President/Executive Department Commons^™

Government Lies And The Press Clause, Helen Norton

Publications

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Publications

No abstract provided.

The Government's Manufacture Of Doubt, Helen Norton

Publications

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

The President Is The Chief Executive, But Does Not Control The Mueller Probe, Bruce Green, Rebecca Roiphe

Other Publications

No abstract provided.

Which Came First, The President Or The Lie?, David Schoenbrod

Other Publications

No abstract provided.

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Scholarly Works

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Immigration Enforcement And The Future Of Discretion, Shoba S. Wadhia

Roger Williams University Law Review

No abstract provided.

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Law Faculty Publications

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Presidents And War Powers, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given rise to two major questions about presidential war powers: first, what should be the president’s role in taking the country to war, and, second, what are the president’s powers to direct its conduct. Historian Michael Beschloss’s new book, “Presidents of War,” examines how presidents have responded to each of these questions across two hundred years of U.S. history.

The major argument of …

The Economic Justice Imperative For Lawyers In Trump Country, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This article serves as a call to action for rural law schools to meaningfully incorporate economic justice into transactional legal education, and in doing so, train much needed rural advocates, legal experts, and local leaders. Rural areas are continuously portrayed as “Trump Country” in today’s mainstream media coverage, which largely focuses on socio-cultural differences between urban and rural areas. Many rural scholars and activists are troubled by the “Trump Country” label as it masks the structural poverty issues that lead to housing insecurity, water insecurity, poor public health indicators, unemployment, underemployment, troubled public education systems, and environmental degradation impacting both …

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

Scholarly Articles in Law Reviews & Journals

No abstract provided.

May Federal Prosecutors Take Direction From The President?, Bruce Green, Rebecca Roiphe

Articles & Chapters

Suppose the president sought to serve as prosecutor-in-chief telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president's direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Representative/Senator Trump?, Gary S. Lawson

Faculty Scholarship

The American presidency is a much more powerful office in 2017 than was contemplated by the Constitution of 1788. In large measure, that is because Congress has unconstitutionally subdelegated many of its legislative powers to the President. The President thus effectively functions as the Congress to a significant degree, which not only perverts the constitutional structure but also significantly raises the stakes of presidential elections. There is no good reason to expect Congress or the courts to stem the tide of subdelegation. Presidents, however, have a number of tools available to resist, and even reverse, that tide. While there is …

A Law Professor’S Modest Response To Trumpism: Supervising Student Directed Research Papers On Impeachment, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This short essay discusses my motivation for and the reading materials and procedures I use when offering about a half-dozen law students each semester a Directed Research option to research and write papers on the topic of Presidential impeachment. I recommend that those faculty members who may have only a modest Constitutional Law background, but who feel as I do that greater understanding and more sustained discussion of the merits and drawbacks of removal of President Trump from office through impeachment is called for, and who wish to facilitate such understanding and discussion without compromising their professional and ethical obligations …

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

Trade, Redistribution, And The Imperial Presidency, Timothy Meyer

Faculty Scholarship

No abstract provided.

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.