June 16, 2021

Good Faith Defenses of Existing Law

March 9, 2021 guardrails93x 0

Traditionally, it has been left up to the attorney general to determine how and when to defend lawsuits challenging existing law. But there has been a growing trend for the executive branch to refuse to defend existing law against legal challenges. Too often, these decisions appear to be a politically-motivated effort to get the courts to strike down laws that the president cannot convince congress to repeal. Should the attorney general be required to actively defend existing laws both in the trial court and through the appellate process? Would such a rule be constitutional?

The Vacancies Act

February 22, 2021 guardrails93x 0

The current Vacancies Act, passed in 1998, is the latest iteration in an ongoing-struggle to balance the need for efficiency and continuity with the requirement that the Senate approve presidential appointments found in Article 2, § 2 of the U.S. Constitution. The statutory scheme is confusing, in that there is often more than one method by which a vacancy can be filled. It also allows the president to staff key positions for up to 17 months at a time with “acting heads” who have never been senatorially confirmed in their positions. If a president is willing to openly game the system, he can make do with unconfirmed executive officers for years. Should the Vacancies Act be reformed both to rationalize […]

The Electoral Count Act

February 5, 2021 guardrails93x 0

The Electoral Count Act of 1887 specifies the procedure by which Congress counts the votes of the Electoral College which determine who will be the next President of the United States. In the past, this has been a purely ceremonial event which merely confirms the results of the November election. In 2013, the process took a total of 23 minutes. Though it has not received much attention until this year’s controversy surrounding Republican efforts to challenge electoral votes from swing states, the ECA is often ambiguous. Moreover, it reflects certain nineteenth century assumptions that we no longer share. For example, the ECA assumes that counting Electoral College votes is a political process whereas we view vote counting – even Electoral […]

Protecting Inspectors General

December 17, 2020 guardrails93x 0

Inspectors general are executive branch officers who serve at the pleasure of the president. But they are also vital watchdogs tasked with ensure both the efficient and the legal operation of the departments they oversee. As inspectors general may often discover and expose politically embarrassing mistakes or even criminal activity, they are often in conflict with the administrations they serve. Nonetheless, their independence is a vital element of our system of checks and balances. What is the best method of protecting inspectors general from political interference? How can these protections be implemented without impermissible intruding on presidential authority?

Presidential Pardons

November 11, 2020 guardrails93x 0

The pardon power granted to the president under Article II, § 2 of the U.S. Constitution is intentionally broad. While the president has no power to pardon violations of state law, the president has apparent plenary authority “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Until recently, it had never occurred to anyone that the president’s power to issue pardons might extend to pardoning him or herself. While there are arguments against such a reading of the Constitution, the plain language does not forbid it. Is a constitutional amendment required to clarify that the pardon power does not include self-pardons? Should the exclusion also include the president’s family or people who have […]

The Guardrails of Democracy Project

October 11, 2020 guardrails93x 0

The last few years have been a warning shot across America’s bow. They’ve tested our democratic institutions to their limits, and in some cases beyond those limits. And we’ve learned some valuable lessons. First, there’s a lot of deferred maintenance in our system of checks and balances. We’ve been too complacent for too long. Too many things have been taken for granted and too many powers transferred from congress to the executive with the informal understanding that the president will exercise those powers only with the utmost gravitas and responsibility. Second, if we’ve learned nothing else, it is that well-thought-out laws are important and that it is unwise to rely on the goodwill, civic-mindedness and political courage of our politicians […]

The Statute of Limitations

October 11, 2020 guardrails93x 0

Statutes of limitations provide cutoff dates for criminal prosecutions. Once the statute of limitations expires, the government may no longer bring charges against a criminal suspect. For most federal crimes, the statute of limitations is five years. With respect to the President of the United States, however, the statute of limitations presents a problem because it is Justice Department policy that a sitting president cannot be indicted. While it is unclear whether this policy is constitutionally required, and while it has never been tested in court, indicting a sitting president would pose immense practical problems even if it were technically constitutional to do so. Consequently, even a one-term president is effectively immune from prosecution for many uncharged crimes if they […]