speech and, where they troll government critics, they violate the Free Speech Clause. I begin the article with an exploration of President Trump’s use of @realDonaldTrump from his time as a private citizen to President. The article then chronicles the development of the government speech doctrine and the Supreme Court’s factors that differentiate private speech from government speech. I argue that, based on the …