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Articles 1 - 11 of 11

Full-Text Articles in Political Science

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo Jun 2016

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

Faculty Scholarship at Penn Law

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law ...


Daca/Dapa And The Relational Conception: An Assessment Of Inter-Branch Conflict Over Constitutional Authority In Immigration, Yessenia Moreno Mar 2016

Daca/Dapa And The Relational Conception: An Assessment Of Inter-Branch Conflict Over Constitutional Authority In Immigration, Yessenia Moreno

CUREJ - College Undergraduate Research Electronic Journal

In the history of the American republic, no branch of government has increased its powers more than the Executive Branch and no area of policy, arguably, has caused as much intense inter-branch conflict in recent years as immigration. Since the last major bipartisan immigration reform in 1986, Presidents have time and again exercised their executive powers to make immigration policy. Most of these exercises of power have been in the form of executive orders and actions granting reprieve from deportation to groups of undocumented immigrants. With the rise of illegal immigration in the 90s and steady decline in recent years ...


The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle Feb 2016

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

Faculty Scholarship at Penn Law

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.


“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer Feb 2016

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

Faculty Scholarship at Penn Law

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and ...


Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth Jan 2016

Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth

Faculty Scholarship at Penn Law

The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative ...


The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel Jan 2016

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice ...


The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters Jan 2016

The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Faculty Scholarship at Penn Law

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and ...


Presidential Signing Statements: A New Perspective, Christopher S. Yoo Jan 2016

Presidential Signing Statements: A New Perspective, Christopher S. Yoo

Faculty Scholarship at Penn Law

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly ...


Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith Jan 2016

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking ...


The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley Jan 2016

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

Faculty Scholarship

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides ...


The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz Dec 2015

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Bruce Ledewitz

American Democracy has broken down.  This crisis was on dramatic display in the 2016 Presidential Campaign.  Americans are resentful, distrustful and pessimistic.  We find it easy to blame “the other side” for the deadlock, mendacity and irresponsibility in American public life.  By virtue of their public role, American law schools have an obligation to address the breakdown in order to understand and try to ameliorate it.  That task is currently unfulfilled by law schools individually and collectively, which are distracted by marketing and pedagogy.  Religious law schools, which retain the traits of normative discourse, mission, Truth and tragic limit to ...