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The Constitutional (and Political) Safeguards Against Impeachment
Get PDFWill the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the great legal scholar Professor Herbert Wechsler, are easily described as constitutional safeguards. They are political in the sense that they are part of our democracy, and not political in the sense that they are lawless or partisan. In this short Article, I expand on this claim, arguing that these “political” safeguards emerge from what Professor Charles Black called basic constitutional structures and relationships
Unconstitutional State Special Laws: Is Rational Basis Review the Rational Solution?
Get PDFFor centuries, scholars, judges, and lawmakers have argued over the role of the judiciary in striking down laws created by a democratically elected legislature. This problem has come to be known as the “Countermajoritarian Difficulty.” The famous Carolene Products footnote offers one widely accepted answer to the Countermajoritarian Difficulty. It stipulates that the judiciary should only invalidate laws that violate fundamental rights specified in the Constitution, disadvantage discrete or insular minorities, or undermine the political process. This approach promised judicial deference and allowed the legislature to create economic regulations. Debates on this subject typically involve federal courts. However, the Supreme Court of Missouri’s decision in City of Aurora v. Spectra raises these same issues on a state level
Appraisal of the Success of the Instruments of International Commercial Arbitration Vis-à-vis International Commercial Litigations and Mediation in the Harmonization of the Rules Of Transnational Commercial Dispute Resolution
Get PDFThis article compares the major instruments of International Commercial Arbitration (hereinafter ‘ICA’) with the instruments of International Commercial Litigation and Mediation. By so doing, the article comparatively assesses the success of ICA, litigation, and mediation as alternative mechanisms of transnational commercial dispute resolution. Accordingly, the article argues that, while the ICA is not the only means of transnational commercial dispute resolution, it will continue to be the most successful means of dispute resolution, playing the dominant role in harmonizing the rules of transnational commercial dispute resolution. However, the article also argues that, over time, transnational commercial litigation and mediation are becoming more viable alternatives to ICA in resolving transnational commercial disputes
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After McGirt?
Get PDFThis article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV looks more broadly at the implications for sovereignty and environmental justice in Indian Country. This article concludes by advocating approaches for strengthening tribal sovereignty and promoting tribes as producers of extractive and energy resources
Reforming Qualified-Immunity Appeals
Get PDFThe Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those appeals. And the courts have given defendants nearly every opportunity to take qualified-immunity appeals, even if that means multiple appeals in a single action
Using International Human Rights Law to Address Hunger in the U.S.
Get PDFInternational human rights law recognizes a right to adequate food. The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) upholds “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.” The right is further enumerated in international law through additional conventions and standards and is continuously being interpreted and analyzed by United Nations (“U.N.”) expert bodies. The United States (“U.S.”), though a signatory to several international human rights conventions, including the ICESCR, has not ratified any convention that would make the right to adequate food enforceable; and the U.S. does not explicitly recognize a right to adequate food in its Constitution or in federal law. The current state of food insecurity and the strategies for addressing hunger in the U.S. are far from what international human rights standards dictate. The growth of more than 60,000 private charitable organizations distributing food to tens of millions of people in need is a clear indication that Americans are not guaranteed the right to food. The COVID-19 pandemic has further exacerbated and revealed the systemic inequities in the food system, which result in hunger and food insecurity. Around 57.4 million Americans have filed for unemployment since the start of the pandemic. The number of insecure people in the U.S. is expected to climb from 37 million pre-pandemic to more than 50 million by the end of the year. Ideally, the U.S. should ratify and implement the ICESCR; however, until it does so, this paper recommends that government actors draw on the comprehensive approach to the right to food under international human rights law to alleviate some of the issues that plague access to adequate food in the U.S. today. The international law approach to the human right to food does more than provide a framework of concrete standards and goals, as well as practical tools for exerting political pressure and facilitating coalition-building and mobilization. The framework also draws on the international community for its legitimacy, rather than on the fluctuations of political preferences at the national or subnational level. The international community is progressing toward the legal and practical realization of economic, social, and cultural (“ESC”) rights, and the U.S. is poised now to benefit from that process if it is willing to apply the standards and structures of the international human rights regime. This paper includes an overview of hunger and food insecurity in the U.S. as well as of the U.S.’s relationship to international human rights law and U.N. advocacy. A discussion then follows on current efforts to enshrine the human right to food as understood by international human rights norms in state constitutions in Maine and West Virginia. Next, this paper reflects on challenges and lessons learned from ongoing legislative efforts and opportunities to translate state and local gains in Maine to other states. Finally, the paper reflects on the role of U.N. advocacy by a growing national right-to-food movement in strengthening standards and policies to address hunger and food insecurity in the U.S
The Ultimate Congressional Workaround: Why Businesses Should Advocate the Return of a Robust and Originalist Nondelegation Doctrine after NFIB v. OSHA and Biden v. Missouri
Get PDFAt the height of the COVID-19 pandemic, the Biden administration looked for a way to stop the spread of the virus. To stop the spread, the Biden administration announced a COVID-19 vaccine mandate for all businesses with over 100 employees and for all healthcare facilities receiving funds from the Center for Medicare and Medicaid Services (“CMS”). OSHA and CMS would administer the mandates, respectively. The agencies needed to administer the vaccine mandate because Congress failed to enact a mandate, and the agencies had broad and indefinite regulatory power in enacting public health measures. In NFIB v. OSHA the United States Supreme Court put the business vaccine mandate on hold relying on the major questions doctrine, which states that administrative agencies may not decide questions of economic or political significance without clear congressional authorization. In Biden v. Missouri, the Court allowed the vaccine mandate to go into effect for healthcare workers. The Court was satisfied that the Secretary of Health and Human Services had adequate statutory authority to implement the mandate for healthcare workers. These two decisions left unclear implications for businesses within the realm of the nondelegation and major questions doctrines. Then in West Virginia v. EPA, the Supreme Court added some clarity to the major questions doctrine but failed to fully explain when the doctrine applies. This article posits that the United States Supreme Court should adopt an originalist and more robust nondelegation doctrine to protect businesses from overreaches by the federal government and administrative agencies. While the Court’s recent use of the major questions doctrine was a step in the right direction, a more robust nondelegation doctrine is needed
References to Robert Frost\u27s Poetry in Advocacy and Judicial Opinions
Get PDFThis article concerns courts whose written opinions have recently cited and quoted Frost and his poetry. By profiling Frost’s enduring influence, the article fortifies a theme I have presented in earlier “Writing It Right” articles. The theme begins in the courts, which in recent years often accent their opinions’ substantive or procedural rulings by quoting or citing well-known cultural markers from literature, sports, or popular entertainment