Constitutional Limits Research Articles

Interpreting Article II, Section 2: George Washington and the President's Powers

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

The President's Tax Returns

This Article examines whether congressional committees enjoy the unrestricted authority to demand a President’s tax returns. It concludes that they do not. Though a federal statute seemingly compels the IRS to furnish, on request, anyone’s tax returns to some congressional committees, a statute cannot transcend the constitutional limits on Congress’s investigative authority. Congress enjoys a near-automatic right to review a President’s tax returns only through a proper impeachment inquiry. After analyzing the general constitutional principles, the Article briefly examines the House Ways & Means Committee’s disputed request for President Trump’s tax return information. That controversy remains ongoing, and subsequent events may affect the legitimacy of any congressional request for that information. However, the Article expresses doubt that the Committee’s request satisfies the relevant constitutional standard.

The Constitutional Limits of EU Competition Law—United in Diversity

The allocation of legislative and executive competences in multilevel governance structures affects who controls norms. Over the last two decades we see a general trend in EU law, towards “flexibility, mixity and differentiation.” Yet many think that EU competition policy and enforcement marches to a different tune. Competence is rarely discussed there and, when it is, most assume that uniformity is desirable. This article discusses the EU constitutional system as it relates to competition policy and enforcement. It investigates what choices the EU Treaties make about diversity. As with many constitutional arrangements, the EU Treaties sometimes leave space for others to decide. In these spaces we advocate answers, based on our understanding of the constitutional settlement between the EU and the Member States. This has major implications for, amongst others: the Commission’s power to relieve the Member States’ national competition authorities (NCAs) of their competence to apply Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU); the vires of EU merger control outside of the remit of Articles 101 and 102 TFEU; Commission efforts to make the NCAs more independent of political influence; and the resolution of conflicts between EU and national competition rules.

The political implications of popular support for presidential term limits in Russia

ABSTRACTWith Vladimir Putin having commenced his second term, the issue of the constitutional limit of two successive terms for the president has again become politically salient in Russia. In this article, two specialists of Russian politics investigate public support in 2018 for term limits. They address three questions. Why does the issue of term limits matter? To whom in Russia does it matter? Is opposition to abolishing terms limits likely to be politically divisive? Their findings point in general to a shift in the level and character of support for term limits since 2012. Opposition to term limits has grown over time, and while in 2012 support for term limits was drawn from supporters of more authoritarian leadership, today it includes engaged democrats with negative views of the economic situation. They also find that supporters of term limits remain more likely to support political protest.

Beware the Trademark Echo Chamber: Why Federal Courts Should Not Defer to USPTO Decisions

This Article explains why federal courts should not defer to United States Patent and Trademark Office (USPTO) trademark decisions. Under United States trademark law, actual use of a mark on specific goods or services is required to support federal trademark registration. The USPTO processes a tremendous volume of applications to register trademarks. In order to do so expeditiously, trademark examiners use heuristics drawn from past USPTO registration data. While markets continually change, each trademark registration is updated at five or ten-year renewal intervals. Accordingly, much of the data does not reflect current market use. A recent audit established that many federal trademark registrations would be cancelled if their factual foundations were challenged. In stark contrast, courts examine market evidence in evaluating the core trademark issues of use, validity, and availability. Examining the factual context of each mark is especially important because, unlike other forms of intellectual property, trademarks have no fixed duration. They are functions of market use. Over time, trademark rights may shrink, be forfeited or expand and last indefinitely as use and public perceptions change. If courts apply de novo review to Trademark Trial and Appeal Board (TTAB) decisions, they will ensure that a forum remains for trademark decisions to be adjudicated based on facts, instead of shortcuts, and current, not past, understandings. While the USPTO does have significant trademark expertise, it does not have the authority to consider Constitutional limits on trademark protection. As seen in the administrative history of the “SLANTS” mark, the USPTO does not adjudicate whether trademark registration decisions violate constitutional rights. Too much deference to the USPTO could result in a trademark echo chamber where litigants never have the opportunity for a court to examine the entire factual record or consider how trademark decisions impact expressive speech. For all of these reasons, federal courts should review USPTO trademark decisions de novo to preserve the opportunity for adjudication based on genuine fact-finding and an openness to modes of inquiry in addition to trademark law.

