The Constitutional presidency

Trying to Make Peace With Bush v. Gore

The Rule of Law, Freedom, and Prosperity

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

On 22 January 2001, the third day of the new US administration (the day that also marked the twenty‐eighth anniversary of Roe v. Wade, the US Supreme Court decision that liberalized abortion). President Bush issued an executive order, taking the form of a memorandum addressed to the Administrator of the Agency for International Development on the subject of “Restoration of the Mexico City Policy.” The executive order reinstates the US policy promulgated at the International Conference on Population held in Mexico City in 1984 (see “Documents” in the September 1984 issue of this journal). The Mexico City policy was rescinded on 22 January 1993 when President Clinton took office (see “Documents” in the March 1993 issue of this journal). The full text of President Bush's memorandum as released by the White House is reproduced below.

In a recent article published in this Review,' I argued that the Supreme Court's decision in Erie Railroad Co. v. Tompkins2 is best understood as resting on the Supremacy Clause and the associated political and procedural safeguards of federalism built into constitutionally prescribed lawmaking procedures. On this view, the Constitution requires federal courts to follow state law unless the Laws, and Treaties of the United States supply a contrary rule of decision.3 I wrote that piece to address the frequent contention that, notwithstanding the Court's repeated invocations of the Constitution, Erie does not actually rest on constitutional grounds. In a pair of subsequent articles, Professor Craig Green renews this suggestion4 and denies that the Supremacy Clause provides a basis for the decision in Erie or otherwise limits federal lawmaking.5 Although he makes an important contribution to a growing body of Erie-related scholarship, Green gives insufficient weight to the fundamental role that the Supremacy Clause plays in our federal system. Properly understood, Erie implicates both separation of powers and federalism. The former concerns the extent to which

This article discusses the all‐but‐unknown practice of recent presidents to exercise a so‐called “protective return” veto, whereby presidents simultaneously exercise both a return veto and a pocket veto for individual bills. Defended by recent administrations as a defense of the existing pocket veto power, this article argues that it is in fact an attempt to create a practical absolute veto, a power rejected by the Constitution's founders. Veto history and evolution are examined to explain and analyze this effort to redefine the president's constitutional veto authority.

* Introduction 1. Presidential Power and Constitutionalism * Constitutionalism and Executive Power * Dynamic Variables in Emergency Constitutionalism * Emergencies and Constitutional Perspectives 2. Presidents and Constitutionalism * President Lincoln: Popular demand and public necessity * President Wilson: if there should be disloyalty, it will be dealt with with a firm hand of stern repression * President Roosevelt: every possible protection against espionage and against sabotage * President Truman: Within the aggregate of his constitutional powers 3. President Bush and Constitutionalism * Torture * Surveillance * Detention Conclusion: A Call for Executive Constitutionalism * Presidential Power Claims and Constitutional Perspectives * Executive Constitutionalism * Notes * Acknowledgments * Index

There are five major Supreme Court precedents related to inheritance and gift taxes for 2022. In this article, the above five precedents were divided into facts, issues, the position of the Supreme Court, and the significance and evaluation of the judgment in chronological order.
 First of all, the Supreme Court's ruling on March 11, 2022, on whether to invalidate the enforcement ordinance related to Article 41 (1) of the former Inheritance Tax and Gift Tax Act, reaffirmed the position of the Supreme Court's ruling of 2015Du45700 on April 20, 2017 and the Supreme Court's decision of 2019Du35695 on September 9, 2021. The above judgment is valid in that the scope of gifts through corporations is limited through interpretation. However, it is necessary to review whether it is right to follow the materiality and clarity test of the illegality of administrative disposition.
 Second, the Supreme Court's ruling on the taxation and additional tax on the deeming property registered in name of another person to have been donated related to the acquisition of new stocks on September 15, 2022 is about the legal interpretation of the old tax and gift tax law in which the gift tax payer was in principle a trustee at the time of title trust. The target judgment judged that the case in which the title truster acquired new shares as collateral and transferred them under the same person's name, but before the transfer was made, the case in which the loan was repaid with the sale price of the existing title trust shares was not different. From the perspective of sanctions on the total amount of property that is difficult to grasp by title trust, it must be judged as the subject judgment. In addition, it was confirmed for the first time that the subject judgment should be based on the name trustee to determine whether the additional tax is imposed based on the taxpayer. If the above logic is applied to the current tax increase law, it should be judged based on the title truster who is liable for tax payment.
 Third, the Supreme Court's 2022Du33712 ruling on the scope of cancellation of disposition on May 26, 2022 reaffirms the previous precedent (Supreme Court March 28, 1997) that only the portion exceeding the legitimate tax amount should be canceled if the lawsuit for cancellation of the tax disposition exists. It is reasonable in that there is no need to appeal again for parts that exceed the legitimate tax amount.
 Fourth, the Supreme Court's ruling on November 10, 2022, 2020Du52214 is a precedent on whether to recognize self-gifts related to Article 45-3 of the former Inheritance Tax and Gift Tax Act (before amended by Act No. 13557 on December 15, 2015). The above ruling is the first case in which the donor and the recipient cannot be said to be the same, even though the controlling shareholders of the beneficiary corporation are shareholders of a related corporation at the same time. Given that agenda regulations that are disadvantageous to taxpayers need to be interpreted in a limited way, it is necessary to review whether the above judgment is correct.
 Finally, the Supreme Court's decision on December 29, 2022 on the method of calculating gift profits according to the comprehensive exchange of stocks followed the previous precedent (the Supreme Court's decision on March 29, 2018) that gift taxes should be levied by applying Article 42 (1) 3 of the former Inheritance Tax Act. In addition, the target judgment clarified the application of Article 31-9(2)5(b) of the Enforcement Decree of the former Inheritance Tax Act (before amended by Presidential Decree No. 20621 on February 22, 2008), which is the basis for calculating the gift property value of a company that becomes a full subsidiary due to stock exchange.

The Framing of a Right to Choose: Roe v. Wade and the Changing Debate on Abortion Law

The politics of comparative constitutional law Usually judges ask the questions, but on this night the roles were reversed. The occasion was a public conversation between United States Supreme Court Justices Breyer and Scalia, answering questions posed by constitutional scholar Norman Dorsen. The topic was the ‘Constitutional Relevance of Foreign Court Decisions’ to the Court's constitutional case law. For a court routinely called upon to address the most divisive issues in US public life, judicial citation practices hardly seem worthy of a rare evening with two of its most distinguished members. Yet the auditorium was packed, with hundreds more watching over a live video feed. Court observers knew that the event merited close attention. The backdrop was the Court's increasing use of comparative and international law – both described as ‘foreign’ to the US constitutional order – in its constitutional decisions over the previous decade. This practice – which I term the migration of constitutional ideas – has deeply divided an already divided Court, along the same ideological lines which have polarized its jurisprudence. Breyer and Scalia are the leading figures in this ongoing jurisprudential drama, although other Justices have joined the debate. Their initial skirmish, in Printz , arose in a challenge to federal attempts to ‘commandeer’ state officials to deliver federal programmes. Breyer suggested that the constitutionality of this practice in European federations was relevant to the Court's analysis, while Scalia, delivering the opinion of the Court, declared ‘comparative analysis inappropriate to the task of interpreting a constitution’.

A lame duck President might look at his authority to govern in the transition period as if it were large balloon with slow leak.... The balloon is ineluctably shrinking with each passing week.... By the end of the year, he will have the attention of the permanent government and can accomplish very little. --James Pfiffner (1996, 5) As his long goodbye in 2000-2001, Clinton was a whirling dervish of President who appointed judges, signed treaties, gave campaign-style speeches, issued scads of executive orders, rescinded ethics regulations he had penned in his first term, raised political money, gave dozens of interviews, granted 234 pardons and clemencies, fired an enemy from her government job, negotiated his own plea-bargain agreement, cast aspersions on his successor, installed crony as head of the Democratic Party, and gave an entire series of farewell addresses in which he essentially said he wasn't leaving at all. --Carl Cannon (2001, 274) A curious thing happens during the last one hundred days of presidential administration: political uncertainty shifts to political certitude. The president knows exactly who will succeed him--his policy positions, his legislative priorities, and the level of partisan support he will enjoy within the new Congress. And if the sitting president (or his party) the election, he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor's hands. Can he succeed? If James Pfiffner's quote above is any indication, prospects are dim. Defeated at the polls in November and guaranteed political retirement in January, an outgoing president has little ground upon which to advocate for his (someday her) policy agenda. During his final months in office, his public prestige and professional reputation--the ingredients of persuasion, and the purported foundations of presidential power--run empty. Members of Congress have little cause to do defeated president's bidding; and without them, presidents cannot hope to accomplish anything of consequence. As such, outgoing presidents have little choice but to recognize their plight, gather their belongings, and close the door on their administration. In our estimation, this misconstrues things. By ignoring important policy options outside of the legislative process, scholars have exaggerated the frailty of outgoing presidents and underestimated the influence they continue to wield. Presidential power does not reduce to bargaining, negotiating, and convincing members of Congress to do things that the president cannot accomplish on his own. Presidents can (and regularly do) act alone, setting public policy without having to rally Congress's attention, nor even its support (Cooper 2002; Howell 2003; Mayer 2001). With executive orders, proclamations, executive agreements, national security directives, and memoranda, presidents have ample resources to effectuate policy changes that stand little chance of overcoming the collective action problems and multiple veto points that plague the legislative process. And having lost the attention of the permanent government, outgoing presidents have every reason to strike out on their own, set new policy, and leave it to the incoming administration to try and steer an alternative course. Examples of last-minute presidential actions abound. It was President John Adams's Midnight appointments, which Jefferson refused to honor, that prompted the landmark Marbury v. Madison Supreme Court decision. Grover created twenty-one-million-acre forest reserve to prevent logging, an act that led to an unsuccessful impeachment attempt and the passage of legislation annulling the action. Then, in response to the congressional uprising, Cleveland issued pocket veto and left (Combs 2001, 331). Jimmy Carter negotiated for the release of Americans held hostage in Tehran, implementing an agreement on his last day in office with ten separate executive orders, many of which sharply restricted the rights of private parties to sue the Iranian government for expropriation of their property. …

Roe v Wade, Dobbs, and the Future of Graduate Medical Education.

Waging War, Deciding Guilt: Trying the Constitutionality of the Military Tribunals

At the dawn of the 21st century, education in the United States is undergoing intense, fundamental change, a revolution possibly as remarkable as the common school movement that gave rise to publicly supported schools. The past few decades has brought a host of neo-conservative education reforms. We have witnessed the emergence and rapid expansion of charter schools (Bulkley & Fisler, 2002; Center for Education Reform, 2005), the proliferation of private voucher plans in metropolitan areas including New York City, Dayton, Ohio, San Antonio, Texas, and Washington, D.C. (Godwin & Kemerer 2002; Howell & Peterson, 2002), and the implementation of publicly-funded voucher programs in selected urban districts and statewide in Arizona, Florida, Maine, Ohio, Utah, Vermont, Wisconsin, and the District of Columbia (National Conference of State Legislatures, 2007; Shaul, 2002). Moreover, these reforms have been gaining momentum from federal regulation and court rulings, most notably the charter school option in No Child Left Behind (NCLB), the Supreme Court's decision upholding the constitutionality of tuition vouchers in Zelman v. Simmons-Harris (2002), and, more recently, the Obama administration's choice to keep vouchers in the D.C. school system and provide stimulus package incentives (e.g., Race to the Top funds) for states to permit or expand charter schools. Teacher unions are under constant attack as well. New York City Schools Chancellor Joseph Klein, for instance, called for an end to the three pillars of non-meritocracy--teachers' seniority rights, tenure, and pay scales (Gootman, 2003), and D.C.'s former Education Chancellor Michelle Rhee adopted an evaluation system that dismisses teachers who fail to improve students' standardized test scores despite fervent resistance from the teacher union (Edsall, 2009; Turque, 2009). Merit pay schemes have also reemerged in districts throughout the nation with political support from both the Bush and Obama administrations, and performance-based accountability (with dramatic implications for teachers and school administrators) has become the modus operandi of education (Hannaway & Hamilton, 2008). While primarily the province of neo-conservative policymakers, these reforms have also attracted (and in a few cases, such as Milwaukee's Democratic Mayor John Norquist, been led by) some liberals who have become disenchanted, indeed impatient, with the inability of traditional education reforms to improve educational opportunities for children most at risk of academic failure. In this article, we argue that while the influence of these reforms on classroom instruction and student achievement are still contested, these reforms may help schools achieve other goals that are part of their mission and promote outcomes for the common good--certain general conditions that are in an appropriate sense equally to everyone's (Rawls, 1971, p. 246). The first section of the manuscript provides an overview of the private and benefits of educational attainment. Arguments in the second section suggest that the current state of schools precludes schools from accomplishing these goals, in particular supporting a stable, democratic society. In the last section, we consider current reforms in light of goals and suggest that these reforms, coupled with accountability measures, may change how we think about public education and rekindle optimism in the ability of schools to meet their goals to the advantage of both the individuals receiving an education and society. Education as a Quasi-Public Good Because education not only produces benefits for the individual, but also yields benefits to the public, education is often considered a good. The term good is misleading, and at least partially erroneous. In the strict economic sense of the term a good: (a) is non-excludable--others cannot be prevented from using the good or service, (b) is non-rivalrous--use of the good or service does not prevent others from using the good or service at the same time, and (c) has externalities--provides benefits that extend beyond the person consuming the good or service. …

Issuance of a State Administrative Decree by the Regional Secretariat of Central Java Province to people with disabilities on behalf of M. Baihaqi who was considered discriminatory during the 2019 Central Java National Civil Service Candidate selection who was declared not to have passed due to the requirements for the type of disability and educational qualifications being inappropriate. Administrative efforts have been taken to regain his rights but have been unsuccessful. Until finally resorting to litigation by filing a lawsuit with PTUN Semarang and an appeal to PT TUN Surabaya but it was declared not accepted. Then in the cassation the Supreme Court granted all the claims and asked the defendant to revoke the issued State Administrative Decree and process M. Baihaqi's in the Central Java National Civil Service Candidate selection 2019. The research method used is normative juridical with statutory, conceptual and case approaches. The research results show that the fulfillment of the constitutional rights of persons with disabilities in the 2019 Central Java Civil Servant Candidate Selection is considered not optimal because the solution provided by the defendant as an implementation of the Supreme Court's decision is not in accordance with the Supreme Court's decision.