President/Executive Department Commons^™

Amnesty Now! Ending Prison Overcrowding Through A Categorical Use Of The Pardon Power, Jonathan Simon

University of Miami Law Review

America’s practice of mass incarceration is coming under growing criticism as fiscally unsustainable and morally indefensible. Chronic overcrowding of prisons, a problem that epitomizes the destructive and unlawful core of mass incarceration, now afflicts the federal prison system and nearly half the states. Actual reforms, however, like President Obama’s recent grant of clemency to forty-six federal prisoners serving long drug sentences for non-violent conduct, or recent one-off sentencing reforms aimed at preventing imprisonment for minor drug or property crimes, are manifestly insufficient to end mass incarceration, or even the chronic overcrowding that represents its most degrading and destructive aspect. The …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Chicago-Kent Law Review

The conventional wisdom, backed by legitimacy research, is that majority of people obey most of the laws, most of the time. This turns out to not be the case in a study of state and local participation in immigration law enforcement. In the five years following initiation of the Secure Communities program, through which the federal government requests that local law enforcement agencies hold immigrants beyond their scheduled release upon suspicion that they are removable, a significant and growing number of states and localities have declined to cooperate with federal immigration detainer requests—ultimately leading to the demise of the Secure …

Obama's National Security Exceptionalism, Sudha Setty

Chicago-Kent Law Review

The label of national security exceptionalism fits the Obama administration in two ways: first, although the administration has actively sought to address and improve the protection of human rights and civil rights of racial minorities suffering disparate negative treatment in a variety of contexts, those moves toward rights protection generally do not extend to the realm of counterterrorism abuses, although almost all of those who have suffered from violations of human and civil rights in the post-9/11 counterterrorism context are racial and/or religious minorities. One of the justifications for this exceptionalism is based on the widespread view that national security …

Feminist-In-Chief? Examining President Obama's Executive Orders On Women's Rights Issues, Mary Pat Treuthart

Chicago-Kent Law Review

This article focuses on President Obama’s use of executive orders in various areas of women’s rights issues including the empowerment of women, gender-based violence, reproductive rights, and employment. As scholars of the American presidency have noted, executive orders can be used either as strategic tools to short-circuit legislative gridlock or to underscore and complement presidential policy measures pending in Congress. Executive orders can also serve to promote projects of special interest groups. Finally, knowing that their directives can be powerfully symbolic, presidents can be particularly effective in the use of executive action to underscore the gulf between the Democratic Party …

Reviving The Environmental Justice Agenda, Rachael E. Salcido

Chicago-Kent Law Review

During his 2008 campaign, President Obama pledged that his administration would put an emphasis on environmental justice, outlining a strategy to address the unequal burden of pollution in low-income, minority and indigenous communities. Though many criticize some of the shortcomings, such as inadequate pursuit of civil rights remedies, the administration has followed through to supply some of the most critical components of solutions to the environmental justice challenge: leadership, capacity, collaboration-in-fact, and funding. This article will examine the reinvigorated Inter-Agency Working Group on Environmental Justice, the roadmaps prepared to address EJ, and significant rules and guidance enacted by the EPA …

Presidential Legitimacy Through The Anti-Discrimination Lens, Catherine Y. Kim

Chicago-Kent Law Review

The Obama administration’s deferred action programs granting temporary relief from deportation to undocumented immigrants have focused attention to questions regarding the legitimacy of presidential lawmaking. Immigration, though, is not the only context in which the president has exercised policymaking authority. This essay examines parallel instances of executive lawmaking in the anti-discrimination area. Presidential policies relating to workplace discrimination, environmental justice, and affirmative action share some of the key features troubling critics of deferred action yet have been spared from serious constitutional challenge. These examples underscore the unique challenges to assessing the validity of actions targeting traditionally disenfranchised groups—be they noncitizens, …

The Executive Power Of Process In Immigration Law, Jill E. Family

Chicago-Kent Law Review

This article, part of an AALS symposium on executive power during the Obama administration, focuses on the role of procedure in the president’s implementation of immigration law. The president undeniably has power over immigration law, but the exact contours of that power are not clear. At times, the president acts via delegation from Congress. The president also may have inherent power over immigration law that is not dependent on a delegation. Such inherent power would be subject to the president’s discretion. Even when acting pursuant to delegated immigration power, the president operates within a wide ring of discretion granted by …

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari M. Osofsky, Jacqueline Peel

Chicago-Kent Law Review

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes—often in interaction with litigation—has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants.

Although many observers critique this state of affairs and wish for a legislature more able to act, this essay argues that more …

Originalism And The Executive, Neil Kinkopf

Faculty Publications By Year

No abstract provided.

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Scholarly Articles

Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive …

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

Is The Uniform Faithful Presidential Electors Act Constitutional?, Robert J. Delahunty

Cardozo Law Review de•novo

My topic is both timely and perennial: The Electoral College. More specifically, I will first discuss the constitutional problem known as the “Faithless Elector” and, then, I will attempt to solve such problem. My proposed solution is the Uniform Faithful Presidential Electors Act (UFPEA), a statute that several states have adopted.

International Law Constraints As Executive Power, Rebecca Ingber

Faculty Scholarship

The use of international law to understand domestic authority has a long pedigree. It is also the subject of heated debate, which focuses predominantly on the extent to which international law can or should serve as a limit on political actors, in particular the President, and the extent to which it can be invoked to expand our understanding of domestic individual rights. Yet there is another significant dynamic at work in this interplay between international and domestic law. This is the invocation of international law not as a constraining force on government actors, but as an enabling force within the …

Congressional Dysfunction And Executive Lawmaking During The Obama Administration, Raquel Aldana

McGeorge School of Law Scholarly Articles

No abstract provided.

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Articles

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …

A Bipartisan Tax Reform?, Reuven S. Avi-Yonah

Articles

A Bipartisan Tax Reform?By Reuven S. Avi-YonahIf one listens to what Democratic and Republicancandidates for president are saying on the cam-paign trail, it would appear that the chances for taxreform in 2017 and beyond are minimal. A biparti-san approach is essential for tax reform to passbecause even if there are majorities from the presi-dent’s party in both houses, major tax reform wouldnot likely get through the Senate without 60 votes.But the parties seem very far apart on tax reform.Democrats are focused on using the tax system toreduce inequality and are determined to raise thetax rates at the top of the …

Confronting Power In Public Law, Kate Andrias

Articles

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump, Peter Linzer

St. Mary's Law Journal

Remarks of Peter Linzer on receiving the Lifetime Achievement Award from the 11th International Contracts Conference (K-CON XI). Revised after Election Day, 2016.

Herbert Hoover And The Constitution, John Q. Barrett

Faculty Publications

Herbert Clark Hoover, first an international businessman, a global hero during World War I, and then a cabinet officer under Presidents Harding and Coolidge, was elected president in 1928. The next year, as President Hoover embarked on his progressive agenda for the country, the Roaring Twenties ended, crashingly, in the Great Depression. Hoover responded inadequately, constrained more by his own beliefs in volunteerism than by constitutional limits on his powers. His failure to relieve public suffering overshadowed his presidential accomplishments, including innovative government programs and three Supreme Court appointments.