The judicial role in protecting democracy from populism

AbstractPopulist political movements claim to be democratic in expressing what the people want, against the political establishment. These claims are misconceived to begin with in presupposing a definitive unitary people. Nonetheless, constitutional democracies face a special challenge to resist these claims in principle because they are unmistakably democratic sounding claims; they purport to empower popular will so that the people can rule themselves. Populist movements can be successful at the ballot box and push political culture in antidemocratic directions through democratic means, all the while claiming democratic legitimacy. The very processes of democracy are under threat. Traditionally, political winners are not motivated to change the system that saw them elected; populists are different in this regard. The populist challenge prompts a revisit of the debate about the democratic legitimacy of judges being empowered to displace the decisions of elected legislative assemblies (the constitutional review debate). An underdeveloped aspect of the constitutional review debate was the scope for courts to intervene specifically in political processes to correct them when they have gone awry and to help prevent them going awry in the first place. Judicial intervention is costly in democratic terms, and yet democracy has to be protected. This Article analyzes the search for a balance between popular will shaping democratic processes and judicially managed constitutional limitations on popular will shaping those processes. The recommended judicial role is styled as courts protecting—not perfecting—democracy, and it is a John Hart Ely-inspired modification of a separation of powers defense of constitutional review. In addressing the populist challenge, courts can, in principle, try to be a step ahead in anticipating and, where they can, slowing degradation of democracy and thereby helping to prevent it.

The Independent Counsel Statute: Reading Good Cause in Light of Article II

This paper uses the independent counsel statute to examine constitutional limits on legislative power to restrict the President’s ability to remove executive officers. As a federal prosecutor, the independent counsel exercises executive power. In the Ethics in Government Act, Congress provided that the President may remove an independent counsel only “for good cause, physical or mental disability, . . . or any other condition that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 594(c)(1994). Using a multifactor balancing test, the Court in Morrison v. Olson held that the restriction did not unconstitutionally interfere with the executive power vested in the President by Article II or the President’s Article II duty to “take Care that the laws be faithfully executed.” In sharp contrast, Justice Scalia’s dissent argued that any restriction on the removability of an executive officer contradicts Article II’s Vesting Clause, which assigns all of “[t]he executive Power” to the President. After examining the Decision of 1789—the debate in the First Congress over the removal power—the paper suggests that the permissibility of congressional restrictions on removal raises a serious, hard-to-resolve constitutional question. In its 1789 debate over the President’s power to remove the Secretary of Foreign Affairs, the House split into three roughly equal factions: The first contended that the President has illimitable removal power; the second contended that Congress has discretion to determine an officer’s removability; and the third maintained that the President needed the advice and consent of the Senate to remove officers appointed by and with such advice and consent. After examining the arguments in that thoughtful and extensive debate (which occurred in the shadow of ratification), the paper concludes that the removal question constitutes a classic “difficult constitutional question”—the very sort that the modern canon of avoidance seeks to resolve through statutory construction rather than judicial review. The paper then argues that by reading open-ended “good cause” provisions to allow the President to remove executive officers for insubordination, the Court can avoid difficult constitutional questions about the scope of the President’s power.

On adaptive thermo-electro-elasticity within a Green–Naghdi type II or III theory

We develop a thermo-electro-mechanical continuum theory for a bone remodeling model in order to understand and predict the features of the remodeling process under the control of the strain for a normal living bone. Bone remodeling refers to the continual processes of growth, reinforcement and resorption which arise in living bone. Unlike other approaches to the subject, we follow the Green–Naghdi approach to thermodynamics that employs the concept of thermal displacement and an entropy equality instead of an entropy inequality. We study the bone remodeling process in the context of thermo-electro-elasticity and introduce new balance laws of momentum, energy and entropy. Then, we derive the local balance laws, the constitutive assumptions, the constitutive restrictions and finally focus on the case of transversely isotropic bodies. Last but not least, we prove that the mathematical model is well posed in the nonlinear case.

On the existence of elastic minimizers for initially stressed materials.

