Presidential Authority Research Articles

Prosecutor’s office in the system of public authorities in the CIS countries

The article reveals the place of the prosecutors office in the system of separation of powers of these states based on the analysis of the constitutions and legislation of the member states of the Commonwealth of Independent States. The purpose of the article is to determine the best ways to improve the legal status of the prosecutors office to increase the effectiveness of the Russian prosecutors office.
 The objectives of the study are to identify the general and particular in the legal status of the prosecution bodies of the CIS member states, to identify the main trends in the development of the institute of prosecution in these countries.
 The object of the research was social relations defining the place of the prosecutors office in the system of state power, and the subject was directly the norms of law governing the activities of the prosecution authorities and the practice of their application. The research methodology is general scientific methods of cognition (dialectical, analysis and synthesis, modeling, etc.). The article contains a comparative legal analysis of constitutions and laws on the prosecutors office of the CIS member states. The author comes to the conclusion that international associations of prosecutors have a significant influence on the process of forming the legal status of prosecution authorities in the world. It is concluded that in the CIS member states there was no uniform model of prosecution bodies and, accordingly, there was no uniform approach to determining the place of the institute of prosecution in the system of separation of powers.
 On the basis of the study, a tendency has been revealed to increase the influence of the President on the institute of the prosecutors office in a number of CIS countries. The author, after analyzing the laws of the CIS countries and Russian law enforcement practice, comes to the conclusion that it is expedient to adopt legislative and organizational measures aimed at embedding the Russian prosecution authorities in the system of presidential authority.

Presidential Review: The President’s Statutory Authority Over Independent Agencies

Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes clearly erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s supervisory authority over the independent agencies; it suggests that he has such authority insofar as he is attempting to ensure against “neglect of duty” but not if he is displacing their policymaking discretion.

One of a Kind (130 Years after the Birth of Dwight Eisenhower)

Having analyzed a number of works on the subject of American generals dreams over presidential authority the author reflects on several problems connected with formation and development of the American society, the role of civilmilitary relations in it and the life (fate) of Dwight David Eisenhower, general, commander, 34th U.S. president.

By Fiqh Recognized Authorization of the Head of State: A Comparative Study of Legally Acknowledged Power of the Public Authority by Ḥanafīs and Shafiīs in Najm ad-Din's Tuhfat al-Turk

Bu makalede Necmuddin et-Tarsûsî’nin (ö. 758/1357) XIV. yüzyılın ortalarında Şam’da kadılık vazifesi döneminde kaleme aldığı, Tuhfetü’t-Türk (Türk’e armağan) adlı eserindeki Hanefî mezhebinin devlet başkanına, Şafiî mezhebine nispetle daha fazla yetki tanıdığı yönündeki iddiası fıkhî açıdan incelenecektir. Tarsûsî eserinin merkezî iddiası sayılabilecek, Hanefî mezhebinin devlet otoritesinin mülkünü (devletini) daha sağlıklı bir şekilde idâme ettirebilmesi noktasında daha elverişli mezhep olduğu savını fıkhın muhtelif fer’i meselesini örnek vererek desteklemektedir. Bu yazıda Tarsûsî’nin söz konusu savını temellendirme adına serdettiği fıkhî meselelerden tayin edici üç tanesinden hareketle iddiasının sağlaması yapılacaktır. Bunlar had cezalarının tatbikinin devlet başkanının onayına bağlı olup olmadığı, ölümle neticelenen ta‘zîr uygulamasından dolayı devlet başkanının tazminat ödemesinin gerekip gerekmeyeceği ve devlet başkanının istimvâl yetkisine sahip olup olmadığıyla ilgilidir.

