DOCSLIB.ORG

The President's Power to Execute the Laws

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

Article The President's Power To Execute the Laws Steven G. Calabresit and Saikrishna B. Prakash" CONTENTS I. M ETHODOLOGY ............................................ 550 A. The Primacy of the Constitutional Text ........................ 551 B. The Source of Confusion Regarding Originalisin ................. 556 C. More on Whose Original Understanding Counts and Why ........... 558 II. THE TEXTUAL CASE FOR A TRINITY OF POWERS AND OF PERSONNEL ...... 559 A. The ConstitutionalText: An Exclusive Trinity of Powers ............ 560 B. The Textual Case for Unenunterated Powers of Government Is Much Harder To Make than the Case for Unenumnerated Individual Rights .... 564 C. Three Types of Institutions and Personnel ...................... 566 D. Why the Constitutional Trinity Leads to a Strongly Unitary Executive ... 568 Associate Professor, Northwestern University School of Law. B.A.. Yale University, 1980, 1 D, Yale University, 1983. B.A., Stanford University. 1990; J.D.. Yale University, 1993. The authors arc very grateful for the many helpful comments and suggestions of Akhil Reed Amar. Perry Bechky. John Harrison, Gary Lawson. Lawrence Lessig, Michael W. McConnell. Thomas W. Merill. Geoffrey P. Miller. Henry P Monaghan. Alex Y.K. Oh,Michael J.Perry, Martin H. Redish. Peter L. Strauss. Cass R.Sunstein. Mary S Tyler, and Cornelius A. Vermeule. We particularly thank Larry Lessig and Cass Sunstein for graciously shanng with us numerous early drafts of their article. Finally. we wish to note that this Article is the synthesis of two separate manuscripts prepared by each of us in response to Professors Lessig and Sunstei. Professor Calabresi's manuscript developed the originalist textual arguments for the unitary Executive, and Mr Prakash's manuscript developed the pre- and post-ratification histoncal arguments. We are deeply grateful to Akhil Reed Amar for encouraging us to collaborate and to the editors of TieYale Law Journal for allowing us to present jointly our mutually reinforcing arguments for the unitary Executive here 542, The Yale Law Journal [Vol. 104: 541 III. THE TEXTUAL CASE FOR THE UNITARY EXECUTIVE .................... 570 A. The Vesting Clauses as Power Grants ......................... 570 1. The Analogy Between the Vesting Clauses of Article II and Article III ....................................... 570 2. The Plain Meanings of the Verbs "Vest" and "Extend" ........... 572 3. There Is No Implicit "Herein Granted" in Article iHs Vesting Clause ....................................... 574 4. Reading the Vesting Clause of Article I To Be a Power Grant Does Not Make the Rest of Article 11 Superfluous ............. 576 5. The Minimalist Plain Meaning of Executive Power ............ 579 B. The President's ConstitutionalGrant of the Executive Power Is Exclusive: It Is Not Concurrently Shared with the Congress ................. 581 C. The Take Care and the Opinions Clauses ...................... 582 D. The Militia Clauses and Execution ........................... 585 E. The Relevance of the Necessary and Proper Clause ............... 586 1. The Relevance of the Word "Proper"........................ 587 2. The Relevance of "Carrying into Execution"................... 588 3. There Is No Special Relationship Between the Take Care and the Necessary and Proper Clauses ..................... 589 4. The Real Purpose of the Clause .......................... 590 5. Creating Offices and Cabinet Departments .................. 592 F The President'sPower To Execute the Laws: Three Constitutionally Necessary Mechanisms To Control Inferior Executive Officers ........ 593 G. Summary of the Textual Argument of Parts H and III .............. 599 IV. SOME PRE-FRAMING HISTORICAL CONTEXT: THE CONTINENTAL CONGRESS' EXECUTIVE POWER ......................................... 599 V. THE PRE-RATIFICATION UNDERSTANDING OF THE PRESIDENT'S ROLE IN THE ADMINISTRATION OF FEDERAL LAW .......................... 603 A. The Executive Power Clause and the Administrative Power .......... 604 1. Political Theorists: Locke, Blackstone, and Montesquieu ........ 605 2. Evidence from State Constitutions ........................ 607 3. The PhiladelphiaConvention ............................ 607 4. The Public Ratification Debates .......................... 610 5. Lessig and Sunstein 's HistoricalArguments for Not Treating the Vesting Clause of Article II as a Vesting Clause ............ 612 6. Administration and the Chief Administrator ................. 614 B. The Take Care Clause ..................................... 616 1. The State Ratification Debates ........................... 617 2. The Public Debate Outside the Conventions ................. 618 3. The Limits of the Take Care Clause ........................ 620 19941 The President's Power C. The Necessary and Proper Clause ........................... 622 1. The Clause Is About Providing the Means To Effectuate Powers of the Three Branches ................................ 623 2. Limitations on the Use of the Clause ..................... 624 3. Prescient Warnings About the Possibilities of Abuse ............ 624 4. Are We Still Under the Articles of Confederation?.............. 625 D. The Opinions Clause, PrincipalOfficers, and Department Heads ...... 626 1. The Two Interpretationsof the Opinions Clause .............. 626 2. The Flaws of the Radical Reading ....................... 627 3. The Defects of the Less Radical Reading ................... 631 4. The True Meaning of the Clause ......................... 633 E. A Review of the Pre-Ratification Original Understanding of the Constitution ....................................... 635 VI. POST-RATIFICATION UNDERSTANDINGS OF THE PRESIDENT'S ADMINISTRATIVE ROLE ....................................... 635 A. Washington 's Administrative Understanding ..................... 637 1. The Chief Executive and Other Federal Executives ............ 637 2. The Federal Chief Executive and the State Executives .......... 639 B. A Conflicted Congress' Views Regarding PresidentialAdministration: Early Removal Debates .................................... 642 C. Administrative Practice Under Certain Statutes .................. 646 1. Was Treasury an Executive Department? ................... 647 2. Post Offices and the President ........................... 655 3. The ProsecutorialPower and the President .................. 658 D. Some Final Thoughts on Post-Ratification Views of the President:s Administrative Role ....................................... 661 VII. CONCLUSION ............................................. 663 Conventional wisdom insists that the Framers believed in a hierarchical executive branch, with the President in charge of all administration of the laws.... There is no historically sound reading of the Constitution that compels anything like [this] claim. Any faithful reader of history must conclude that the unitary executive, conceived in the foregoing way, is just myth.' Lawrence Lessig and Cass Sunstein 1. Lawrence Lessig & Cass R. Sunstein. The President and the Administration. 94 COLUM. L R-Ev. 1, 4 (1994) (emphasis added). The Yale Law Journal [Vol. 104: 541 If the Constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority. I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.' James Madison One of the oldest debates in American constitutional law has concerned the scope of Congress' alleged "power" to carve up the executive department of the federal government into minifiefdoms independent of presidential control. From the Decision of 1789 to the controversy over the Tenure in Office Act, down through recent Supreme Court opinions, Presidents, members of Congress, judges, and scholars have disagreed over whether Article II of the U.S. Constitution, as originally understood, creates a strongly "unitary" Executive. After two hundred years, no scholarly or judicial consensus has yet emerged on this vital question of the proper scope of presidential power. That such a question should remain unresolved for so long is in some ways quite odd. The claim made by unitary executivists that the Constitution creates only three branches of government and that the President must be able to control the execution of all federal laws is easily understood and resonates strongly with the very earliest lessons we learn about our constitutional system. In grade school, we are taught that our nation's laws are made by the Congress, executed by the President, and adjudicated in specific cases by the federal courts. By junior or senior high school, when we are first introduced to the constitutional text, we quickly learn that it vests certain legislative powers with the Congress, the executive power with the President, and the judicial power with the Supreme Court and inferior federal courts. At some point along the way, many of us put two and two together and conclude that the Congress' grants of legislative powers must enable it to legislate, the President's grant of the executive power must enable him to execute all federal laws, and the federal judiciary's grant of the judicial power must enable the federal courts to decide certain cases and controversies. It is thus perhaps a bit surprising to arrive at law school and discover that this "high school civics" conception of the separation of powers, particularly presidential control over execution of the laws, has for some
Recommended publications
  • On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    No. 20-331 IN THE SUPREME COURT OF THE UNITED STATES IN RE DONALD J. TRUMP On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Motion for Leave to File Brief and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae Supporting Petitioner ROBERT W. RAY JOSH BLACKMAN Counsel of Record 1303 San Jacinto Street Zeichner Ellman & Krause LLP Houston, TX 77002 1211 Avenue of the Americas, 40th Fl. 202-294-9003 New York, New York 10036 [email protected] (212) 826-5321 [email protected] JAN I. BERLAGE CARRIE SEVERINO Gohn Hankey & Berlage LLP Judicial Education Project 201 N. Charles Street, Suite 2101 722 12th St., N.W., 4th Fl. Baltimore, Maryland 21201 Washington, D.C. 20005 (410) 752-1261 (571) 357-3134 [email protected] [email protected] October 14, 2020 Motion for Leave to File Brief as Amici Curiae Supporting Petitioner Amici curiae Scholar Seth Barrett Tillman and the Judicial Education Project respectfully move for leave to file a brief explaining why this Court should grant certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit. Notice of intent to file this brief was provided to Respondents on October 6, 2020 with less than ten days’ notice. Respondents granted consent that same day. Notice of intent to file this brief was provided to Petitioner on October 8, 2020, six days before the filing deadline. The Petitioner did not respond to Amici’s request for consent. These requests were untimely under Supreme Court Rule 37(a)(2).
  • Articles the Unitary Executive and the Plural Judiciary

    Articles the Unitary Executive and the Plural Judiciary

    \\jciprod01\productn\N\NDL\89-3\NDL301.txt unknown Seq: 1 17-FEB-14 14:19 ARTICLES THE UNITARY EXECUTIVE AND THE PLURAL JUDICIARY: ON THE POTENTIAL VIRTUES OF DECENTRALIZED JUDICIAL POWER Ronald J. Krotoszynski, Jr.* ABSTRACT The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exer- cise of federal judicial power. The role of the state courts in enforcing federal law further subdi- vides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentral- © 2014 Ronald J. Krotoszynski, Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * John S. Stone Chair, Director of Faculty Research, and Professor of Law, University of Alabama School of Law. This Article reflects the benefit of the thoughtful and constructive suggestions of the law faculties at the Cornell Law School, Indiana University- Bloomington Maurer School of Law, Loyola University-Los Angeles School of Law, Pepperdine University School of Law, University of Missouri-Columbia School of Law, and Tulane University School of Law, which all hosted faculty workshops associated with this project.
  • The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis

    The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis

    GEORGIA LAW REVIEW VOLUME 46 FALL 2011 NUMBER 1 ARTICLES THE JUDICIAL POWER AND THE INFERIOR FEDERAL COURTS: EXPLORING THE CONSTITUTIONAL VESTING THESIS A. Benjamin Spencer* TABLE OF CONTENTS I. INTRODUCTION ............................... ........ 2 II. THE PLAN OF THE CONVENTION ......................... 6 A. THE DEBATES IN THE FEDERAL CONVENTION OF 1787.......7 B. THE DEBATES IN THE STATE CONVENTIONS ............. 14 C. THE FEDERALIST PAPERS...........................24 III. THE TRADITIONAL VIEW OF THE JUDICIAL POWER...............36 A. THE UNDERSTANDING OF CONGRESS ................... 37 B. THE VIEW OF THE COURT. ........................... 42 IV. A POSSIBLE ALTERNATIVE VIEW OF THE JUDICIAL POWER ..................................... 46 V. CONCLUSION ........................................ 66 * Visiting Professor, University of Virginia School of Law; Professor of Law, Washington & Lee University School of Law. I am thankful to the University of Virginia for its generous grant assistance that supported my work on this Article. Thanks also go to Michael Collins and Caprice Roberts for their helpful comments and suggestions. 1 2 GEORGIA LAWREVIEW [Vol. 46:1 The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.' I. INTRODUCTION Although the Constitution vests the "[J]udicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, 2 both Congress3 and the Court4 have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power.5 Is this view fully consonant with the I THE FEDERALIST No. 48, at 279 (James Madison) (Am. Bar Ass'n 2009). 2 U.S. CONST. art.
  • Nondelegation and the Unitary Executive

