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Disappropriation
Get PDFIn recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”
The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include Medicaid and scores of other important, permanent features of the administrative state. The Article’s core descriptive contribution is to explain that while dissonance between Congress’s legislative and appropriations powers creates the destructive possibility of disappropriation, it can also preserve for Congress enduring influence (over the executive) and majoritarian control (against the “dead hand” and leadership) that Congress would surrender if it instead exercised both its legislative and appropriations powers permanently.
This insight––-that Congress’s ability to legislate permanently but appropriate temporarily makes disappropriation possible but also alters the balance of powers—has theoretical implications for constitutional doctrine, the separation of powers, the design of new legislative commitments, and efforts to reduce the harms of disappropriation. The Article’s normative component addresses the regulation and adjudication of disappropriation in light of these implications. It conceptualizes shutdowns as aggregations of distinctive disappropriations and cautions that prior scholarly analyses of proposals to prevent shutdowns by financially penalizing legislators for failing to appropriate funds necessary to honor pre-existing commitments are incomplete because they fail to consider upstream impacts on the balance of powers. And it explains that courts could play a salutary role without interfering with the balance of powers by favoring rules that promote durability but not entrenchment, that is, by adopting rules that tend to reduce the ex ante likelihood of disappropriation without undermining the credibility of the threat of disappropriation. In practice, this weighs in favor of judicial approaches that prevent inadvertent disappropriation by reducing uncertainty and private information. Courts should therefore adopt an interpretive presumption against disappropriation, empower civil servants to enforce disappropriation ex ante rather than empower Congress to do so ex post (as the House of Representatives sought to do in House v. Burwell), and endeavor to adjudicate actions seeking damages in the aftermath of disappropriation in ways that make the availability of such damages more predictable while avoiding interference with the political branches
The Operational and Administrative Militaries
Get PDFThis Article offers a new way to think about the military. In doing so, I argue that there are, in fact, two militaries residing within the Department of Defense (DoD): an “operational” and an “administrative” military.
In Part II, I propose this new two-military analytical framework. This Part begins with a brief historical overview of the dual-military state and argues that these two militaries coexisted in some form since the nation’s founding, grew further apart following World War II and the National Security Act, and effectively separated following the passage of the 1986 Goldwater-Nichols Act.
Part III analyzes the Goldwater-Nichols Act of 1986. This Act, largely unexamined by existing legal scholarship, establishes the lawful civil-military chain of command, critical to ensuring objective civilian control of the military. Under the DoD’s agency design, the civilian Secretaries of the military departments are effectively relegated to a secondary role as the heads of the administrative military, in support of the uniformed military combatant commanders. The operational military commanders, in turn, are increasingly delegated broader war-making authorities, accelerating independent executive action at the expense of congressional oversight.
Part IV addresses the two-military divide’s consequences, many unintended. Adrian Vermeule, David Dyzenahus, and other scholars have described the emergence of aptly named “black holes” and “grey holes” and their effects on administrative law governance during times of war and emergency. Such holes serve as legal trap doors that exempt or modify oversight over certain agency actions depending on external factors. But there are also internal factors unique to DoD and its organizational design—what I refer to as “institutional holes”—where administrative law may or may not apply. And within these institutional holes, governmental actions are often shrouded in secrecy—itself a form of regulation.
Part V addresses several independent accelerants of this two-military divide. Finally, Part VI provides initial recommendations with an eye toward strengthening civilian control of the operational military and reforming national security governance. A brief conclusion follows
Iraqi Women as Legally Vulnerable Subjects: Applying Gender-Mainstreaming and Vulnerability Theory in the Post-Conflict Iraqi State
Get PDFDespite U.N.S.C.R 1325 being hailed as a momentous breakthrough for women in international law, such post-conflict reconstruction policies that rely on injecting women into the peacemaking process to achieve gendered equality prove ineffective and dangerous when applied to foreign nations torn apart by war. In the context of post-conflict Iraq, Resolution 1325 not only rendered Iraqi women more vulnerable as symbols of western invasion but failed to address the crumbling state infrastructure that left women without electricity, clean drinking water, employment, food, and security. This Comment argues that the ¿add women and stir¿ equality of Resolution 1325 must be abandoned in favor of reconstruction following Martha Fineman¿s Vulnerability Theory. Vulnerability Theory focuses instead on rebuilding the political, economic, and social infrastructure of the post-conflict state, ameliorating the conditions that exacerbate vulnerability, recognizing that poverty, diminished access to life-saving resources, unemployment, and insecurity intersect with gender to perpetuate suffering and violence
Fighting the Three Evils : A Structural Analysis of Counter-Terrorism Legal Architecture in China
