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Presidential Laws and the Missing Interpretive Theory
Get PDFThere is something missing in interpretive theory. Recent controversies-involving, for example, the first travel ban and funding for sanctuary cities-demonstrate that presidential laws (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that does not seem right: theories of interpretation depend on both constitutional law and institutional setting. For statutes, the relevant law comes from Article I and the procedures governing Congress. For presidential directives, the starting point must be Article II. This Article contends that Article II and the distinct institutional setting of the presidency point toward textualism. Article II, particularly the Opinions Clause, gives the President considerable power to structure the process by which he issues directives. Drawing on various sources-including the author\u27s interviews with officials from the Trump, Obama, and other administrations-this Article offers a window into that process. Since at least the 1930s, Presidents have invited agency officials to draft, negotiate over, and redraft presidential directives. The final directive signed by the President may not reflect his preferred substantive policy; instead, Presidents often issue compromise directives that reflect their subordinates\u27 recommendations. This Article argues that courts respect that structure, and hold Presidents accountable for any mistakes, by adhering closely to the text. Thus, whatever one thinks about honoring the textual compromises that come from Congress, there are independent and important reasons to hew strictly to the text that comes from the White House. Notably, this analysis has important implications not only for interpretive theory but also for broader questions about the constitutional separation of powers. In an era of ever-expanding presidential power, Presidents have at times (surprisingly) allowed themselves to be constrained by their own administration
The Impact of Cannabis Access Laws on Opioid Prescribing
No full textWhile recent research has shown that cannabis access laws can reduce the use of prescription opioids, the effect of these laws on opioid use is not well understood for all dimensions of use and for the general United States population. Analyzing a dataset of over 1.5 billion individual opioid prescriptions between 2011 and 2018, which were aggregated to the individual provider-year level, we find that recreational and medical cannabis access laws reduce the number of morphine milligram equivalents prescribed each year by 11.8 and 4.2 percent, respectively. These laws also reduce the total days’ supply of opioids prescribed, the total number of patients receiving opioids, and the probability a provider prescribes any opioids net of any offsetting effects. Additionally, we find consistent evidence that cannabis access laws have different effects across types of providers, physician specialties, and payers
Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice
Get PDFWe describe a new consensual theory of borders and immigration that reverses Peter Schuck\u27s and Rogers Smith\u27s notion of citizenship by consent and posits that borders are legitimate and make sense only if they are products of consent on the part of both countries on opposite sides of them. Our approach, in turn, leads to differential borders that address the many sovereignty and federalist problems inherent in border design by a close examination of the policies that different borders for example, the one between California and Mexico-need to serve in light of the populations living nearby. We build on our work on border laws as examples of Jacques Derrida\u27s originary violence. We assert that laws that exhibit a high degree of originary violence lead, almost ineluctably, to actual violence and cruelty, such as that perpetrated by Donald Trump\u27s child-separation policy, and that consensual and relatively open borders are the most promising way to minimize both forms of violence, originary and actual
Essentializing Labor Before, During, and After the Coronavirus Pandemic
Get PDFIn the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers\u27 advocates, and politicians have scrambled to articulate exactly what makes essential labor essential. Some commentators have also argued that the rise of essential labor as a conceptual category disrupts or should disrupt longstanding patterns in the way the nation regulates work.
Contrary to this emerging narrative, this Article argues that essentiality is not at all new to the way we conceptualize and regulate labor in the United States. If anything, essential labor replicates and exacerbates an attitude that has always been central to American work law: the idea that work should be measured, classified, regulated, and remunerated according to how much it benefits someone other than the worker. The only thing that has changed as a result of the coronavirus pandemic is the referent in this analysis: essential to whom? Before the pandemic, the United States considered work to be essential when it was essential to the employer; during the pandemic, essential labor has come to mean tasks that are essential to society as a whole. In neither scenario is the relationship between the worker and their work at the center of legislation, adjudication, or business operations.
This Article therefore offers a novel proposal: a worker-centric analysis demonstrates that, in the United States, labor is always essential to the worker. This is both legally true, in the sense that this country ties physical and financial well-being to employment status more than any other highly developed nation, and it is morally true, in that social science scholarship and human rights discourse have established the critical relationship between work and human flourishing. In light of this, the Article contends that the longstanding and idiosyncratically American concept of at-will employment, whereby work relationships can be terminated upon no notice and for any reason, fails because it neglects to account for the extent to which labor is essential to workers. Relinquishing the concept of at-will employment will not by itself solve all the problems bedeviling American work law, but it is an important and necessary first step toward fixing those problems and implementing the true labor and employment law lesson of COVID-19
Rethinking Standards of Appellate Review
Get PDFEvery appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court\u27s framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court decisions.
The error-correction role of appellate courts would be optimized by a unified inquiry into whether the appellate court\u27s likelihood of reaching the correct decision is higher than the trial court\u27s. This new standard would consider both general institutional advantages (such as the trial court\u27s superior ability to assess witness credibility) and case-specific indicia of correctness (such as the appellate court\u27s level of confidence or particular strengths or weaknesses in the trial court\u27s analysis). This inquiry can be joined with the Supreme Court\u27s long-standing view that appellate courts may always correct legal errors de novo, regardless of the broader standard of review that applies to a particular issue. That power to correct legal errors, combined with the ability to identify conditions that increase or decrease the likelihood that a court\u27s decision on a particular issue is correct, would enhance the law-clarification function of appellate decisions.
Accordingly, this Article argues for a uniform approach to appellate review that permits reversal only when (a) the trial court committed an error of law, or (b) the appellate court\u27s likelihood of reaching the correct decision is higher than the trial court\u27s. These two components eliminate the need to track particular issues for either de novo or deferential review at the front end, allowing appellate courts to discard the Supreme Court\u27s problematic doctrine on standard-of-review selection while still serving the systemic goals of error correction and law clarification
