§ 19.1 The General Nature of Doctrine. § 19.2 Congressional Delegation of Legislative Power to the President, Administrative Agencies, or Special Commissions. § 19.3 Presidential Power Over National Policy. § 19.3.1 General Observations. § 19.3.2 International Matters. § 19.3.3 War and National Defense. § 19.3.4 Domestic Policymaking. § 19.3.5 The Pardon Power. § 19.4 Legislative Power Over National Policy. § 19.4.1 General Observations. § 19.4.2 Unconstitutional Attempts to Change the Veto Power. § 19.4.2.1 The Legislative Veto. § 19.4.2.2 Giving the President a Line-Item Veto. § 19.4.3 Limited Legislative Control Over Appointment and Removal of Officers. § 19.4.3.1 Limited Legislative Control Over Appointment of Officers. § 19.4.3.2 Limited Legislative Control...
As US counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent legal scholarship has painted a grim picture of the effective vitality of civilian control over the US military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This article is an effort to begin filling that gap, by ex...
I Political Economy and its Relationship to Separation of Powers - A Political Economy - B The Relationship Between - II Evidence for the Thesis: Basic Separation of Powers in a Number of States - A Comparison of the US Presidential System with Parliamentarianism in Great Britain - B New Zealand - C Comparison of Westminster Parliamentarianism with German "Constrained" Parliamentarianism or Kanzlerdemokratie - D The French "Mixed" or "Presidential-Parliamentary" Model - E Summary of Basic Lawmaking Structures - III Complicating The Picture: Adding Other Factors Affecting Concentration of Lawmaking Power - A Judicial Review - B Federalism - C Executive Lawmaking - IV Concluding Explanations: A More Precise Statement of the ...
The George W. Bush administration will long be remembered for its constitutional and legal arguments on behalf of exclusive and inherent executive power. In its extreme form, this uncompromising effort appears to have failed, and may even have pushed the judicial branch to limit executive authority and return to a more traditional insistence on interbranch cooperation in foreign affairs. Ironically, the Bush-Cheney legal legacy ultimately will depend on the Barack Obama administration's public commitments and legal arguments, but early evidence suggests that President Obama's assertions of executive power will rest less on assertions of constitutional prerogative, and more heavily on statutory delegation as well as long-standing judicial precedent.
JACKSON - Mississippi's Supreme Court justices ruled Thursday that the separation of powers doctrine bars them from vacating the 198 pardons former governor Haley Barbour issued during his final days in office. In a 6-3 decision, justices held that the pardons are legitimate, even those that did not meet the state Constitution's requirement that inmates take out newspaper ads announcing their pending pardons at least 30 days before they are released.
Introduction II. How And Why Swift Failed To Adequately Address Separation Of Powers And Federalism Problems Raised By The Rules Of Decision Act And The Superiority Of The Proposed "Irresistible Incentive" Test As A Means Of Determining Both The Existence And Identity Of Substantive State Rights III. Swift Failed To Adequately Address Separation Of Powers And Federalism Issues Raised By The Rules Of Decision Act And Thereby Undermined Legitimate State Interest A. Swift v. Tyson B. Gelpcke v. City of Dubuque C. Burgess v. Seligman D. Baltimore & Ohio R.R. Co. v. Baugh E. Kuhn v. Fairmont Coal Co. F. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. IV. The Promise Of ERIE To Adequately Address Separation Of Powers And Federalism Issues Raised By The Rules O...
The federal question jurisdiction of the federal courts. A. The Limits on the Federal Question Jurisdiction of the Federal Courts. B. Merrell Dow and the Introduction of the Private Right of Action. C. Grable: Private Right of Action as a Congressional Veto. II. The scholarly account of incorporation jurisdiction. A. The Federalism Account. B. The Article III Account. C. The Prudential Account. III. The erie doctrine and the limits of federal judicial common law powers. IV. Merrell dow as an article i limitation. A. The Two Classes of Incorporation Claims. B. The Nature of the Federal Interests in State Law Container Claims. C. A New Theory of Incorporation Jurisdiction. V. Conclusion.
It is a common refrain among politicians that judges should not "legislate from the bench." Given the Constitution's division of powers between the legislative and judicial branches, this political catchphrase undoubtedly expresses a constitutionally valid sentiment, but it is difficult to apply in practice largely because the separation of powers doctrine from which it arises is so murky. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court, without any explicit statutory authority, inferred directly from the Constitution a private right of action for damages against federal officials who violated constitutionally protected rights. Evaluated through the collective lens of the deference and institutional competence principles, the reflexive adherence t...
Until recently, the Supreme Court's decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. was treated as something of a dead end. To be sure, the judgment - effectively striking down the bankruptcy court system erected by Congress in 1978- had a profound impact on the shape of bankruptcy law and practice. Likewise, the Court's inability to speak through a majority opinion injected a dose of jurisdictional uncertainty into later bankruptcy litigation. As a doctrinal moment, however, Northern Pipeline was considered mystical and fleeting, because the reasoning employed in Justice Brennan's plurality opinion did not mark the path the Court took in subsequent Article III cases. Rather than adhere to the plurality's attempt to craft categorical cubbyholes for the exercise ...
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