President/Executive Department Commons^™

Presidential Control Over Disputed Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Presidential Whim, Matthew J. Steilen

Journal Articles

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Administrative Law's Extraordinary Cases, Jonathan Skinner-Thompson

Publications

The Supreme Court's major questions doctrine is grounded in the Chevron framework. Reconstituting it as a "major rules" exception to Chevron or as a non-delegation principle are misguided and create greater uncertainty.

Honoring Sally Jewell, Charles Wilkinson

Publications

No abstract provided.

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

Publications

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier and faster and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment and immigration law issues such as …

Consent Of The Governed: A Constitutional Norm That The Court Should Substantially Enforce, David Schoenbrod

Articles & Chapters

Available at https://www.harvard-jlpp.com/

The Art Of Sore Losing: The Effect Of Outsider Candidates On The Democratic Nomination System, Cassidy Holzer

Honors Theses

Abstract: The 2016 election posed a series of interesting questions about outsider candidates: Who are they? Why do they run? How do they affect the party? What party mechanisms either foster or hinder outsiders? To answer these questions, I look at every election after 1968-- the year the McGovern-Fraser reforms flipped the Democratic nomination system on its head. I classify every competitive candidate in every post-1968 election as an outsider, an establishment-like, or an establishment candidate, evaluating their political experience and reliance on small-donors. I find that Iowa and New Hampshire serve a pivotal point for all candidates, encouraging a …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Executive Overreach And Underreach In The Pandemic, Kim Lane Scheppele, David E. Pozen

Faculty Scholarship

The pandemic that convulsed the globe in 2020 was long foretold but still surprising to many. Within a few months of its appearance, COVID-19 became one of the leading causes of death worldwide. Governments struggled at first to comprehend what was happening – and then reacted in very different ways. Most political leaders followed the advice of epidemiologists. Many declared states of emergency. A few pursued autocratic agendas. And some did almost nothing.

During emergencies, constitutional scholars normally worry about executive aggrandizement at the expense of human rights and democratic values. Emergencies often require national executives to act quickly and …

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Presidential Crimes Matter, Julian A. Cook

Scholarly Works

The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact …

Does Doe V. Mattis Open The Door To Citizen-Detainee Transfer?, Amy Greer Ph.D.

Roger Williams University Law Review

No abstract provided.

After Ice: A New Humane & Effective Immigration Enforcement Paradigm, Peter L. Markowitz

Articles

In recent years, as the U.S. Immigration and Customs Enforcement Agency's ("ICE') brutal tactics have devasted communities across the nation, a growing chorus of activists and policymakers have begun calling for the agency to be abolished. Abolish ICE advocates have made a compelling case for the irredeemable deficiencies of ICE; they have exposed the core injustices that lay at the heart of our current enforcement scheme, and they have proposed specific and thoughtful changes that are both defensible and achievable. However, these changes tend to focus on a negative vision of what we need to eliminate in our current enforcement …

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …