Partisan Balance Requirements In The Age Of New Formalism,
2015
University of Alabama School of Law
Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski
Notre Dame Law Review
This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and “good cause” limitations on the President’s removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President’s appointment power—and with good reason, given the ubiquity of partisan balance requirements and the executive branch’s historical acquiescence to them. However, the Supreme Court’s decision in Free …
Waste And Duplication In Nasa Programs: The Need To Enhance U.S. Space Program Efficiency,
2015
Purdue University
Waste And Duplication In Nasa Programs: The Need To Enhance U.S. Space Program Efficiency, Bert Chapman
Libraries Faculty and Staff Scholarship and Research
The U.S. Government faces acute budgetary deficits and national debt problems in the Obama Administration. These problems have been brought about by decades of unsustainable government spending affecting all agencies including the National Aeronautics and Space Administration. (NASA). An outgrowth of this fiscal profligacy is the presence of wasteful and duplicative programs within NASA that prevent this agency from achieving its space science and human spaceflight objectives. These problems occur due to mismanagement of these programs from NASA and the creation of these programs by the U.S. Congress and congressional committees. This occurs because congressional appropriators tend to be more …
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power,
2015
Brigham Young University, J. Reuben Clark Law School
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
Notre Dame Law Review
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power—Justice Jackson’s tripartite framework and the historical gloss on executive power—congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …
Qualified Immunity, Constitutional Stagnation, And The Global War On Terror,
2015
Northwestern Pritzker School of Law
Qualified Immunity, Constitutional Stagnation, And The Global War On Terror, Sarah L. Lochner
Northwestern University Law Review
No abstract provided.
The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments,
2015
Northwestern Pritzker School of Law
The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam
Northwestern University Law Review
No abstract provided.
Democratic Rulemaking,
2015
Duke Law School
Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz
Faculty Scholarship
This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.
Immigration Policy And The Rhetoric Of Reform: “Deport Felons, Not Families,” Moncrieffe V. Holder, Children At The Border, And Idle Promises,
2015
Barry University
Immigration Policy And The Rhetoric Of Reform: “Deport Felons, Not Families,” Moncrieffe V. Holder, Children At The Border, And Idle Promises, Terri R. Day, Leticia M. Diaz
Faculty Scholarship
No abstract provided.
Under Containment: Preempting State Ebola Quarantine Regulations,
2015
Barry University
Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov
Faculty Scholarship
No abstract provided.
Military Tribunals And Due Process In Post-Revolutionary Egypt,
2015
Southern Methodist University
Military Tribunals And Due Process In Post-Revolutionary Egypt, Bianca C. Isaias
The International Lawyer
No abstract provided.
Reverse Nullification And Executive Discretion,
2015
Barry University
Reverse Nullification And Executive Discretion, Michael T. Morley
Faculty Scholarship
No abstract provided.
The New Era Of Presidential Immigration Law,
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
The New Era Of Presidential Immigration Law, Michael Kagan
Scholarly Works
At the dawn of the Obama Administration, Professors Adam Cox and Cristina Rodríguez wrote: “[T]he inauguration of a new President can bring with it remarkable changes in immigration policy.” At the time they wrote that, this proposition was in some ways more a matter of advocacy than a description of reality. As we approach the election of a new president in 2016, we finally live in the world that Professors Cox and Rodríguez advocated. The election of a new President will likely carry significant immediate consequences for immigration policy. My goal in this short space will be to focus on …
Intelligence Legalism And The National Security Agency’S Civil Liberties Gap,
2015
University of Michigan Law School
Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger
Articles
Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …
Taxation And Surveillance: An Agenda,
2015
University of Washington School of Law
Taxation And Surveillance: An Agenda, Michael Hatfield
Articles
Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …
The Commander In Chief's Authority To Combat Climate Change,
2015
Emory University School of Law
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Faculty Articles
This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …
Judicial Selection In Congress' Lame Duck Session,
2015
University of Richmond
Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias
Law Faculty Publications
This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.
Filling The Federal Appellate Court Vacancies,
2015
University of Richmond
Filling The Federal Appellate Court Vacancies, Carl W. Tobias
Law Faculty Publications
Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …
Filling The D.C. Circuit Vacancies,
2015
University of Richmond
Filling The D.C. Circuit Vacancies, Carl W. Tobias
Law Faculty Publications
This Article's initial section posits a D.C. Circuit snapshot. Part II surveys all three prospects' confirmations. Part III assesses consequences of, and extracts lessons from, the specific processes recounted. Part IV proffers suggestions for improvement.
The Uncertain Effects Of Senate Confirmation Delays In The Agencies,
2015
University of Michigan Law School
The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson
Articles
As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …
Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards,
2015
University of Michigan Law School
Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson
Articles
In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock …
Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America,
2015
University of Colorado Law School
Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America, S. James Anaya
Publications
No abstract provided.
