Saving the Unitary Executive Theory from Those Who Would Distort and Abuse It: a Review of the Unitary Executive, by Steven G
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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
\\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. -
DIRECTING the Disorder the CFR Is the Deep State Powerhouse Undoing and Remaking Our World
DEEP STATE DIRECTING THE Disorder The CFR is the Deep State powerhouse undoing and remaking our world. 2 by William F. Jasper The nationalist vs. globalist conflict is not merely an he whole world has gone insane ideological struggle between shadowy, unidentifiable and the lunatics are in charge of T the asylum. At least it looks that forces; it is a struggle with organized globalists who have way to any rational person surveying the very real, identifiable, powerful organizations and networks escalating revolutions that have engulfed the planet in the year 2020. The revolu- operating incessantly to undermine and subvert our tions to which we refer are the COVID- constitutional Republic and our Christian-style civilization. 19 revolution and the Black Lives Matter revolution, which, combined, are wreak- ing unprecedented havoc and destruction — political, social, economic, moral, and spiritual — worldwide. As we will show, these two seemingly unrelated upheavals are very closely tied together, and are but the latest and most profound manifesta- tions of a global revolutionary transfor- mation that has been under way for many years. Both of these revolutions are being stoked and orchestrated by elitist forces that intend to unmake the United States of America and extinguish liberty as we know it everywhere. In his famous “Lectures on the French Revolution,” delivered at Cambridge University between 1895 and 1899, the distinguished British historian and states- man John Emerich Dalberg, more com- monly known as Lord Acton, noted: “The appalling thing in the French Revolution is not the tumult, but the design. Through all the fire and smoke we perceive the evidence of calculating organization. -
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. -
HOUSE of REPRESENTATIVES-Thursday, December 17, 1998
27770 CONGRESSIONAL RECORD-HOUSE December 17, 1998 HOUSE OF REPRESENTATIVES-Thursday, December 17, 1998 Pursuant to section 3 of House Con Pursuant to clause 1, rule I, the Jour Mr. Thomas J. Murrin, Pennsylvania; current Resolution 353, One Hundred nal stands approved. Mr. Kenneth Saxe, Pennsylvania; Fifth Congress, the House met at 10 Mr. Frank Riggs, California; and a.m. and was called to order by the Mr. Frank Roberts, California. Speaker, Hon. NEWT GINGRICH. PLEDGE OF ALLEGIANCE The SPEAKER. Will the gentleman from South Carolina (Mr. SPENCE) COMMUNICATION FROM THE NOTIFICATION OF REASSEMBLING come forward and lead the House in the CHAIRMAN OF THE COMMITTEE OF CONGRESS Pledge of Allegiance. ON TRANSPORTATION AND IN The SPEAKER. The Chair lays before Mr. SPENCE led the Pledge of Alle FRASTRUCTURE the House the text of the formal notifi giance as follows: The Speaker laid before the House cation sent to Members on Monday, I pledge allegiance to the Flag of the the following communication from the December 14, 1998, of the reassembling United States of America, and to the Repub chairman of the Committee on Trans of the House, which the Clerk will read. lic for which it stands, one nation under God, portation and Infrastructure; which The Clerk read as follows: indivisible, with liberty and justice for all. was read and referred to the Com OFFICE OF THE SPEAKER, mittee on Appropriations. Washington, DC, December 14, 1998. APPOINTMENT AS MEMBERS OF WASHINGTON, DC, Pursuant to section 3 of House Concurrent THE ADVISORY COMMISSION ON October 13, 1998. Resolution 353 and after consultation with ELECTRONIC COMMERCE Hon. -
The Pulitzer Prizes 2020 Winne
WINNERS AND FINALISTS 1917 TO PRESENT TABLE OF CONTENTS Excerpts from the Plan of Award ..............................................................2 PULITZER PRIZES IN JOURNALISM Public Service ...........................................................................................6 Reporting ...............................................................................................24 Local Reporting .....................................................................................27 Local Reporting, Edition Time ..............................................................32 Local General or Spot News Reporting ..................................................33 General News Reporting ........................................................................36 Spot News Reporting ............................................................................38 Breaking News Reporting .....................................................................39 Local Reporting, No Edition Time .......................................................45 Local Investigative or Specialized Reporting .........................................47 Investigative Reporting ..........................................................................50 Explanatory Journalism .........................................................................61 Explanatory Reporting ...........................................................................64 Specialized Reporting .............................................................................70 -
Michael Hayden V. Barton Gellman
April 3, 2014 “The NSA and Privacy” General Michael Hayden, Retired General Michael Hayden is a retired four-star general who served as director of the CIA and the NSA. As head of the country’s keystone intelligence-gathering agencies, he was on the frontline of geopolitical strife and the war on terrorism. Hayden entered active duty in 1969 after earning both a B.A. and a M.A. in modern American history from Duquesne University. He is a distinguished graduate of the Reserve Officer Training Corps program. In his nearly 40-year military career, Hayden served as Commander of the Air Intelligence Agency and Director of the Joint Command and Control Warfare Center. He has also served in senior staff positions at the Pentagon, at the headquarters of the U.S. European Command, at the National Security Council, and the U.S. Embassy in Bulgaria. He also served as deputy chief of staff for the United Nations Command and U.S. Forces in South Korea. From 1999–2005, Hayden served as the Director of the NSA and Chief of the CSS after being appointed by President Bill Clinton. He worked to put a human face on the famously secretive agency. Sensing that the world of information was changing rapidly, Hayden worked to explain to the American people the role of the NSA and to make it more visible on the national scene. After his tenure at the NSA and CSS, General Hayden went on to serve as the country's first Principal Deputy Director of National Intelligence, the highest-ranking intelligence officer in the armed forces. -
The Flip Side of Removal: Bringing Appointment Into the Removal Conversation
\\jciprod01\productn\N\NYS\68-1\NYS103.txt unknown Seq: 1 3-JAN-13 9:02 THE FLIP SIDE OF REMOVAL: BRINGING APPOINTMENT INTO THE REMOVAL CONVERSATION ANDERSON P. HESTON* Introduction ................................................ 85 R I. The Supreme Court’s Removal Jurisprudence........ 87 R II. Presidential Control of the Independent Agencies . 95 R A. OMB Review, OIRA Review, and Presidential Influence ........................................ 96 R B. Judicial Review and Presidential Influence ....... 103 R C. Jawboning and Presidential Influence ............ 109 R III. Resistance to Presidential Control ................... 115 R A. Confirmation Politics ............................ 116 R B. The Consequences of Confirmation Politics...... 118 R C. The Ineffectiveness of Confirmation Politics ..... 120 R Conclusion ................................................. 124 R INTRODUCTION In July of 2010, the Supreme Court did something it hadn’t done since the Coolidge Administration: strike down a statute for unconstitutionally restricting the President’s power to remove his subordinates. Judge Brett Kavanaugh of the D.C. Circuit noted the moment’s significance, calling the case “the most important separa- tion-of-powers case regarding the President’s appointment and re- moval powers . in the last 20 years.”1 In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court held by a five- to-four majority that certain provisions from the Sarbanes-Oxley Act2 unconstitutionally restricted the President’s power to fire members of the Public Company Accounting Oversight Board, a regulatory body created by Sarbanes-Oxley.3 * J.D., May 2012, New York University School of Law; B.A. 2005, Davidson College. Development Editor for the N.Y.U. Annual Survey of American Law in 2011–12. -
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. -
Frameworks for Immigration Reform Cristina M
Introduction Senator Elizabeth Warren ............................................. i 1. Setting a Voting Rights Agenda in an Era of “Legal” Disenfranchisement Franita Tolson .......................................................... 1.1 2. Dark Money, Black Hole Money, and How to Solve It Ciara Torres-Spelliscy ................................................ 2.1 3. Frameworks for Immigration Reform Cristina M. Rodriguez ................................................ 3.1 4. Strengthening Workers’ Rights Samuel R. Bagenstos ................................................ 4.1 5. Creating an Infrastructure of Opportunity K. Sabeel Rahman .................................................... 5.1 6. Three Recommendations for the Next Administration to Improve Access to Justice Paul Bland ............................................................. 6.1 7. Enhancing Trust and Legitimacy of Policing Tracey Meares ..........................................................7.1 8. Considering Religious Accommodation Douglas NeJaime ..................................................... 8.1 9. Modernizing Technology Law for Constitutional Surveillance Reform Jennifer Granick ...................................................... 9.1 10. Protecting the Environment by Loosening Presidential Control Lisa Heinzerling ................................................... 10.1 Introduction Senator Elizabeth Warren Ideas matter. Eight years ago, the United States was facing the worst economic crisis since the Great Depression. Wall Street firms had gambled -
The Contributions of the Obama Administration to the Practice and Theory of International Law
\\jciprod01\productn\H\HLI\57-2\HLI205.txt unknown Seq: 1 14-OCT-16 13:24 Volume 57, Number 2, Spring 2016 The Contributions of the Obama Administration to the Practice and Theory of International Law Jack Goldsmith* My aim in this essay is to give a tour of the horizon of the Obama admin- istration’s international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. Due to his upbringing and education, Barack Obama came to the Presi- dency with a cosmopolitan outlook and an informed commitment to inter- national law. This attitude differed sharply from his predecessor, George W. Bush, who was suspicious of international law and generally viewed it as an obstacle to the exercise of American power. By contrast, Obama devoted a chapter of his 2006 book The Audacity of Hope to international relations and made plain that he understood international law intimately and viewed it as a constructive force in international relations.1 He criticized the view that “international law [was] an encroachment on American sovereignty [and] a foolish constraint on America’s ability to impose its will around the world”—a position that Obama associated with Henry Cabot Lodge, but one that might also describe the early Bush administration.2 And Obama argued it was “in America’s interest to work with other countries to build up international institutions and promote international norms . because the more international norms were reinforced and the more America sig- naled a willingness to show restraint in the exercise of its power, the fewer the number of conflicts that would arise.”3 On the campaign trail Obama gave voice to this attitude when he criticized the Bush administration for its weak compliance with U.S. -
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.