A soft solid is said to be initially stressed if it is subjected to a state of internal stress in its unloaded reference configuration. In physical terms, its stored elastic energy may not vanish in the absence of an elastic deformation, being also dependent on the spatial distribution of the underlying material inhomogeneities. Developing a sound mathematical framework to model initially stressed solids in nonlinear elasticity is key for many applications in engineering and biology. This work investigates the links between the existence of elastic minimizers and the constitutive restrictions for initially stressed materials subjected to finite deformations. In particular, we consider a subclass of constitutive responses in which the strain energy density is taken as a scalar-valued function of both the deformation gradient and the initial stress tensor. The main advantage of this approach is that the initial stress tensor belongs to the group of divergence-free symmetric tensors satisfying the boundary conditions in any given reference configuration. However, it is still unclear which physical restrictions must be imposed for the well-posedness of this elastic problem. Assuming that the constitutive response depends on the choice of the reference configuration only through the initial stress tensor, under given conditions we prove the local existence of a relaxed state given by an implicit tensor function of the initial stress distribution. This tensor function is generally not unique, and can be transformed according to the symmetry group of the material at fixed initial stresses. These results allow one to extend Ball's existence theorem of elastic minimizers for the proposed constitutive choice of initially stressed materials. This article is part of the theme issue 'Rivlin's legacy in continuum mechanics and applied mathematics'.

The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints

This Article considers the process by which electoral reform ought to take place, focusing in particular on the democratic and constitutional constraints that bear on electoral reform. It outlines a number of possible process options — including a citizens’ assembly, a commission, a referendum, and a parliamentary committee — and it argues that although no single mechanism is mandated, the process must visibly follow the norms of political neutrality, consultation, and deliberation in order for the proposed reform to be democratically legitimate.This Article also addresses the question of whether a constitutional amendment involving provincial consent is required for electoral reform. The Supreme Court has recognized in many of its cases that the electoral system is political in nature but nonetheless subject to certain constitutional limits. The Court has also stated in its prior cases that the choice of the electoral model falls within the domain of Parliament. The remaining question, however, is whether the Senate Reference has changed the legal landscape such that Parliament would now be required to obtain provincial consent in order to usher in electoral change. This Article argues that given the salient differences between Senate reform and electoral reform, the Court could distinguish the Senate Reference and find that its earlier precedents on the electoral system remain valid. The Article concludes that electoral reform can likely proceed without a constitutional amendment involving provincial consent, provided that the reform is consistent with certain constitutional requirements.

Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy

“Sanctuary cities” - jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants - have become a major focus of political conflict over immigration policy. The Trump administration’s efforts to punish sanctuary jurisdictions have led to multiple legal battles over constitutional federalism. The administration’s crackdown on sanctuary jurisdictions has helped make federalism great again. It achieved this unintended outcome by generating a series of court decisions protecting state and local governments against federal coercion, and by leading many on the political left to take a more favorable view of judicial enforcement of constitutional limits on federal power. This is the first academic article to attempt a comprehensive evaluation of the federalism issues at stake in the Trump-era litigation on sanctuary cities. The article assesses the three main sets of sanctuary cases that have arisen during the Trump administration: legal challenges to Trump’s January 2017 executive order targeting sanctuary cities, challenges to the Justice Department’s July 2017 policy of conditioning federal law enforcement grants on state and local government cooperation with efforts to deport undocumented immigrants, and the administration’s lawsuit against California’s “sanctuary state” law. So far, at least, all three have led to notable victories for advocates of constitutional limits on federal power. The sanctuary litigation has also produced a noteworthy reversal of the usual ideological valence of judicial enforcement of federalism, with progressive “blue” jurisdictions relying on legal doctrines traditionally associated with the political right. Whether this helps trigger a more lasting shift in attitudes towards federalism remains to be seen.

