President/Executive Department Commons^™

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 …

George Washington’S Attorneys: The Political Selection Of United States Attorneys At The Founding, Scott Ingram

Pace Law Review

This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 …

The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown

Pepperdine Law Review

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the …

Presidential Factfinding, Shalev Roisman

Vanderbilt Law Review

The modern President possesses enormous power. She can use military force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the "national interest," perhaps that it will preserve "regional stability" or protect American lives. To impose …

Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski

Washington International Law Journal

The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of …

Executive Overreaching In Immigration Adjudication, Fatma Marouf

Faculty Scholarship

While Presidents have broad powers over immigration, they have traditionally shown restraint when it comes to influencing the adjudication of individual cases. The Trump Administration, however, has pushed past such conventional constraints. This Article examines executive overreaching in immigration adjudication by analyzing three types of interference. First, the Article discusses political interference with immigration adjudicators, including politicized appointments of judges, politicized performance metrics, and politicized training materials. Second, the Article addresses executive interference with the process of adjudication, examining how recent immigration decisions by former Attorney General Jeff Sessions curtail noncitizens’ procedural rights instead of making policy choices and promote …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Legal Dilemmas Facing White House Counsel Int He Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Unenumerated Power And The Rise Of Executive Primacy, Cheng-Yi Huang

Washington International Law Journal

This article argues that contemporary syndromes of constitutional dysfunction do not solely stem from the failures of the controlling executive power. Rather, the tendency of chief executives’ appropriation of power is largely due to the fact that the institutional logic of executive power makes them do so. To govern, the chief executive needs to run the government with power, either political or constitutional. These powers are not always enumerated in the constitution, but would still be regarded as constitutional. This paper argues that the idea of taming unenumerated executive powers by definite constitutional language and text is mostly futile. Drawing …

"Never Before In The History Of This Country?": The Rise Of Presidential Power In The Lula Da Silva And Rousseff Administrations (2003-2016), Mauro Hiane De Moura

Washington International Law Journal

After the impeachment of President Collor de Mello (1990-1992), Brazil finally managed to devise and implement an economic plan that, firmly based on economic science, eradicated the country's long-standing hyperinflation. In the following Cardoso Administration (1995-2002), new regulatory frameworks were introduced in several different sectors—the implementation and oversight of which were entrusted to Regulatory Agencies relatively insulated from the Presidency. Such a model, however, came under attack under the Lula da Silva (2003-2010) and Rousseff (2011-2016) Administrations, ultimately leading to high levels of inflation, a severe recession, and the escalation of public deficit. This article indicates how, during the Lula …

The Changing Nature Of Bureaucracy And Governing Structure In Japan, Mayu Terada

Washington International Law Journal

This paper analyzes and criticizes changes in the relationship between politics and the bureaucracy, in Japan up to the present from the viewpoint of administrative organizations and related public law system. Drastic changes in the legal system, or legal reform, may sometimes undermine the true intention of the policy and its implementation. Thus, bringing political leadership in administrative decision-making bodies cannot be easily concluded as better or worse than the complete separation of administration and government. To analyze this matter in detail, this paper looks at the following points: 1) Analysis of the operation of the limited political appointment system …

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Washington International Law Journal

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …

Trump V. International Refugee Assistance Program, Jeremy Martin

Ohio Northern University Law Review

No abstract provided.

Conserving A Vision: Acadia, Katahdin, And The Pathway From Private Lands To Park Lands, Sean Flaherty, Anthony L. Moffa

Maine Law Review

Although a century separates the official designations, the strategies required to ensure federal protection of Maine’s two National Park Service areas—Acadia National Park and Katahdin Woods and Waters National Monument—closely track one another. In both cases, a handful of enterprising conservationists shared the vision for conservation. Both areas depended on the private acquisition, and donation, of title to the numerous parcels that comprised them before the land could garner federal protection. Politics in the early 20th and 21st centuries had to be overcome. This work tells the stories in parallel, highlighting and analyzing four strands of similarity to not only …

Immigration Detention: Perspectives From Maine Law Students Working On The Ground At The Laredo Detention Center In Texas, Joann Bautista, Katie J. Bressler, Nora R. Bosworth

Maine Law Review

Since 2017, students enrolled in the University of Maine School of Law Refugee and Human Rights Clinic have traveled to Laredo, Texas to participate in a program, sponsored and run by the law firm Jones Day in collaboration with Texas RioGrande Legal Aid, to provide representation for women in the Laredo Detention Center. Alongside Jones Day attorneys, the students conduct client intake interviews, draft memos detailing each woman’s experiences and any potential legal claims, and assist in the representation of clients. This article will provide a glimpse into the experiences of three Maine Law student attorneys during their time in …

Withdrawing From Nafta, Alison Peck

Faculty & Staff Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

A Presidential Power Of Monumental Proportions: Does The Antiquities Act Permit The Review And Revision Of National Monuments Or Can The President Steal Your Land?, Maureen A. Mccotter

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Prosecuting The Executive, Tiffany R. Murphy

San Diego Law Review

A special counsel is appointed to investigate and potentially prosecute any criminal activity involving those in the Executive Branch. When an attorney general makes such a decision, the individual should consider not only the scope of the appointment but whether the special counsel will protect the fundamental rules of law upon which the Constitution rests; no one person is above the law. Recent history illustrates the abuses of the special prosecutor’s role where it was used as a political weapon or for low level officials. Instead, a special counsel should be used only when the crisis is severe enough that …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.