Tag Archives: Separation of Powers
President Trump Clashes with Legal Oversight in Three Cases to be Argued at the Supreme Court

Associate Dean for Research & Scholarship and Professor of Law at Touro Law Rodger D. Citron comments on three cases coming up for oral argument before the U.S. Supreme Court. Citron observes that if the other eight justices vote along ideological lines, Chief Justice John Roberts will cast the deciding vote in those pivotal cases.

Seila Law LLC v. Consumer Financial Protection Bureau: The Supreme Court Considers Whether an Independent Agency with a Single Director Who Can Be Removed Only “For Cause” is Constitutional

Rodger Citron, Associate Dean for Research & Scholarship and Professor of Law at Touro Law, comments on a case in which the U.S. Supreme Court will hear argument this week that presents the question whether an independent agency with a single director who can be removed only “for cause” violates the separation of powers principle enshrined in the Constitution. Citron notes that the decision to hear the case is unusual in that there is no conflict among the federal appeals courts, but he points out that that the government’s support of the cert. petition and then-Judge Brett Kavanaugh’s dissent on the issue when it came before the D.C. Circuit likely helped the present case come before the Court.

A Tale of Two Nixons: Executive Branch Officials Must Comply with House Subpoenas

Cornell law professor Michael C. Dorf explains why U.S. Supreme Court cases—confusingly, Nixon v. United States and United States v. Nixon—together should foreclose any legal arguments that might have supported President Trump’s strategy to fight impeachment. Dorf explains each of the precedents and their bearing on today’s situation.

Exactly What Are the Rules Concerning Supreme (or Other Federal) Court Review of Impeachment Proceedings?

Illinois law dean and professor Vikram David Amar comments on President Trump’s recent tweet suggesting that if the Democrats were to try to impeach him, he would ask the Supreme Court to block the impeachment. Amar argues that while critics of that assertion are correct, the legal matter is more complicated than might appear at first blush.

Matthew Whitaker and the Constitution’s Appointments Gaps

Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution.

No, Oversight Power Does Not Let Congress Ride Shotgun in Criminal Investigations

Guest columnist and former US Congressman Brad Miller explains why Congress may not intrude on an open criminal investigation, especially not to help political allies who are likely targets. In support, Miller points not only to traditional democratic norms, but also to unequivocal jurisprudence on the limits of congressional oversight.

Supreme Court Divides Over What a Law Is

Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Mr. No-Government President Discovers the Government

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how the separation of powers built into U.S. democracy is working as it should to prevent abuses of power by, at this time, the executive. Hamilton points out that federalism—the balance of power between state and federal government—also plays a significant role in curbing abuses of power.

Constitutional Lessons from the Senate’s Quick Processing of President-Elect Trump’s Cabinet Picks?

Illinois Law dean and professor Vikram David Amar describes two lessons we should take away from the Senate’s processing of President-elect Trump’s nominees for his Cabinet. First, Amar explains the constitutional difference between executive and judicial appointments. Second, Amar explains the relatively long time between the end of the election and when the president-elect actually takes office, and also proposes a way to reduce this period and ease transition.

Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times

Illinois Law dean and professor Vikram David Amar comments on the Separation of Powers Restoration Act of 2016, a bill that, if passed, would undo the U.S. Supreme Court’s ruling in Chevron U.S.A. v. Natural Resources Defense Council. Amar points out that support for the doctrine of Chevron deference has fluctuated based on which political party occupies the White House, and there may even be a constitutional argument against Chevron’s preference for agencies over courts.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more