생계형 적합업종 제도의 법적 타당성에 관한 고찰

Under the “Special Act on Designation of Livelihood Type Businesses Suitable for Micro Enterprises”, which took effect on December 13, 2018, made new provisions for designation of ‘Livelihood Type Businesses Suitable for Micro Enterprises’ for the guarantee of one`s right to live of micro enterprises. This has taken a step further from the ‘Business Types Suitable for Small-Medium Enterprises’ under the current “Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises”.BR This paper looked at relevant issues with regard to the legal validity, particularly the unconstitutional nature of the system of livelihood type businesses suitable for micro enterprises. First, the history of the business types suitable for small-medium enterprises that are closely related to this system was summarized. And the key details specified by the Livelihood Type Businesses Suitable for Micro Enterprises Act and the Enforcement Decree of the same Act were clearly indicated. Then the matters like constitutional restrictions on the fundamental rights was discussed. BR There are conflicting opinions about the system in terms of economic effectiveness and legal validity, but it is unlikely that the system will violate the Constitution according to the Constitutional Court’s related decisions. However, if problems that were unexpected or overlooked at the time of drafting the system occur in the course of implementation of the law, efforts to reflect them immediately will also need to be made.

Control de convencionalidad en México: transformaciones y desafíos

In this project there are analyzed the legal and interpretative tensions generated by the reception of Inter-American binding legal precedents and conventionality control among the criterion of the Supreme Court of Justice of the Nation (SCJN, for its initials in Spanish) as well as the challenges implied for the legislators in the future years. Despite the fact that the biding legal precedents of the SCJN has privileged the constitutional restrictions to the conventional rules, the fact is that where a restriction is not stated, the legislator must solve affairs over which they preside by applying conventionality control in the light of the pro-person principle; on the other hand, regarding the constitutional restriction stated, the Second Division of la SCJN, in accordance with the constitutional perspective of the First Division, has established that the legislator must interpret them in the most favorable manner for the persons.

Challenging the Constitutionality of Restrictions on Same-Sex Sexual Relations: Lessons from India

Challenging the Constitutionality of Restrictions on Same-Sex Sexual Relations: Lessons from India

A Constitutional Wealth Tax

Policymakers and scholars are giving serious consideration to a federal wealth tax. Wealth taxation could address the harms from rising economic inequality, promote equality of social and economic opportunity, and raise the revenue needed to fund critical government programs. These reasons for taxing wealth may not matter, however, if a federal wealth tax is unconstitutional. Scholars debate whether a tax on a wealth base (a “traditional wealth tax”) would be a “direct tax” subject to apportionment among the states by population. This Article argues, in contrast, that this possible constitutional restriction on a traditional wealth tax may not matter. If the Court struck down a traditional wealth tax, Congress could instead tax wealth by adjusting a taxpayer’s income tax liability on account of her wealth. This Article describes three general methods for making this adjustment (collectively, “Wealth Integration” methods). A taxpayer’s wealth could affect her taxable income base (the “Base Method”), the applicable rate schedule (the “Rate Method”), or the availability of credits against tax (the “Credit Method”). Wealth Integration methods could replicate the economic effects of a traditional wealth tax but with an intrinsically different constitutional analysis. The Court could strike down Wealth Integration methods only by overruling settled prior precedent, invalidating many current features of the income tax, and fundamentally restricting Congress’s power to tax income under the Sixteenth Amendment. Finally, the possibility that Congress could instead tax wealth through Wealth Integration methods provides a new argument why the Court should uphold a traditional wealth tax. Otherwise, the Court would have to choose between fundamentally restricting the Sixteenth Amendment — and jeopardizing the income tax as we know it — or distinguishing between economically similar taxes on the basis of their formal label while still allowing Congress to tax wealth and diminishing the effect of the apportionment requirement as a restraint on Congress’s taxing power.

Multi-Component Multiphase Flow Through a Poroelastic Medium

An axiomatic development for a continuum description of a multi-component multiphase porous flow in an elastic medium is developed. The Coleman–Noll procedure is used to derive constitutive restrictions which guarantee that the resulting model satisfies an appropriate statement of the second law of thermodynamics and a corresponding dissipation inequality. Many of the models and formulations appearing in the engineering literature are shown to be special cases of the model developed here.

