Characterizing Power for Separation-of-Powers Purposes

Tuan N. Samahon

Every separation-of-powers case quickly encounters a fundamental threshold inquiry that remains surprisingly difficult, even after almost 230 years of practice under the United States Constitution: what is the nature—legislative, executive, or judicial—of the contested power exercised? The three cognate vesting clauses in Articles I, II, and III use these undefined terms as if they are intended to have substantive, separate content. This tripartite division, which is inefficient by design, is built into our constitutional system to safeguard individual liberty by assuring that powers to legislate, execute, and adjudicate the laws do not all fall into a single set of (potentially) oppressive hands. In many separation-of-powers cases, whether the challenged institutional arrangement has honored that principle turns on the categorization or characterization of the powers at stake.

Read more

A Non-Originalist Separation of Powers

Eric J. Segall

Since the end of World War II, some of the United States Supreme Court’s most important constitutional law cases have focused on the appropriate relationships between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus, some might say obsession, with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation-of-powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

Read more

The President, Prosecutorial Discretion, Obstruction of Justice, and Congress

Henry L. Chambers, Jr.

The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that a President can so misuse a power that has been given to the office that the exercise of the power is an act of malfeasance, criminality, or both. Those who argue against the possibility of obstruction tend to rely on the President’s executive power. The debate is too large to fully resolve in this brief essay. Instead, this essay sketches the contours of the debate and briefly considers which questions surrounding the debate are particularly difficult to resolve and which are not.

Read more

States Suing the Federal Government: Protecting Liberty or Playing Politics?

Elbert Lin

It has become increasingly common in recent years to scan the news and find that a state or group of states has sued the federal government. During the eight years of the Obama Administration, states led mostly by Republican attorneys general challenged federal action on matters ranging from health care to immigration to the environment to overtime pay. And during just the first year of the Trump Administration, states led by Democratic attorneys general have brought suits in many of those same areas and others, including federal student loan relief and regulation of the internet.

Read more

Delegation Enforcement by State Attorneys General

Jonathan David Shaub

State attorneys general have taken on an increasingly active role in challenging the actions of the federal government, and, in particular, the actions of the President. During the Obama Administration, state attorneys general began suing the federal government at an increasing rate, and these actions resulted in some of the most consequential judicial decisions of the time period—as both a matter of judicial precedent and a matter of policy impact. State-initiated action against the Obama Administration resulted in a new doctrine preventing state coercion, the implications of which are only starting to be recognized. It also resulted in court-ordered cessation of significant policy initiatives of the Administration, including, among others, nullifying the Deferred Action for Parents of Childhood Arrivals (“DAPA”) program, halting in part the Waters of the United States Rule, and the Clean Power Plant initiative.

Read more

Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole

Emily Powell

Reynolds Wintersmith was just twenty years old when he learned he may spend the rest of his life in prison. In 1994, he was sentenced to life without the possibility of parole for a nonviolent drug crime. It was his first conviction.

When United States District Judge Philip Reinhard was sentencing Reynolds, he struggled with the mandatory minimum requirements:

“Under the federal law I have no discretion in my sentencing. Usually a life sentence is imposed in state courts when somebody has been killed or severely hurt, or you got a recidivist . . . . [T]his is your first conviction, and here you face life imprisonment . . . . [I]t gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life.”

This comment contends that Reynolds Wintersmith belonged to a class of offenders who should be categorically exempt from sentences of life imprisonment without the possibility of parole. Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

Read more

The Invisible Minority: Discrimination Against Bisexuals in the Workplace

Elizabeth Childress Burneson

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men.

Read more

Is It Bad Law To Believe A Politician? Campaign Speech And Discriminatory Intent

Shawn E. Fields

Politicians lie. For better or worse, we have grown accustomed to this unsavory practice. We expect candidates for public office to make promises they have no intention of keeping. We expect candidates to say one thing to “play to the base” during primaries, only to contradict themselves as they “play to the middle” in the general election. But should this unfortunate fact of political discourse influence judicial analysis of a politician’s potentially unconstitutional motivations behind a challenged government action? Should courts refuse even to consider discriminatory and inflammatory campaign pledges in assessing the purpose of a statute or regulation simply because we distrust our elected officials? Can such a bright-line evidentiary exclusion be justified even when a political candidate speaks openly, consistently, and convincingly about his desire to enact impermissibly discriminatory policies if elected?

Read more

Separate But (Un)Equal: Why Institutionalized Anti-Racism Is The Answer To The Never-Ending Cycle Of Plessy v. Ferguson

Maureen Johnson

Do as I say, not as I do. For decades, Plessy v. Ferguson has been identified as one of the worst decisions ever handed down by the Supreme Court. In a near unanimous opinion, the Justices found nothing unconstitutional about a law that required African Americans to ride in a separate boxcar from their white counterparts. In fact, the ruling even seemed progressive at the time as it required that the separate boxcars be qualitatively the same. Justice Harlan authored the sole dissent that housed his infamous prophecy that the Plessy decision “in time, [would] prove to be quite as pernicious” as the Dred Scott decision. Yet despite universal condemnation, America still has not learned to truly rid itself of the lingering effects of Plessy

Read more

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication

Stacey M. Lantagne

If you are one of the many people who use social media daily, chances are you have shared copyrighted photographs, retweeted copyrighted Vines, and reblogged copyrighted GIFs, all of celebrities or anonymous people you know only through the meme itself, and you have never paid a cent to anyone.

Social media is a huge and profitable business, and it is often stated that much of it is based on user-generated content. Facebook, Twitter, and Tumblr are nothing without the people who upload to the sites, but social media is frequently not about the posting of content you have generated yourself, but rather the reposting of content you have seen other people post, often without the knowledge or consent of either the rights-owner or the people in the content itself.

Read more
Page 2 of 512345