Issues

When someone ignores a congressional subpoena, the House or Senate can vote to hold that person in criminal contempt. In order to enforce the subpoena, however, congress must refer the case to the executive branch where the Department of Justice decides whether or not a criminal prosecution for contempt is warranted. When the person ignoring the subpoena is a member of the executive branch itself – as is often the case – this sets up a conflict of interest. Since this procedure also, in effect, allows the executive branch a veto power over who congress may compel to testify in a congressional investigation, it also creates a serious separation-of-powers issue. The judicial branch has resolved this conflict through Rule 42 […]

Passed in 1871, 42 USC § 1983 gives individuals the right to sue state officials if those officials violate their constitutional rights. Originally conceived of as a way of ensuring that local officials did not violate the recently-ratified Fourteenth Amendment, the statute does not authorize lawsuits against the federal government. In 1971, in a case called Bivens vs. Six Unknown Federal Narcotics Agents, the Supreme Court partially extended Section 1983 to the federal government and authorized individuals to sue the federal government when their Fourth Amendment rights were violated. Subsequently, however, the Supreme Court has been reluctant to extend these Bivens actions, going so far as to rule in 2022, in Egbert v Boule, that, absent congressional authorization, the federal […]

There is a long-standing prohibition that prevents the federal government for either indicting or suing a sitting president. There is, however, no current prohibition on sitting presidents suing the federal government which they head. A sitting president might be legally required to file suit while in office in order to preserve a claim. On the other hand, such a suit presents a clear conflict of interest. Even in the best case, federal officials may be reluctant to mount a vigorous defense of the government’s interests when that defense is also an attack on the president. In the worst case, a sitting president could simply order the government to settle the lawsuit in the president’s favor. Should federal law be modified […]

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 […]

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 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 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 […]

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?