President/Executive Department Commons^™

Concerns About Ice Detainee Treatment And Care At Four Detention Facilities, John V. Kelly

United States Department of Homeland Security

In response to concerns raised by immigrant rights groups and complaints to the Office of Inspector General (OIG) Hotline about conditions for detainees held in U.S. Immigration and Customs Enforcement (ICE) custody, we conducted unannounced inspections of four detention facilities to evaluate their compliance with ICE detention standards.

Overall, our inspections of four detention facilities revealed violations of ICE’s 2011 Performance-Based National Detention Standards, which set requirements for facilities housing detainees. This report summarizes findings on our latest round of unannounced inspections at four detention facilities housing ICE detainees. Although the conditions varied among the facilities and not every problem …

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Management Alert -- Dhs Needs To Address Dangerous Overcrowding Among Single Adults At El Paso Del Norte Processing Center (Redacted), John V. Kelly

United States Department of Homeland Security

During the week of May 6, 2019, we visited five Border Patrol stations and two ports of entry in the El Paso area, including greater El Paso and eastern New Mexico, as part of our unannounced spot inspections of CBP holding facilities. We reviewed compliance with CBP’s Transport, Escort, Detention and Search (TEDS) standards, which govern CBP’s interaction with detained individuals, and observed dangerous holding conditions at the El Paso Del Norte Processing Center (PDT) Border Patrol processing facility, located at the Paso Del Norte Bridge, that require immediate attention. Specifically, PDT does not have the capacity to hold the …

Is The United States Safely Repatriating Unaccompanied Children? Law, Policy, And Return To Guatemala, Karen S. Baker

University of Miami Law Review

The United States regularly removes unaccompanied immigrant children and returns them to their countries of origin, with numbers rising rapidly in recent years. The United States has moral and legal obligations to this group of children. Rooted in deep moral underpinnings, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires the government to establish policies and procedures to effectuate the safe repatriation of unaccompanied children. However, now more than a decade later, the U.S. government has failed to delineate its practices promoting safe return and, in addition to a general lack of transparency, the scant information available suggests …

Information Mischief Under The Trump Administration, Nathan Cortez

Chicago-Kent Law Review

The Trump administration has used government information in more cynical ways than its predecessors. For example, it has removed certain information from the public domain, scrubbed certain terminology from government web sites, censored scientists, manipulated public data, and used “transparency” initiatives as a pretext for anti-regulatory policies, particularly environmental policy. This article attempts to tease out an emerging “information policy” for the Trump administration, explain how it departs from the information policies of predecessors, and evaluate the extent to which both legal and non-legal mechanisms might constrain executive discretion.

Civil Servant Disobedience, Jennifer Nou

Chicago-Kent Law Review

Bureaucratic resistance is a historically unexceptional feature of the administrative state. What is striking is the extent to which it has become publicly defiant under the Trump Administration. Civil servants are openly defying executive directives in their official capacity, despite strong norms to the contrary. The social practice raises both parallels and contrasts to civil disobedience by private citizens; it thus similarly raises the need for sustained scholarly debate. This article seeks to isolate the phenomenon of civil servant disobedience conceptually and begin an exploration into its normative implications. In particular, it considers the ideal of a reciprocal hierarchy, whereby …

Regulatory Review In Anti-Regulatory Times, Daniel A. Farber

Chicago-Kent Law Review

This article investigates the role of cost-benefit analysis during an antiregulatory period. The period since 2016 has seen several new developments, including the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. This period also contains important examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of three …

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman

Cleveland State Law Review

History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to …

Deregulatory Splintering, William W. Buzbee

Chicago-Kent Law Review

When new administrations arrive and consider agency policy changes, they often must choose what actions to take in court or through regulatory process. They may seek to stay an existing regulation, rescind, or possibly replace it. This article assesses strategic uses of, and responses to, agencies that pursue deregulatory rollbacks through a splintered series of steps. Through such splintering, agencies sometimes seek to avoid direct apples-to-apples comparison of the baseline regulation and new proposal, also often squelching opportunities for comment. They may seek to achieve a deregulatory outcome without the full process, disclosure, and reason-giving that ordinarily must accompanying any …

The Regulatory Accountability Act And The Future Of Apa Revision, Ronald M. Levin

Chicago-Kent Law Review

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that …

New Asylum Limits: A Balancing Act For The Homeland Security Secretary, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the …

Bill Clinton, George W. Bush, And Immigration Policy: How 9/11 Transformed The Debate Over Illegal Immigration, Robert Nelsen

War, Diplomacy, and Society (MA) Theses

Since the terrorist attacks of September 11, 2001, Americans have been at war against some form of terrorism both at home and abroad. This includes abuses of federal immigration laws and policies that relate to legal and illegal immigration with Mexico. It is easily substantiated that thousands of Americans have died at the hands of illegal immigrants from Mexico through criminal activity in the United States or through illegal drug trafficking. This thesis considers whether the immigration policies of Presidents Bill Clinton and George W. Bush were at fault for not properly securing the border prior to these attacks. Specifically, …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volumes I And Ii (Redacted Version Of April 18, 2019), Robert S. Mueller Iii

United States Department of Justice: Publications

EXECUTIVE SUMMARY TO VOLUME I

RUSSIAN SOCIAL MEDIA CAMPAIGN

The Internet Research Agency (IRA) carried out the earliest Russian interference operations identified by the investigation–a social media campaign designed to provoke and amplify political and social discord in the United States. The IRA was based in St. Petersburg, Russia, and received funding from Russian oligarch Yevgeniy Prigozhin and companies he controlled. Priozhin is widely reported to have ties to Russian President Vladimir Putin [redacted]

In mid-2014, the IRA sent employees to the United States on an intelligence-gathering mission with instructions [redacted]

The IRA later used social media accounts and interest …

Don't Delete That Tweet: Federal And Presidential Records In The Age Of Social Media, Gabriel M. A. Elorreaga

St. Mary's Law Journal

Statutes governing preservation of presidential records must be adapted to accommodate presidents’ evolving use of social media accounts. The Freedom of Information Act is meant to promote government transparency, and subjects governmental agencies to information requests from members of the public. However, as it relates to social media records, the problem is one of volume; are the means of preservation currently in place able to adequately address the vast amount of records created by a President’s use of social media? This Comment argues that they are not, although they do provide a useful basis for how to adapt record preservation …

The Forgotten Unitary Executive Power: The Textualist, Originalist, And Functionalist Opinions Clause, Zachary J. Murray

Pace Law Review

This article will analyze the Opinion Clause’s text, its history and intent, and its potential functions as a power. Part II catalogues much of the prior scholarship on the Opinions Clause, which generally fits into two categories: the anti-unitary approach, which argues that a substantive reading of the Vesting Clause renders the Opinions Clause redundant, and the unitary response, which essentially accepts that redundancy. To some extent, both sides miss the mark. The unitary approach misreads the text, assigning great substantive weight to the descriptive Vesting Clause, while assigning descriptive status to the substantive Opinions Clause. The anti-unitary approach, on …