The Legislative Veto: Invalidated, It Survives

The Supreme Court\u27s decision in INS vs Chadha is examined, and the origins of the legislative veto and its traditional place in the lawmaking process is discussed

The Presidency, War, and Foreign Affairs: Practice Under the Framers

Varje år träder ca 50 000 människor ur Svenska kyrkan och avsäger sig därmed rätten att begravas i Svenska kyrkans ceremoniella ordning och lokaler. Man träder ut ur kyrkans ordning, och ut ur kyrkans rum, men man träder inte in i något annat. Mitt kandidatarbete är ett försök att visa på en annan ordning och andra rum. Every year some 50 000 people exits the Swedish Church and disclaims thus the right to be buried in the Swedish Church ceremonial order and premises. They leave behind the order of the Church, and exits the church room, but they do not enter anything else. My graduate work is an attempt to present an alternative order and alternative rooms

The Institutional Speech or Debate Protection: Nondisclosure as Separation of Powers

The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative—not legislators\u27—independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch\u27s compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called nondisclosure privilege against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit\u27s construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege

Plural Vision: International Law Seen Through the Varied Lenses of Domestic Implementation

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law. Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to introduce us to the way other states attempt to reconcile international commitments and the domestic constitutional order. The essays collected here were presented in three separate panels during the conference. The organization of the volume follows the same organizational principle. The first three papers thus focus on questions relating to the implementation of international human rights as domestic law. The two papers that follow address issues relating to international obligations and the foreign affairs power. The final section, which comprises four papers, provides a comparative perspective on how other international law is introduced into the domestic legal systems of Australia, Canada, China and the United Kingdom. Each contribution attests to the continuing relevance of Holmes’ dictum: the life of the law is not logic but experience. Programmatic statements in founding documents or in law review articles do not determine the status of international law in the domestic context. It is worked out through the various legal histories of each state. As each state grapples to reconcile its national legal traditions with its international obligations, it is worthwhile to pause and consider the experiences of others. It is our hope that this volume contributes to that process

The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism

This article attempts to accomplish two distinct but related objectives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today\u27s questions. To those ends, part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other significant offices created by the First Congress, such as the Secretaries of Foreign Affairs, War, and Treasury, reveals the priorities and concerns of these early legislators, many of whom had been instrumental in drafting the Constitution. This study reveals that the First Congress approached the question of presidential control with a useful mixture of sensitivity and pragmatism that is insufficiently appreciated today Part II examines the frustrations Edmund Randolph, the first Attorney General, experienced in the office, focusing particularly on his efforts to persuade the courts to enforce Congress\u27s first pension act for disabled veterans of the Revolutionary War. In Hayburn’s Case, a 1792 case well known for its implications for the role of the federal judiciary, Randolph, on behalf of the United States, petitioned the Supreme Court for a writ of mandamus ordering a lower court to administer the Invalid Pensions Act of 1792. But the Court refused to allow the Attorney General to make his motion. Because the Court did not issue a written opinion in the case, it has been difficult to probe its reasoning. However, the unpublished personal notes of Justice Iredell, coupled with contemporaneous newspaper accounts, letters, and other Supreme Court decisions, suggest that the Court\u27s principal concern was whether the President and the Congress had sufficiently authorized the Attorney General to make such a motion. These efforts by Randolph to secure enforcement of the pension law, offering the Supreme Court its first opportunity to consider the respective roles of the President and Congress in controlling the Attorney General, provide us with an excellent, hitherto unexplored, opportunity to examine the early role of the Attorney General.16 Studying this experience reveals that many of the current tensions in our tripartite system of government were evident at its inception. From the beginning, there were questions about whom the Attorney General represented, who should and would control the incumbent Attorney General, and what it means to represent the interests of the United States. In addition, one sees the beginnings of the notably vibrant and enduring debate between those who see the federal courts merely as resolvers of private disputes and those who believe they serve a special function as interpreters and protectors of the Constitution. Finally, part III explores the extent to which these early experiences can contribute to modern debates. As the Article indicates, some of the precise uncertainties and frustrations confronting early Attorneys General already have been resolved. However, many fundamental questions remain: Can Congress order an Attorney General to act without regard to the views of the President? Can Congress place law enforcement responsibilities in the hands of individuals outside presidential control? Can the Attorney General act without clear congressional authorization? The early history cannot answer these questions. Indeed, those who find clear answers in this history are probably distorting the history. But the approach taken by the framers and early interpreters of the Constitution can and should inform our debate

Two houses: legislative studies and the Atlantic divide

Legislative scholars have a history of stepping back occasionally to examine the development and state of the sub-discipline (Budge 1973; Gamm and Huber 2002; Loewenberg, Patterson, and Jewell 1985; Mezey 1993; Morris-Jones 1983; Pasquino 1973; Patterson 1989). Many of these existing reviews, although valuable, are predominantly of a qualitative and subjective nature and are, in most cases, now dated. This paper provides a bibliometrical analysis of the state of legislative studies in the United States and Europe by exploring the content of eight political science journals. I looked at six general political science journals, three originating in the United States and three in Europe, as well as the content of two legislative studies journals—the American-based Legislative Studies Quarterly and the British-based Journal of Legislative Studies

LBJ, the Rhetoric of Transcendence, and the Civil Rights Act of 1968

The Civil Rights Act of 1968 was the result of a complex convergence of presidential public persuasion in a context of increasing domestic violence associated with a series of summer disturbances and the assassination of Martin Luther King, Jr. Analysis of Lyndon Johnson\u27s public discourse supporting the 1968 Civil Rights Act reveals that rhetorical transcendence was employed as a recurrent strategy in attempts to pass legislation