Get PDFIn the aftermath of September 11 attacks, China has not been immune to the global trend of destructive terrorism. However, China\u27s perceptions of terrorism and legal responses to it greatly diverge from those of other countries. This Article first seeks to understand the cause, source, and impact of terrorist threats in China, known as \u27Three Evils\u27\u27terrorism, extremism, and separatism, through a critical inquiry of the country\u27s ethnic and religious policies. It then proceeds to delineate China\u27s legal framework for combating the \u27Three Evils\u27 to explore the cultural characteristics of the government\u27s approach against these rising threats. Tracing the evolution of the country\u27s counter-terrorism laws and policies, this Article argues that China has developed an operational infrastructure composed of four strands to fight terrorism: crackdown, criminalization, control, and cooperation. This framework of \u27four Cs\u27 operates within a vertically coordinated system by deploying diverse strategies and measures to regulate terrorism-related acts according to their level of severity and risk. While crackdown and criminalization serve mainly as reactive responses to terrorist violence through repression and retribution, control and cooperation are largely used as pre-emptive instruments to prevent substantial terrorist acts through incapacitation and community policing
NATO at 70: The NATO Legal Community\u27s Contribution
Get PDFThe community of NATO has grown considerably since the North Atlantic Treaty was signed on April 4, 1949. The NATO community contains a vast network of legal advisors and contributors who have provided much toward the growth and development of the North Atlantic Alliance itself. This Article starts by addressing a few of the historical events that lead to the signing of the North Atlantic Treaty, followed by events taking place in today¿s time that reflect the contributions of the NATO legal community. The Article brings to light the motivating ideas and factors that have led the NATO legal community to reflect on the purpose and establishment of the North Atlantic Alliance, directed toward both the global landscape in 1949 and today in 2019. Lastly, the Article gives a comprehensive review of the legal commentary on the North Atlantic Treaty
State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms
Get PDFSocial media platforms like Facebook are increasingly the arbiters of what political viewpoints get the light of day. As more people become active on social media, including using it as a primary news source, and as political speech increasingly moves onto these platforms, they will continue amassing the power to control news narratives, the size of speakers’ bullhorns, and the ideas that get discussed. Moreover, these platforms will likely face increasing external pressures to silence certain viewpoints deemed objectionable or offensive, whatever those views may be. The United States Constitution provides no check on this power. As private actors, social media platforms can ban whatever speech they want, and for whatever reason, subject only to market pressures. Simply, the First Amendment, based on its text and longstanding precedent, does not apply. There may be another way to safeguard speech online, however. This Comment proposes looking to a different source of law, one all too often overlooked in litigation and scholarship: state constitutions. Nearly all state constitutions have free speech clauses that are textually different from the First Amendment in ways suggesting state action requirements can be softened or even jettisoned. Moreover, a handful of states have interpreted their free speech clauses as being broader than the First Amendment and applying to certain private actors—an approach with express approval by a unanimous United States Supreme Court. This case law provides reasoning applicable to a new and modern dilemma: the gravitation of political speech to social media platforms
Therapeutic Expression
Get PDFThis Article explores the relationship between free speech and harm. Examining the historical First Amendment justifications, it argues that harm is a relevant criterion in determining the scope of speech protection. But this Article also resists the notion that speech should be restricted solely based upon resultant damage, demonstrating instead that the freedom to speak freely actually forestalls rather than causes individual and societal harm. Drawing upon psychological and sociological theories related to the treatment of sex offenders, the Article posits that the ability to engage in free expression is critical to preventing physical and emotional damage to others. Individuals who have the ability to speak freely about their emotions, opinions, and identities are less likely to engage in rebellion, aggression, and crime. In this way, free speech provides a therapeutic alternative to harmful behavior. These therapeutic qualities of expression provide a justification for protecting rather than silencing it
Lighting the Way: The Johnson Amendment Stands Strong against Dark Money in Politics
Get PDFWrapping itself in the cloak of \u27religious freedom,\u27 the current administration, supported by many conservative members of Congress, has overtly pursued repeal of the Johnson Amendment, an oft-cited clause in the Internal Revenue Code that prohibits certain nonprofit organizations from endorsing political candidates or making campaign contributions. The consequences of deregulating the prohibition on tax-deductible political donations could imperil our country\u27s traditions of electoral process
History Repeats Itself: Some New Faces Behind Sex Trafficking Are More Familiar Than You Think
Get PDFSociety is rightly outraged to see America\u27s dark history of slavery repeat itself in the form of human trafficking. However, society should be equally concerned about the new face of those who support human trafficking: components of mainstream corporate America. A review of the relevant history of antebellum slavery reveals that one reason why antebellum slavery continued as long as it did was because of the support it received from economic interests that benefited directly and indirectly from the exploitation. Sadly, that reality is once again apparent today as human trafficking thrives in the world in part because it is profitable to the traffickers and others. It is so profitable that legitimate businesses that benefit from it\u27or from the structures that allow it to thrive\u27are willing to tolerate it and actively thwart efforts to end human trafficking. This Essay examines these historical parallels and advocates that human trafficking cannot be defeated until such entities are willing to place human beings above profits