    Nondelegation and the Unitary Executive

    NONDELEGATION AND THE UNITARY EXECUTIVE Douglas H. Ginsburg∗ Steven Menashi∗∗ Americans have always mistrusted executive power, but only re- cently has “the unitary executive” emerged as the bogeyman of Amer- ican politics. According to popular accounts, the idea of the unitary executive is one of “presidential dictatorship”1 that promises not only “a dramatic expansion of the chief executive’s powers”2 but also “a minimum of legislative or judicial oversight”3 for an American Presi- dent to exercise “essentially limitless power”4 and thereby to “destroy the balance of power shared by our three co-equal branches of gov- ernment.”5 Readers of the daily press are led to conclude the very notion of a unitary executive is a demonic modern invention of po- litical conservatives,6 “a marginal constitutional theory” invented by Professor John Yoo at UC Berkeley,7 or a bald-faced power grab con- jured up by the administration of George W. Bush,8 including, most ∗ Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. ∗∗ Olin/Searle Fellow, Georgetown University Law Center. The authors thank Richard Ep- stein and Jeremy Rabkin for helpful comments on an earlier draft. 1 John E. Finn, Opinion, Enumerating Absolute Power? Who Needs the Rest of the Constitution?, HARTFORD COURANT, Apr. 6, 2008, at C1. 2 Tim Rutten, Book Review, Lincoln, As Defined by War, L.A. TIMES, Oct. 29, 2008, at E1. 3 Editorial, Executive Excess, GLOBE & MAIL (Toronto), Nov. 12, 2008, at A22. 4 Robyn Blumner, Once Again We’ll Be a Nation of Laws, ST.
  • Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States? Steven G

    Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States? Steven G

    Notre Dame Law Review Volume 94 | Issue 1 Article 2 11-2018 Individual Rights Under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States? Steven G. Calabresi Northwestern Pritzker School of Law James Lindgren Northwestern Pritzker School of Law Hannah M. Begley Stanford Law School Kathryn L. Dore Northwestern Pritzker School of Law Sarah E. Agudo Northwestern Pritzker School of Law Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the State and Local Government Law Commons Recommended Citation 94 Notre Dame L. Rev. 49 (2018). This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\94-1\NDL102.txt unknown Seq: 1 21-NOV-18 10:57 INDIVIDUAL RIGHTS UNDER STATE CONSTITUTIONS IN 2018: WHAT RIGHTS ARE DEEPLY ROOTED IN A MODERN-DAY CONSENSUS OF THE STATES? Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo* INTRODUCTION .................................................. 51 R I. METHODOLOGY ........................................... 53 R II. THE DATA ON THE STATE CONSTITUTIONS ................. 54 R A. Rights Bearing on Religion ............................. 54 R 1. Establishment Clauses ............................ 54 R 2. Free Exercise Clauses ............................ 62 R © 2018 Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
  • Constitutional Administration

    Constitutional Administration

    Constitutional Administration Ilan Wurman* Administrative law rests on two fictions. The first, the non-delegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes “looks” legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose vesting clauses permit only Congress to make law and the President only to execute the law. For the sake of constitutional appearances, this formalist reading requires us to accept as a matter of practice not only unconstitutional delegation, but also an unconstitutional violation of separation of powers, while pretending that neither violation is occurring as a matter of doctrine. This Article argues that we ought to accept the delegation of legislative power because doing so can help remedy the undermining of the separation of powers. It seeks to make one functionalist move in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. Accepting delegation allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a properly conceived legislative veto is constitutional. This Article seeks to take both formalism and functionalism more seriously. Modern formalism has merely served to mask the administrative state’s unconstitutional foundations by pretending they do not exist. Functionalism, for its part, has failed to offer limiting principles and has aimed largely at justifying modern administrative practices without much concern for constitutionalism at all.
  • History and Structure of Article Iii