The Judicial Role in Protecting Democracy from Populism

Populist political movements claim to be democratic in expressing what the people want, against the political establishment. These claims are misconceived to begin with in presupposing a definitive unitary people. Nonetheless, constitutional democracies face a special challenge to resist these claims in principle because they are unmistakably democratic sounding claims; they purport to empower popular will so that the people can rule themselves. Populist movements can be successful at the ballot box and push political culture in antidemocratic directions through democratic means, all the while claiming democratic legitimacy. The very processes of democracy are under threat. Traditionally, political winners are not motivated to change the system that saw them elected; populists are different in this regard. The populist challenge prompts a revisit of the debate about the democratic legitimacy of judges being empowered to displace the decisions of elected legislative assemblies (the constitutional review debate). An underdeveloped aspect of the constitutional review debate was the scope for courts to intervene specifically in political processes to correct them when they have gone awry and to help prevent them going awry in the first place. Judicial intervention is costly in democratic terms, and yet democracy has to be protected. This Article analyzes the search for a balance between popular will shaping democratic processes and judicially managed constitutional limitations on popular will shaping those processes. The recommended judicial role is styled as courts protecting — not perfecting — democracy, and it is a John Hart Ely-inspired modification of a separation of powers defense of constitutional review. In addressing the populist challenge, courts can, in principle, try to be a step ahead in anticipating and, where they can, slowing degradation of democracy and thereby helping to prevent it.

From Struggle for Law to Struggle for Sovereignty

Introduction. The article deals with the problems of sovereignty of modern states in the context of political confrontation at the beginning of the 21st century. The author performs a legal analysis of the issue of a state’s constitutional identity limitation by supranational interstate associations and the issue of inter-ference of some states in the affairs of others as a modern trend of interstate communication.Materials and methods. The theoretical basis of the research is the views of the German jurisprudent R. Jhering on the correlation of objective law and subjective law, as well as on the conditions that are necessary for the existence of the rule of law. The empirical basis of the research is represented by the current legal regulation of the Russian Federation and the United States of America, as well as by legislative initiatives being under consideration in the Congress of the United States of America. The methodological basis of the research is the formal logical method, the method of system analysis, structural and functional method.Results. On the basis of the analysis of modern trends in the interstate in-teraction and after consideration of individual domestic political decisions taken in the Russian Federation and the United States of America the author con-cludes, that the international cooperation is impossible without adopting sover-eignty ensuring government measures which measure up both to the violation of the state’s constitutional identity by interstate associations and to the interference of states into the internal affairs of others.Discussion and conclusion. Interference of interstate associations in a state’s constitutional identity and states’ consistent interference in the internal af-fairs of other states are an absolutely unacceptable practice from the standpoint of international law. Such a practice prevents the construction of international cooperation on the basis of consensus and mutual respect and brings to naught the effectiveness of interstate cooperation.

The Greek experience of privatisation through the Hellenic Republic Asset Development Fund

The goal of this article is to shed light on the ambiguous role of the Hellenic Republic Asset Development Fund (HRADF) and show that the privatisation program devised is inextricably linked to the bailout agreements signed between Greece and its lenders. The HRADF was established in order to carry out a vast program of privatisation in order to generate revenue and create the conditions for economic development. However, because of the pressure exercised both by the lenders and financial necessities, it has lacked to a certain extent democratic accountability and transparency. For the same reason, although constitutional limits on privatisation have indeed been recognised in theory, courts have been reluctant to block any specific privatisation. It is important to note that the creation of the new super-Fund seems to exacerbate these deficiencies by placing almost all important assets of the State under the supervision of the lenders.

Gondnoksági perekben tapasztalt visszásságok, a jogalkalmazás egységességének hiánya

Hungary ratified the UN Convention on the Rights of Persons with Disabilities (hereinafter: CRPD) in 2007. The Hungarian Civil Code was accordingly amended in 2014. Although the new Civil Code introduced supported decision making, it did not fully abolish guardianship. The aim of this study is to evaluate the implementation of the new rules through recent jurisprudence of Hungarian courts. Due to the fact that guardianship judgements have a major impact on the basic human rights of nearly 60,000 persons with disabilities who are placed under some form of guardianship, the authors chose to analyse civil law cases in the constitutional framework. A detailed analysis is provided on the application of legal principles set forth in the new Civil Code, such as necessity, proportionality, graduality in the chosen guardianship cases. This study aims at pointing out how far the implementation of international standards has gone in relation to the constitutional restriction of fundamental rights, examining the dangersprevalent in cases influenced by expert opinions and contributing to the effective support of persons with disabilities to respect, protect and fulfil their fundamental rights on an equal basis with others.