Executive power

  • January 29, 2018

    by Lisa Manheim, Associate Professor of Law, and Kathryn Watts, Jack R. MacDonald Endowed Chair, University of Washington School of Law 

    Over the course of the past year, a seemingly endless stream of questions have emerged concerning what the law does, and does not, allow the President of the United States to do. For example, can the president build his promised wall along the U.S.-Mexico border? Can he impose a “shutdown” of Muslims entering the United States? Can he rollback various Obama-era environmental regulations, such as the Clean Power Plan? Can he fire Robert Mueller?

    Notably, these sorts of questions are being asked not only by lawyers and others in the legal arena. They are being asked by people all across the country.

    In response to these types of questions, we wrote a guide aimed at a general audience that provides a crash course on the laws that both empower and limit the President of the United States. That book, The Limits of Presidential Power: A Citizen’s Guide to the Law, is now available. We hope that our book provides an accessible and understandable guide to the what, why, and how of the laws that both govern the president and empower citizens.

  • January 17, 2018
    Guest Post

    By Steven D. Schwinn, Professor of Law, the John Marshall Law School

    Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

    What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

    Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

  • January 5, 2018
    Guest Post

    by Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

    *This piece was originally posted on Take Care.

    Yesterday, lawyers for Paul Manafort, President Trump’s former campaign manager, filed a civil suit in the U.S. District Court for the District of Columbia, seeking to void the appointment of Robert S. Mueller III as special counsel, set aside Mr. Manafort’s indictment, or, at the very least, curtail Mr. Mueller’s authority to investigate whatever business dealings of Mr. Manafort were unrelated to the 2016 presidential campaign.

    Among other charges, Mr. Manafort was indicted on October 27, 2017 on allegations of conspiracy to launder money, conspiracy against the United States, being an unregistered agent of a foreign principal, and making false and misleading statements under the Foreign Agents Registration Act.

  • December 22, 2017
    Guest Post

    by Jed Shugerman, Professor of Law, Fordham University School of Law

    *This piece was originally posted on October 20, 2017 on Shugerblog.

    On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”

    Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.

  • December 22, 2017
    Guest Post

    by Leah Litman, Assistant Professor of Law, University of California, Irvine School of Law and Daniel Hemel, Assistant Professor of Law, University of Chicago Law School. 

    *This piece was originally posted on Take Care

    “Congress is not a potted plant.” So says Judge George Daniels of the federal district court for the Southern District of New York in a decision dismissing a lawsuit against Donald Trump for violating the Foreign and Domestic Emoluments Clauses. We agree with that—for one thing, potted plants are much easier to move. But Congress’s status as something other than a potted plant provides little support for the district court’s conclusion that the plaintiffs in CREW v. Trump lack standing to sue the President.