President/Executive Department Commons^™

Uneasy Lies The Hand That Clicks The Mouse: Presidential Power And Wikileaks, Andrew Pekoe

Florida A & M University Law Review

No abstract provided.

Limiting A Limitless Defense: A Case For Reviving The State Secrets Protection Act, 44 J. Marshall L. Rev. 1003 (2011), Andrew Burtless

UIC Law Review

No abstract provided.

Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway

Michigan Law Review

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

An Elucidating Response To Erroneous Outrage: Why Continued Law Of War Detention Under Executive Order 13,567 Is Legal, Jenny Liabenow

Florida A & M University Law Review

No abstract provided.

An Unintended Casualty Of The War On Terror, Aya Gruber

Publications

As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …

Foreign Official Immunity After Samantar: A United States Government Perspective, Harold H. Koh

Vanderbilt Journal of Transnational Law

I am delighted to speak here at Vanderbilt regarding the U.S. Government's perspective on Foreign Official Immunity after Samantar v. Yousuf.' In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court's …

Head Of State Immunity As Sole Executive Lawmaking, Lewis S. Yelin

Vanderbilt Journal of Transnational Law

At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts' practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch's practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President's constitutional responsibility as the only authorized representative of the United States in its …

Choosing Justices: How Presidents Decide, Joel K. Goldstein

All Faculty Scholarship

Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …

M.B.Z. V. Clinton: Whither Jerusalem?, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

A Presidency Upstaged: The Public Leadership Of George Bush, Joseph V. Hughes Jr. And Holly O. Hughes, Lori Cox Han

Political Science Faculty Books and Book Chapters

A president who distances himself from stagecraft will find himself upstaged. George H. W. Bush sought to “stay the course” in terms of policy while distancing himself from the public relations strategies employed during the administration of Ronald Reagan, his predecessor. But Bush discovered during his one-term presidency that a strategy of policy continuity coupled with mediocre communication skills “does not make for a strong public image as an effective and active leader in the White House", as author and scholar Lori Cox Han demonstrates in A Presidency Upstaged.

Incorporating extensive archival research from the George Bush Presidential Library at …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

Challenging Supremacy: Virginia's Response To The Patient Protection And Affordable Care Act, Matthew R. Farley

University of Richmond Law Review

No abstract provided.

Presidents, Preemption, And The States, Michele E. Gilman

All Faculty Scholarship

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a …

Once More Unto The Breach: American War Power And A Second Legislative Attempt To Ensure Congressional Input, Jonathan T. Menitove

University of Michigan Journal of Law Reform

Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to …

In Defense Of The Post-Partisan President: Toward The Boundary Between "Partisan" Advantage And "Political" Choice, David C. Weiss

Brigham Young University Journal of Public Law

No abstract provided.

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Slides: Energy Development Water Needs Assessment And Water Supply Alternatives And Analysis, Benjamin Harding

The Promise and Peril of Oil Shale Development (February 5)

Presenter: Benjamin Harding, Principal Engineer, AMEC Earth and Environmental

15 slides