    History and Structure of Article Iii

    THE HISTORY AND STRUCTURE OF ARTICLE III DANIEL J. MELTZERt In his present article and two that preceded it,' Akhil Amar takes issue with what has come to be regarded as the traditional view of article III-that Congress has plenary authority over federal court jurisdiction. According to that view, Congress may deprive the lower federal courts, the Supreme Court, or all federal courts of jurisdic- tion over any cases within the federal judicial power, excepting only 2 those few that fall within the Supreme Court's original jurisdiction. Amar's powerful challenge to this tradition resembles two other t Professor of Law, Harvard University. A.B. 1972, J.D. 1975, Harvard University. I am grateful to Dick Fallon, Willy Fletcher, Gerry Gunther, and David Shapiro for their encouragement and perceptive comments, and to Matt Kreeger and Sylvia Quast for helpful suggestions and tireless research assistance. Special thanks go to Akhil Amar, whose careful and probing criticism saved me from errors and clarified my own thinking, even though he did not quite convert me. 1 See Amar, Marbury, Section 13, and the OriginalJurisdiction of the Supreme Court, 56 U. CHI. L. REv. 443 (1989) [hereinafter Amar, OriginalJurisdiction]; Amar, A Neo- FederalistFiew ofArticle III: Separatingthe Two Tiers of FederalJurisdiction,65 B.U.L. REv. 205 (1985) [hereinafter Amar, Neo-Federalist View]. 2 See, e.g., Bator, CongressionalPower Over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1030-31 (1982); Gunther, Congressional Power to Curtail Federal CourtJurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 901- 10 (1984); Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 VILL.
  • Report to the Attorney General Economic Liberties Protected by the Constitution

    Report to the Attorney General Economic Liberties Protected by the Constitution

    If you have issues viewing or accessing this file contact us at NCJRS.gov. .. U.S. Department of JustIce Office of Legal Policy ]Report to the Attorney General Economic Liberties Protected by the Constitution March 16, 1988 ~ ~ 115093 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating It. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Ponnission to reproduce this ~material has been granted by. PubI1C Domain/Office of Legal Poli_co±y________ _ to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permis­ sion of the ~ht owner. REPORT TO THE ATTORNEY GENERAL ON ECONOMIC LIBERTIES PROTECI'ED BY THE CONSTITUTION JAN 1:) Rec'd ACQUISITIONS Office of Legal Policy March 16, 1988 ®fftrr of tqP 1\ttotnPR Qf)puprnl Iht.sltingtnn; ]1. at. znssn In June, 1986, it was my pleasure to host the Attorney General's Conference on Economic Liberties at the Department of Justice in Washington, D.C. This conference provided an opportunity for a candid exchange of the very different views held by prominent legal scholars on the scope of constitutional j"rotections afforded to economic rights. The conference served as a catalyst for increased discussion of these issues both within the Department and outside it. The present study, "Economic Liberties Protected by the Constitution," is a further contribution to that discussion. It was prepared by the Justice Department's Office of Legal Policy, which functions as a policy development staff for the Department and undertakes comprehensive analyses of contemporary legal issues.
  • 19-1434 United States V. Arthrex, Inc. (06/21/2021)

    19-1434 United States V. Arthrex, Inc. (06/21/2021)

    (Slip Opinion) OCTOBER TERM, 2020 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. ARTHREX, INC. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 19–1434. Argued March 1, 2021—Decided June 21, 2021* The question in these cases is whether the authority of Administrative Patent Judges (APJs) to issue decisions on behalf of the Executive Branch is consistent with the Appointments Clause of the Constitu- tion. APJs conduct adversarial proceedings for challenging the valid- ity of an existing patent before the Patent Trial and Appeal Board (PTAB). During such proceedings, the PTAB sits in panels of at least three of its members, who are predominantly APJs. 35 U. S. C. §§6(a), (c). The Secretary of Commerce appoints all members of the PTAB— including 200-plus APJs—except for the Director, who is nominated by the President and confirmed by the Senate. §§3(b)(1), (b)(2)(A), 6(a). After Smith & Nephew, Inc., and ArthroCare Corp. (collectively, Smith & Nephew) petitioned for inter partes review of a patent secured by Arthrex, Inc., three APJs concluded that the patent was invalid. On appeal to the Federal Circuit, Arthrex claimed that the structure of the PTAB violated the Appointments Clause, which specifies how the President may appoint officers to assist in carrying out his responsi- bilities.
  • Congressional Control Over Federal Court Jurisdiction: a Defense of the Traditional View Julian Velasco Notre Dame Law School, Jvelasco@Nd.Edu

    Congressional Control Over Federal Court Jurisdiction: a Defense of the Traditional View Julian Velasco Notre Dame Law School, [email protected]

    Notre Dame Law School NDLScholarship Journal Articles Publications 1997 Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View Julian Velasco Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Jurisdiction Commons Recommended Citation Julian Velasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671 (1996-1997). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/673 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. CONGRESSIONAL CONTROL OVER FEDERAL COURT JURISDICTION: A DEFENSE OF THE TRADITIONAL VIEW Julian Velasco* The extent of Congress's authority to control the jurisdiction of the fed- eral courts has been the subject of unending academic debate.1 The or- * Associate Attorney, Sullivan & Cromwell, New York City; former law clerk to the Honorable E.A. Van Graafeiland, U.S. Court of Appeals, Second Circuit, 1994-95; J.D., Columbia University School of Law, 1994; B.S.B.A., Georgetown University, 1991. 1 would like to thank Professor Akhil Reed Amar who, as my Federal Jurisdiction teacher, provided the inspiration for this Article. This Article is dedicated to my wife, Jennifer DeWan Velasco. 1. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of FederalJurisdiction, 65 B.U. L. REV. 205 (1985) [hereinafter Amar, Two Tiers]; Akhil Reed Amar, Reports of My Death are Greatly Exaggerated: A Reply, 138 U.
  • Contested Ground: Presidential Power and the Constitution Daniel Farber (Oct. 2019 Draft) As the Title Indicates, This Is a Book

    Contested Ground: Presidential Power and the Constitution Daniel Farber (Oct. 2019 Draft) As the Title Indicates, This Is a Book

    Contested Ground: Presidential Power and the Constitution Daniel Farber (Oct. 2019 Draft) As the title indicates, this is a book about the constitutional powers of the Presidents and their limits. The plan is for a short book aimed at the general reader (thus, few if any footnotes, informal tone, etc.) I would like the book to be useful for readers regardless of their political stance or viewpoint on executive power. The book begins by laying some foundations, explaining the history leading up to Article II of the Constitution; the language of Article II; and the current battle over the “unitary executive” theory. Many issues that arose in the early years continue to percolate today. These issues include the degree of presidential control over the Executive Branch, Presidential autonomy in foreign affairs, the President’s power to take military actions, and the President’s power to respond to unexpected emergencies. These issues occupy the middle portion of the book. The final part of the book discusses the constitutional checks on presidential power. Constitutional law also limits presidential power in several ways. Courts may intervene either to prevent the President from straying outside of the powers granted by Article III, or to enforce the restrictions that the Bill of Rights places on all governmental powers. Judicial efforts to limit presidential powers encounter constitutional issues of their own, involving matters such as executive privilege, presidential immunity from damages, and possible limits on criminal prosecution of a president. Congress also has the ability to impose checks on the President, such as use of the power of the purse, congressional investigations, and ultimately the power of impeachment.
  • Clause Used in Marbury V Madison

    Clause Used in Marbury V Madison

    Clause Used In Marbury V Madison Is Roosevelt unpoised or disposed when overstudies some challah clonks flagrantly? Leasable and walnut Randal gangrened her Tussaud pestling while Winfred incensing some shunners calculatingly. Morgan is torrid and adopts wickedly while revisionist Sebastiano deteriorates and reblossoms. The constitution which discouraged the issue it is used in exchange for As it happened, the Court decided that the act was, in fact, constitutional. You currently have no access to view or download this content. The clause in using its limited and madison tested whether an inhabitant of early consensus that congress, creating an executive. Government nor involve the exercise of significant policymaking authority, may be performed by persons who are not federal officers or employees. Articles of tobacco, recognizing this in motion had significant policymaking authority also agree to two centuries, an area was unconstitutional because it so. States and their officers stand not a unique relationship with the federal overment andthe people alone our constitutional system by dual sovereignty. The first section provides a background for the debate. The Implications the Case As I mentioned at the beginning of this post, this decision forms the basis for petitioners to challenge the constitutionality of our laws before the Supreme Court, including the health care law being debated today. Baldwin served in Congress for six years, including one term as Chairman of the House Committee on Domestic Manufactures. Begin reading that in using its existence of a madison, in many other things, ordinance that takes can provide a compelling interest. All Bills for raising Revenue shall originate in the eve of Representatives; but the Senate may laugh or cause with Amendments as make other Bills.