THREE CONGRESSES, ONE DECISION: KAZAKH LATIN ALPHABET

1926 ж. Бакуде өткен атақты І-ші Баку Түркітану Құрылтайына сілтеме жасай отырып, қазіргі Түркия елінің алфавитінің нұсқасы мен арада ондаған жылдар салып барып қолға алынған Ортақ түрік алфавитіне шолу жасауға талпыныс жасалған. Ыстамбұлда Мармара Университеті жанындағы Түркітану институты үйымдастырған «Қазіргі түркі алфавиттері халықаралық симпозиумы - 1991» мен «Қазіргі түркі алфавиттері халықаралық симпозиумы - 2018» туралы, осы жиынның тарихи шешімі туралы сөз болады. Мұндай келелі басқосу мен шешімнің түптамырында Түркия Республикасының сегізінші Президенті Тұрғыт Өзал мен Қазақстанның тұңғыш Президенті – Елбасы Н.Ә.Назарбаевтың 1990 жылғы кездесуі мұрындық болғандығы айтылады. Қорытынды ретінде Қазақстан Республикасының Президенті Қ.К.Тоқаевтың «Тіл мамандары жаңа әліпбиді жетілдіру керек» деген тапсырмасын орындау мақсатында А.Байтұрсынұлы атындағы Тіл білімі институты ұйымдастырған Республикалық дөңгелек үстел шешімі мен үндеуі туралы, көптен бері бейресми түрде қолданыста жүрген 32 қаріптік «жаңа қазақ» яки «Ортақ түрік алфавиті» туралы баяндалады.

Guiding Presidential Clemency Decision-making

The Article II Pardon Clause grants the president authority to grant clemency to any offender for any reason he deems justified. The clause contains only two limitations. The president cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the president’s authority is exclusive and plenary. It is, perhaps, the only surviving aspect of the royal prerogatives. What the clause does not do is give the president a standard, a guideline, or a decision tree for making clemency decisions. Presidents have used that power for legitimate, traditionally accepted reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who has atoned for his crimes and turned his life around. Nevertheless, neither the president nor the Department of Justice Pardon Attorney, who is responsible for managing the government’s clemency process, has devised a standard for the president to use when making clemency decisions. The Pardon Attorney has compiled a list of relevant factors, but has not identified which ones are necessary and sufficient, nor has that official assigned those factors an ordinal relationship or different weights. The result is that a president is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.” This Article discusses the need to make pardon and commutation decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and the president’s decision-making. An objective approach would help the president make decisions consistent with longstanding rationales for punishment. The hope is that, in so doing, the president will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the president’s financial or political allies, cronies, supporters, or people he knows. At one time, presidential clemency was a way to wipe the slate clean and give the average person a second chance. It no longer serves that role. Clemency is a subject where we should turn back the clock.

An “Untrammeled Right”? The McCarran Immigration Subcommittee and the Origins of Presidential Authority to Suspend and Restrict Alien Entry Under §1182(f)

Abstract:The language of Section 212(e) of the 1952 Immigration and Nationality Act, 8 U.S.C. §1182(f), contains a sweeping authorization of presidential discretion to suspend and restrict alien entry into the United States. Senator Pat McCarran (D-NV) first introduced the subsection in 1950 as part of the omnibus immigration bill drafted by his Judiciary Committee’s immigration subcommittee. The specific origins of the language and the original intent behind the subsection remain missing pieces in the extensive scholarly literature on the 1952 INA and legislative history as explored by the courts. This article reveals that the subcommittee modeled the subsection on the sixth proviso of the 1917 Immigration Act, the May 1918 Wartime Measure, and a selective interpretation of Supreme Court precedent. The article reveals further that the original intent behind the subsection was to close perceived loopholes in existing law enabling entry by displaced persons and Communist governmental officials.

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.

Screening Power: Harry Truman and the Nuclear Leviathan (ENG)

Harry Truman’s succession to the United States presidency upon Franklin Roosevelt’s death in 1945 thrust an obscure and inexperienced politician into the center of one of the 20th century’s most critical historical moment: the final months of World War II, as the United States was preparing to deploy nuclear weapons for the first time. Truman’s clear unequalness (in both image and substance) to the tasks at hand, in juxtaposition with the epic scale of the tasks themselves, provides a unique exposure of the illusory nature of presidential authority in the Nuclear Age. Using Thomas Hobbes’s Leviathan as a means of delineating the theory and image of political sovereignty, this essay examines three distinct moments from the early days of Truman’s administration that serve to elucidate the absence of presidential power and control that continues to this day to underlie the media apparatus that defines the American presidency.

A Proposal for 'Rebalancing' To Deal With 'National Security' Trade Restrictions

Over its first two years, the Trump administration has aggressively reshaped U.S. trade policy. One of its most controversial initiatives is the expansive use of “national security” to justify imposing tariffs and quotas. Section 232 of the Trade Act of 1962 gives the president authority to restrict imports on this basis after an investigation by the Commerce Department, and the administration has already done so for steel and aluminum and is now threatening similar actions on automobiles. The World Trade Organization (WTO) has a special exception for such measures, so there is at least an argument that they are permitted under international law. However, the administration has taken what was previously considered a narrow and exceptional remedy and broadened it to serve as a more general tool to protect domestic industries. This paper argues that WTO dispute settlement cannot easily resolve disputes of this kind, and suggests an alternative mechanism to handle these issues. Instead of litigation, a “rebalancing” process like the one used in the context of “safeguard” tariffs and quotas should be utilized for national security measures. Safeguards are a political safety valve that allow the trading system to pursue broad-based liberalization by providing the flexibility to protect domestic industries under certain conditions (ideally, by offering compensatory liberalization elsewhere). By adopting a similar political arrangement for national security trade restrictions, the overall balance in the system can be preserved, permanent damage to the WTO dispute system avoided, and a potentially destructive loophole kept closed.

Plausible legality: legal culture and political imperative in the global war on terror

‘I am, in like manner, inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of individuals and the executive power than there is between them and the people’ (Democracy in America, chapter XVI). Almost two centuries ago, Alexis de Tocqueville observed that lawyers were predisposed to act as handmaidens of the executive power; that is, as ‘serviceable instruments’ of the president's authority. After the attacks on the United States on 11 September 2001 and the ensuing global ‘war on terror’, de Tocqueville's observation rings truer than ever. Lawyers in America have played a critical role in justifying and enabling the evasion of domestic and international law, and have provided legal and constitutional justifications for everything from torture to warrantless surveillance to targeted drone killings of suspected terrorists. In Plausible legality, Rebecca Sanders uses these empirical observations as a jumping-off point for her analysis and asks: ‘Why would the most powerful state in the world bother to justify security policy in detailed legal terms?’ Relatedly, Sanders asks how American legal rationales for security policy have changed over time and what accounts for the changes (pp. 1–2). In other words, Plausible legality does not present new information about what happened—scholars, journalists and watchdog groups have all thoroughly documented the controversial role lawyers have played in the global ‘war on terror’. Rather, Sanders seeks to shed light on what explains this, whether or not it constitutes a break with past practice in the United States, and what the implications are for the fate of human rights in the US and globally.

Pending Section 232 Litigation and Broader Trade Trends: Will the US Courts Restrict Presidential Authority from Relying upon “National Security”?

This article discusses American Institute for International Steel v. the United States, which is pending in the little-known United States Court of International Trade in New York. It involves an attempt to declare that the US legislation delegating authority to the president to impose trade restrictions is an unconstitutional delegation of legislative authority. A loss would legally curtail the president’s discretionary power to use national security as a reason to impose punitive measures against trading partners. The article identifies legal trends, where this case fits into the trade policy debates, and why it is so important. The article concludes that domestic U.S. litigation in 2019 may well have a tremendous impact on U.S. law and the global trading system. Many in the domestic and international trading communities (as well as those in the foreign policy and national security communities) are waiting for the results of this little-known steel litigation.

PELAKSANAAN WEWENANG WAKIL PRESIDEN N DALAM PENYELENGGARAAN PEMERINTAHAN

No details the authority owned by the Vice President could potentially lead to legal uncertainty. Whereas in the construction of the position incumbent of the position of the Vice President has a position that is very fundamental research purposes in writing this is to know the authority of the Vice President in the Organization of the Government and To knowing the implementation authority Vice President in organizing the Government. In this study the normative legal research using methods based on relevant legislation and other legal materials related to the substance of the research, then connected with problems in This research. Research results show that the authority of the Vice President is not set explicitly in the legislation. Authority of the Vice President are only found by analyzing the legislation. ' Where there are 3 Vice Presidential Authority: the authority of the Vice President as the representative of the President, the powers of the Vice President As President, the Maid Authority of the Vice President as successor to the President whereas the implementation authority Vice President subject to the authority of the source. Source from authority of the attribution of the implementation authority Vice President gained the authority directly by the 1945 Constitution and its implementation without going through intermediaries. For the delegation of authority then the implementation authority in advance must there is a delegation of authority that has the force of law so that the execution of the authority of the Vice-president can be strengthened by positive law in order to set up and defend it.

Constrained Presidential Power in Africa? Legislative Independence and Executive Rule Making in Kenya, 1963–2013

AbstractDo institutions constrain presidential power in Africa? Conventional wisdom holds that personalist rule grants African presidents unchecked powers. Consequently, there is very little research on African institutions such as legislatures and their impact on executive authority. In this article, the author uses original data on the exercise of presidential authority (issuance of subsidiary legislation) to examine how legislative independence conditions presidential rule making in Kenya. The study exploits quasi-exogenous changes in legislative independence, and finds that Kenyan presidents issue relatively more Legal Notices under periods of legislative weakness, but are constrained from doing so under periods of legislative independence. These findings shed new light on institutional politics in Kenya, and illustrate how executive–legislative relations in the country conform to standard predictions in the literature on unilateral executive action.

Consistency of the Presidential System in Indonesia

The current presidential system in Indonesia is the result of the amendments of the 1945 Constitution. Prior to Indonesian reform, the presidential system was influenced by a strong parliamentary pattern in which the president was responsible for the People's Consultative Assembly. Today, this provision is no longer exist. However, consistency of the presidential system is still problematic because the the dominance power of the president over the House of Representatives. These problematic points are not in line with presidential system principle because it reduce the authority of president. The Parliament may only establish any law as long as it is pursuant to the 1945 Constitution. This article aims to examine the issue of the Indonesian presidential system at least in two following sections. Firstly, it deals with dominance of presidential power over the House of Representatives. Secondly, president establishes the independent bodies such as Corruption Eraditation Commission (KPK) and National Commission of Human Rights (Komnas HAM) which are constitutionally less restricted.

Presidential activism and government termination in dual-executive Ukraine

ABSTRACTThe limits on presidential authority in premier-presidential regimes permit legislatures to wield preeminent influence over government formation and termination. This article shows that even without formal powers to dismiss the prime minister, the president may play a decisive role in government replacement. The article compares three successful and one failed attempt by the president to unseat the prime minister in Ukraine under a premier-presidential system. Based on a review of the significance of 10 variables accounting for presidential activism, it finds that the president’s informal control over institutional veto players as well as the unity of his party faction and cooperation of opposition groups were necessary for the success of attempted cabinet turnover.

The Historical Presidency: The Foundations of the Modern Presidency: Presidential Representation, the Unitary Executive Theory, and the Reorganization Act of 1939

Two claims of presidential authority—presidential representation and the unitary executive theory—were contested during the legislative battle over the reorganization of the executive branch in the late 1930s. A unitary executive theory envisioned top‐down control of the executive branch, while a theory of presidential representation tied the president's purported national viewpoint to a larger role in policy making. I argue that, in passing the Reorganization Act of 1939, Congress rejected the unitary executive theory but cautiously endorsed the idea of presidential representation. As later shown in Immigration and Naturalization Service v. Chadha, however, Congress' accommodation of presidential representation did not provide a very firm foundation for presidential reorganization authority.

Protecting Offshore Areas from Oil and Gas Leasing: Presidential Authority under the Outer Continental Shelf Lands Act and the Antiquities Act

For over one hundred years, Presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial and sport fisheries. Yet it has received scant attention from Congress in terms of environmental protection. Climate change and ocean acidification have increased recognition of the marine ecosystem’s importance to the overall health of the planet. This Article reviews President Obama’s recent withdrawal of swaths of the outer continental shelf from oil and gas leasing under the Outer Continental Shelf Lands Act. It argues that while Congress has paramount authority over the outer continental shelf and retains the authority to undo conservation actions, it has delegated limited conservation authority to the President under section 12(a) of the act. Thus, President Obama’s recent protective measures taken under the act may only be altered by Congress—not by a subsequent President. This Article compares the President’s withdrawal authority under the Outer Continental Shelf Lands Act to the President’s authority to establish national monuments under the Antiquities Act. It argues that Congress did not delegate power to revoke national monument designations under the Antiquities Act, nor permanent withdrawals under Section 12(a) of the Outer Continental Shelf Lands Act.

The President's Completion Power

This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows that the completion power is a common explanation for very different presidential powers, including the administration of a presidential statute, prosecutorial discretion, and the use of force abroad without express congressional authorization. Maintaining that the widespread use of the completion power is a partial vindication of Chief Justice Vinson's neglected dissent in the Youngstown Steel Seizure case, this Essay argues that the completion power sheds light on a structural symmetry that cuts across Articles 1, 11, and III of the Constitution- namely, that each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it. The Essay also examines normative questions about the scope and limits of the power.

The Paris Paradigm

Global public discourse asserts that the Paris Agreement represents an irreversible turning point in the fight against climate change. The public outcry was correspondingly great when the Trump administration announced its intention to abandon the Paris Agreement. The Trump administration since has acted swiftly to repeal key regulations promulgated to implement U.S. