DOCSLIB.ORG

The Indefensible Duty to Defend

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Indefensible Duty to Defend College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2012 The ndefeI nsible Duty to Defend Neal Devins William & Mary Law School, [email protected] Saikrishna B. Prakash Repository Citation Devins, Neal and Prakash, Saikrishna B., "The ndefeI nsible Duty to Defend" (2012). Faculty Publications. 1266. https://scholarship.law.wm.edu/facpubs/1266 Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 1 19-MAR-12 16:45 THE INDEFENSIBLE DUTY TO DEFEND Neal Devins* & Saikrishna Prakash** Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the du- ties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its indepen- dence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation au- thority. Third, our analysis of refusals to defend shows that the duty to de- fend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that oppor- tunity as a result of executive enforcement of a law it believes is unconstitu- tional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President’s constitutional vision, which is what the duty to defend is all about. INTRODUCTION .................................................. 508 R I. THE DUTIES TO ENFORCE AND DEFEND AND THEIR MANY VARIATIONS .............................................. 513 R II. THE CONSTITUTION AND THE DUTIES TO ENFORCE AND DEFEND .................................................. 521 R A. Defending the Constitution Against Unconstitutional Laws ................................................. 523 R B. Interpretive Independence ........................... 526 R C. The Faithful Execution Clause and Unconstitutional Laws ................................................. 532 R D. Arguments Against Our Claim ....................... 535 R * Goodrich Professor of Law and Professor of Government, College of William and Mary. ** David Lurton Massee, Jr., Professor of Law & Sullivan & Cromwell Professor of Law, University of Virginia. In writing this article, we benefitted from conversations and correspondence with current and former officials from the Office of the Attorney General, Office of the Solicitor General, Office of Legal Counsel, Office of White House Counsel, and the House and Senate Counsel Offices. Thanks, in particular, to Jim Comey, Morgan Frankel, John Harrison, Nelson Lund, John McGinnis, Tom Merrill, and Charles Tiefer. Thanks also to our research assistants, James Gross, Brian Kelley, and especially Bryan Gividen. Thanks to participants at faculty workshops at the University of Oklahoma and Notre Dame law schools for helpful comments. 507 \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 2 19-MAR-12 16:45 508 COLUMBIA LAW REVIEW [Vol. 112:507 III. THE REALPOLITIK OF THE DUTIES TO ENFORCE AND DEFEND .................................................. 537 R A. The Department of Justice and Bureaucratic Theory . 538 R B. The Duty to Defend and the Office of the Solicitor General.............................................. 541 R C. The Office of Legal Counsel and the Duty to Defend .............................................. 545 R D. Congress, the President, and the Duty to Defend ..... 549 R 1. Congress ......................................... 550 R 2. The White House ................................ 555 R IV. THE DUTY TO DEFEND IN PRACTICE: HOW THE SOLICITOR GENERAL ADVANCES THE PRESIDENT’S CONSTITUTIONAL VISION VIA EXCEPTIONS TO THE DUTY TO DEFEND .......... 559 R V. IMAGINING A WORLD WITHOUT DUTIES TO DEFEND OR ENFORCE ................................................. 571 R CONCLUSION .................................................... 576 R INTRODUCTION The belief that the President must enforce and defend laws that he thinks unconstitutional is widely held, although there is substantial disa- greement over the obligation’s scope. Consider reactions to President Barack Obama’s February 2011 decision to enforce but not defend the Defense of Marriage Act (DOMA).1 For some, the President’s decision to enforce but not defend the DOMA was “honest, transparent, and respect- 1. See Letter from Eric H. Holder, Jr., Att’y Gen. of the United States, to Hon. John H. Boehner, Speaker of the House (Feb. 23, 2011) [hereinafter Holder Letter], available at http://talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to- congress-on-litigation-involving-the-defense-of-marriage-act.php?page=1 (on file with the Columbia Law Review) (stating President will enforce but not defend the DOMA). In July 2011, the Department of Justice (DOJ) filed papers explaining why it thought same-sex classifications were subject to strict scrutiny review and, consequently, why the DOMA is unconstitutional. See generally Defendants’ Brief in Opposition to Motions to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., 781 F. Supp. 2d 967 (N.D. Cal. 2011) (No. C 3:10- 00257-JSW) (arguing DOMA violates Equal Protection). In response, the Ninth Circuit Court of Appeals cited the administration’s nondefense of the DOMA in lifting the stay of a district court’s ruling that the “Don’t Ask Don’t Tell Act” violated the First Amendment. Log Cabin Republicans v. United States, Nos. 10-56634, 10-56813, at 2 (9th Cir. July 6, 2011), 2011 WL 2637191, at *1 (order lifting stay of district court’s judgment). \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 3 19-MAR-12 16:45 2012] THE INDEFENSIBLE DUTY TO DEFEND 509 ful of the rule of law.”2 Others were critical, claiming that because the Act is not clearly unconstitutional, he ought to have defended it.3 The President’s critics and defenders are both mistaken. Contrary to his critics, there simply is no duty to defend federal statutes the President believes are unconstitutional. Contrary to his defenders, there likewise is no duty to enforce such laws. Given President Obama’s belief that the DOMA is unconstitutional,4 he should neither enforce nor defend it. The duty to enforce seems premised on the belief that courts should be, as Obama Attorney General Eric Holder declared, “the final arbiter of . constitutional claims.”5 The duty to defend seems grounded on the view that the Department of Justice generally should serve as Congress’s lawyer—defending congressional statutes that it or the President thinks are unconstitutional. Yet nothing in the Constitution requires the President to either subordinate his constitutional vision to the courts or serve as the mouthpiece of Congress before the courts. To the contrary, the duties to enforce and defend are inconsistent with the Constitution’s text and structure, both of which speak to the President’s responsibility to 2. Walter Dellinger, The DOMA Decision, The New Republic (Mar. 1, 2011, 12:00 AM), http://www.tnr.com/article/politics/84353/gay-marriage-obama-gingrich-doma (on file with the Columbia Law Review). For a nearly identical argument, see Peter M. Shane, Not Defending DOMA: A Conscientious and Responsible Decision, Huffington Post (Feb. 25, 2011, 2:26 PM), http://www.huffingtonpost.com/peter-m-shane/not-defending- defense-of-marriage_b_828348.html (on file with the Columbia Law Review) (praising Holder’s letter as a “careful, highly deliberate step . consistent with the . executive’s obligations towards the Constitution and the rule of law”). 3. See, e.g., Orin Kerr, The Executive Power Grab in the Decision Not to Defend DOMA, The Volokh Conspiracy (Feb. 23, 2011, 3:49 PM), http://volokh.com/2011/02/ 23/the-executive-power-grab-in-the-decision-not-to-defend-doma (on file with the Columbia Law Review) (arguing that by basing nondefense of DOMA on “a contested theory of the constitutionality of laws regulating gay rights . the Obama Administration has moved the goalposts of the usual role of the Executive branch”); Adam Winkler, Why Obama Is Wrong on DOMA, Huffington Post (Feb. 24, 2011, 12:01 PM), http://www.huffingtonpost. com/adam-winkler/why-obama-is-wrong-on-dom_b_827676.html (on file with the Columbia Law Review) (arguing nondefense of DOMA “sets a terrible precedent”); John Yoo, Obama Pushes the Limits of Executive Power in DOMA Decision, Ricochet (Feb. 23, 2011, 2:26 PM), http://ricochet.com/main-feed/Obama-Pushes-the-Limits-of-Executive-Power-in- DOMA-Decision (on file with the Columbia Law Review) (asserting that “decision to no longer enforce [DOMA] . uses the legal system to short-circuit the normal political process”). 4. We take no position on the constitutionality
Load more

Recommended publications
  • Duty to Defend Compendium: Pennsylvania
    Pennsylvania By Bridget M. Gillespie and R. Brandon McCullough What triggers an insurer’s must look to the facts alleged in the underlying com- duty to defend? plaint, not the cause of action pled.”), appeal denied, An insurer has a duty to defend its insured if the 598 Pa. 769, 956 A.2d 436 (2008). When considering factual allegations of the underlying complaint whether there is a duty to defend, the factual allega- “encompass an injury that is actually or potentially tions of the complaint against the insured must be within the scope of the policy.” American & Foreign accepted “as true and liberally construed in favor of Ins. Co. v. Jerry’s Sport Ctr., Inc., 606 Pa. 584, 609, the insured.” Jerry’s Sport Ctr., 606 Pa. at 610, 2 A.3d 2 A.3d 526, 541 (2010) (citations omitted). This is at 541 (quoting Frog, Switch & Mfg. Co., Inc. v. Trav- determined by “comparing the four corners of the elers Ins. Co., 193 F.3d 742 (3d Cir. 1999)). In addi- insurance contract to the four corners of the com- tion, all doubts and ambiguities in policy language plaint.” Id. (citation omitted). Therefore, “an insurer must be resolved in favor of the insured. Id. at 608, 2 may not justifiably refuse to defend a claim against A.3d at 540 (citations omitted). its insured unless it is clear from an examination of The language of the notice provision in the pol- the allegations in the complaint and the language of icy at issue and the facts surrounding the notice the policy that the claim does not potentially come will determine the sufficiency of notice to trigger a within the coverage of the policy.” Id.
    [Show full text]
  • 1 United States District Court Eastern District Of
    Case 2:11-cv-02375-SM-DEK Document 511 Filed 07/12/17 Page 1 of 26 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA HANOVER INSURANCE COMPANY, CIVIL ACTION Plaintiff No. 11-2375 c/w VERSUS 14-1930, 14-1933, 16-2490 SUPERIOR LABOR SERVICES, SECTION “E” INC., ET AL., Defendants Applies to: 16-2490 ORDER AND REASONS Before the Court is a motion for summary judgment filed by Great American Excess & Surplus Insurance Company (“Great American”) regarding its duty to defend and duty to indemnify Allied Shipyard, Inc. against claims made in the underlying St. Pierre state-court lawsuit, more fully described below, as an additional insured under Masse’s policies.1 Allied opposes the motion.2 For the reasons set forth below, Great American’s motion is GRANTED. BACKGROUND A. State-Court Lawsuits This is a consolidated action. The case originates from two personal-injury actions (“State-Court Lawsuits”) filed in state court against Allied Shipyard, Inc. (“Allied”): Adams, et al. v. Allied Shipyard, Inc., et al. and St. Pierre, et al. v. Allied Shipyard, Inc.3 The plaintiffs in the State-Court Lawsuits allege Allied negligently performed 1 R. Docs. 447. Unless otherwise indicated, “R. Doc.” refers to record documents in the consolidated matter, No. 11-2375. The caption of Great American’s motion for summary judgment indicates the motion applies to Nos. 14-1933 and 16-2490. Great American is no longer a party in 14-1933. 2 R. Doc. 449. 3 R. Docs. 444-3, 444-4, 444-5, 444-6, 444-7, 444-8, 444-9 (Adams Petitions for Damages); R.
    [Show full text]
  • Congress's Power Over Appropriations: Constitutional And
    Congress’s Power Over Appropriations: Constitutional and Statutory Provisions June 16, 2020 Congressional Research Service https://crsreports.congress.gov R46417 SUMMARY R46417 Congress’s Power Over Appropriations: June 16, 2020 Constitutional and Statutory Provisions Sean M. Stiff A body of constitutional and statutory provisions provides Congress with perhaps its most Legislative Attorney important legislative tool: the power to direct and control federal spending. Congress’s “power of the purse” derives from two features of the Constitution: Congress’s enumerated legislative powers, including the power to raise revenue and “pay the Debts and provide for the common Defence and general Welfare of the United States,” and the Appropriations Clause. This latter provision states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Strictly speaking, the Appropriations Clause does not provide Congress a substantive legislative power but rather constrains government action. But because Article I vests the legislative power of the United States in Congress, and Congress is therefore the moving force in deciding when and on what terms to make public money available through an appropriation, the Appropriations Clause is perhaps the most important piece in the framework establishing Congress’s supremacy over public funds. The Supreme Court has interpreted and applied the Appropriations Clause in relatively few cases. Still, these cases provide important fence posts marking the extent of Congress’s
    [Show full text]
  • Riddle Butts
    Riddle& Butts, LLP Fiduciary Handbook for Estates A NOTE FROM THE TEAM Introduction Christine served Harris County as Judge of Probate Court 4 from 2011 to 2018. Thank you for taking the time to familiarize yourself with the information in this handbook. The purpose of this handbook John Portnow is a 2011 graduate of Suffolk University Law is to serve as a reference guide, highlighting specific issues School. He also holds a LL.M. in Taxation from Temple Uni- and requirements necessary to administer an estate. We hope versity School of Law and a B.A. in English from Yeshiva the information provided enhances your understanding of this University, where he graduated Magna Cum Laude. John has process. Should you be appointed as Executor or Administra- experience consulting with respect to federal and state tax tor of an estate, this handbook will assist you in serving in audits and tax litigation. such capacity in a thoughtful and competent manner. If you have additional questions or concerns, your attorney and our staff are available to provide assistance. About the Team Michael C. Riddle began his practice of law as a gift and estate tax attorney for the Internal Revenue Service. He grad- uated from the University of Houston Law School in 1972 and in 1991 became Board Certified by the Texas Board of Legal Specialization in Estate Planning and Probate. He has been guest speaker for 30 years on Christian radio station KHCB 105.7. He is the Managing Partner of Riddle & Butts, LLP and has been practicing law in Harris County and sur- rounding counties for almost 40 years.
    [Show full text]
  • The Senate in Transition Or How I Learned to Stop Worrying and Love the Nuclear Option1
    \\jciprod01\productn\N\NYL\19-4\NYL402.txt unknown Seq: 1 3-JAN-17 6:55 THE SENATE IN TRANSITION OR HOW I LEARNED TO STOP WORRYING AND LOVE THE NUCLEAR OPTION1 William G. Dauster* The right of United States Senators to debate without limit—and thus to filibuster—has characterized much of the Senate’s history. The Reid Pre- cedent, Majority Leader Harry Reid’s November 21, 2013, change to a sim- ple majority to confirm nominations—sometimes called the “nuclear option”—dramatically altered that right. This article considers the Senate’s right to debate, Senators’ increasing abuse of the filibuster, how Senator Reid executed his change, and possible expansions of the Reid Precedent. INTRODUCTION .............................................. 632 R I. THE NATURE OF THE SENATE ........................ 633 R II. THE FOUNDERS’ SENATE ............................. 637 R III. THE CLOTURE RULE ................................. 639 R IV. FILIBUSTER ABUSE .................................. 641 R V. THE REID PRECEDENT ............................... 645 R VI. CHANGING PROCEDURE THROUGH PRECEDENT ......... 649 R VII. THE CONSTITUTIONAL OPTION ........................ 656 R VIII. POSSIBLE REACTIONS TO THE REID PRECEDENT ........ 658 R A. Republican Reaction ............................ 659 R B. Legislation ...................................... 661 R C. Supreme Court Nominations ..................... 670 R D. Discharging Committees of Nominations ......... 672 R E. Overruling Home-State Senators ................. 674 R F. Overruling the Minority Leader .................. 677 R G. Time To Debate ................................ 680 R CONCLUSION................................................ 680 R * Former Deputy Chief of Staff for Policy for U.S. Senate Democratic Leader Harry Reid. The author has worked on U.S. Senate and White House staffs since 1986, including as Staff Director or Deputy Staff Director for the Committees on the Budget, Labor and Human Resources, and Finance.
    [Show full text]
  • Download Firm Brochure
    REPRESENTATION THROUGH EXPERIENCE, DIVERSITY & CREATIVITY INNOVATIVE SOLUTIONS TO CHALLENGES THAT FACE OUR CLIENTS Resnick & Louis, P.C. retains an unparalleled team of professionals with diverse backgrounds from across the United States and abroad. Our experienced attorneys We Offer A Partner are licensed in multiple jurisdictions and are well versed in all aspects of negotiation, arbitration, mediation, trial Committed To and resolution of litigated and non-litigated matters. We consistently approach each case differently, finding and Your Goals focusing on the strategies that will achieve the most beneficial results for each client. We continuously involve our clients in our process to ensure their needs are met throughout their entire experience, and take pride in being highly responsive to our clients’ requests. It is our goal to maintain direct and open communication in order to ensure their satisfaction. Our law office is staffed with hardworking and efficient individuals who care about every case and are able to manage a wide variety of tasks for our clients. It is this value-added approach that sets us apart from other law firms in the locations we serve. FIRM OPERATOR: 866.800.5040 / RLATTORNEYS.COM A GLOBAL NETWORK OF OUTSTANDING PROFESSIONALS Resnick & Louis P.C. has offices within major U.S. metropolitan areas of Arizona, California, Colorado, Florida, Mississippi, Nevada, New Mexico, South National and Carolina, Texas, and Utah and internationally in the United Kingdom. Additionally, many of our attorneys International have licenses in other states. Footprint We provide statewide representation throughout our jurisdictions and maintain an outstanding network of consultants, expert witnesses, and other professionals who are available to assist in our clients’ cases.
    [Show full text]
  • Employment Practices Liability Insurance (EPLI) Policies and Coverage
    Resource ID: w-006-7127 Employment Practices Liability Insurance (EPLI) Policies and Coverage JOSEPH M. GAGLIARDO AND SARA P. YAGER, LANER MUCHIN, LTD., WITH PRACTICAL LAW LABOR & EMPLOYMENT Search the Resource ID numbers in blue on Westlaw for more. A Practice Note discussing employment practices Commercial General Liability Insurance Policies: Property Damage and Bodily Injury Coverage (Coverage A) (9-507-2539). liability insurance (EPLI) policies and coverage Commercial General Liability Insurance Policies: Personal and issues for employers. It covers EPLI’s key Advertising Injury Coverage (Coverage B) (0-507-2567). characteristics, benefits to employers, scope of Directors and Officers Liability Insurance Policies (2-504-6515). coverage, and common policy provisions. It also For a collection of insurance-related resources, see Insurance Policies includes practical considerations for employers and Coverage Toolkit (4-506-1171). obtaining EPLI policies. This Note contains OVERVIEW OF EPLI POLICIES general information and is jurisdiction neutral. EPLI is a form of insurance that employers can obtain for certain employment practices liability. It generally covers claims alleging that the employer engaged in unlawful conduct in connection with Employment practices liability insurance (EPLI) policies allow the employment relationship, including claims by individuals such as: employers to mitigate risk and reduce the costs associated with Employees. certain employment-related claims and litigation. EPLI policies are Former employees. a relatively new insurance offering and have become increasingly popular because of: Applicants for employment. The rising volume and costs of employment practices litigation. Certain EPLI policies also may cover claims made by the Equal The employment practices exclusions added to many other Employment Opportunity Commission (EEOC) on behalf of these insurance policies.
    [Show full text]
  • An Overview of Indemnification and the Duty to Defend
    AN OVERVIEW OF INDEMNIFICATION AND THE DUTY TO DEFEND Indemnification & Duty to Defend Subcommittee, ACEC Risk Management Committee Subcommittee Chair Theodore D. Levin, P.E., Attorney Morris Polich & Purdy LLP Subcommittee Members Karen Erger, Vice President, Director of Practice Risk Management Lockton Companies, Inc. Albert Rabasca, Director of Industry Relations XL Specialty Insurance Company Homer Sandridge, Underwriting Director, Professional Liability Travelers Insurance Creighton Sebra, Attorney Morris Polich & Purdy, LLP Principles and History One of the most basic principles of tort law is that every person should be responsible for damage that they have caused. Many states have reduced this concept to statute, each stating almost word for word that “Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.”1 In many lawsuits, a plaintiff’s damages are caused by the convergence of several contributing factors originating from several different sources. To give one common example, a plaintiff homeowner alleging property damages resulting from construction defects may assert claims in one lawsuit against any of the diverse parties that contributed various scopes of work to the project, including the general contractor, subcontractors and trades that contributed to the defective work, as well as design professionals such as civil engineers, architects, and structural engineers. To put it even more bluntly, the owner files one suit against everyone in sight. In practice, however, the plaintiff more often merely sues the party or parties with whom he or she contracted, and lets the named defendant(s) do the legwork to identify and sue other parties that may also be responsible.
    [Show full text]
  • Commonwealth of Pennsylvania Tuesday
    COMMONWEALTH OF PENNSYLVANIA TUESDAY, NOVEMBER 13, 2007 SESSION OF 2007 191 ST OF THE GENERAL ASSEMBLY No. 84 SENATE The PRESIDENT. The Chair thanks Father Hahn, who is the guest today of Senator Brubaker. TUESDAY, November 13,2007 PLEDGE OF ALLEGIANCE The Senate met at 1 p.m., Eastern Standard Time. (The Pledge of Allegiance was recited by those assembled.) The PRESIDENT (Lieutenant Governor Catherine Baker Knoll) in the Chair. COMMUNICATIONS FROM THE GOVERNOR PRAYER NOMINATIONS REFERRED TO COMMITTEE The Chaplain, Reverend PETER 1. HAHN, of St. Peter's Cath­ The PRESIDENT laid before the Senate the following com­ olic Church, Columbia, offered the following prayer: munications in writing from His Excellency, the Governor of the Commonwealth, which were read as follows and referred to the Let us bow our heads in prayer. Committee on Rules and Executive Nominations: Dear God, our infinitely loving Father, the psalmist proclaims MEMBER OF THE STATE BOARD that Your law is perfect and that it refreshes the soul. We are OF FUNERAL DIRECTORS assembled this day and every day in the light of Your eternal wisdom and truth, from which that law flows. October 30,2007 Bless these men and women, the Members of the Senate of the To the Honorable, the Senate Commonwealth of Pennsylvania, our brothers and sisters whom of the Commonwealth of Pennsylvania: You have chosen to serve. Give them courage and insight. Give them the grace to always act in Your love, to deliberate with In conformity with law, I have the honor hereby to nominate for the advice and consent of the Senate, Anthony Scarantino, (Public Mem­ civility and respect, always remembering that each is a brother ber), 1213 Zorba Drive, Apartment 6, White Hall 18052, Lehigh and sister in the Lord, a child of God of inestimable value.
    [Show full text]
  • Duty to Defend and Duty to Indemnify Checklist by Daniel Cotter, Howard & Howard Attorneys PLLC
    Duty to Defend and Duty to Indemnify Checklist by Daniel Cotter, Howard & Howard Attorneys PLLC This Duty to Defend and Duty to Indemnify checklist addresses the major duties an insurer commits to under an insurance policy. The duty to defend describes an insurer’s obligation to provide an insured a defense to claims made under a policy. The duty to indemnify describes an insurer’s obligation to pay a claim for loss or damage against an insured. For additional insight into these concepts, see Duty to Defend and Duty to Indemnify; Insurer Duty-to-Defend Standard State Law Survey. The Starting Point Counsel giving advice to clients, whether the policyholder or the insurer, must start by obtaining the insurance contract. Insurers draft special contracts, called insurance policies, providing certain coverages to insureds and certain duties by insurers in the event of a covered loss. Covered loss will be defined in each type of policy and will vary based on the type of policy sold to an insured. The two major duties that an insurer finds itself obligated to an insured for are the duty to defend and the duty to indemnify. Finding the Two Duties The duty to defend is a term that describes an insurer’s obligation to provide an insured with a defense to claims made under an insurance policy. The duty to indemnify describes an insurer’s obligation to pay a claim for loss or damage against an insured. Both are typically included in a policy’s insuring agreement. Basics of an Insurance Policy and the Duties The duty to defend and the duty to indemnify are primarily found in liability policies—those with third party coverage implications.
    [Show full text]
  • Deruglatory Riders Redux
    Michigan Journal of Environmental & Administrative Law Volume 1 Issue 1 2012 Deruglatory Riders Redux Thomas O, McGarity University of Texas School of Law Follow this and additional works at: https://repository.law.umich.edu/mjeal Part of the Law and Politics Commons, and the Legislation Commons Recommended Citation Thomas O. McGarity, Deruglatory Riders Redux, 1 MICH. J. ENVTL. & ADMIN. L. 33 (2012). Available at: https://repository.law.umich.edu/mjeal/vol1/iss1/2 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Environmental & Administrative Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEREGULATORY RIDERS REDUX Thomas 0. McGarity* Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Rec- ognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Re- publican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences offailing to pass the more important bills. This Article examines the deregulatory riders of the 104th Congress and the experience to date with deregulatory riders during the 112th Congress.
    [Show full text]
  • Withdrawing from Congressional- Executive Agreements with the Advice and Consent of Congress
    WITHDRAWING FROM CONGRESSIONAL- EXECUTIVE AGREEMENTS WITH THE ADVICE AND CONSENT OF CONGRESS Abigail L. Sia* As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for decades, the congressional-executive agreement has received relatively little attention. It is neither clear nor well settled whether the president has the constitutional authority to withdraw unilaterally from this type of agreement. This Note proposes applying Justice Robert H. Jackson’s tripartite framework, first articulated in a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), to determine whether or not a president may constitutionally withdraw from a congressional-executive agreement without Congress’s consent. However, in certain dire emergency situations or when Congress is physically unable to convene and vote, the president should be permitted to eschew the framework and withdraw the United States from a congressional-executive agreement without waiting for Congress’s consent—so long as the president reasonably believes that withdrawal is in the country’s best interest. To support this approach, this Note also calls for a new reporting statute, similar in structure to the War Powers Resolution, to address the significant information asymmetries between the executive and legislative branches.
    [Show full text]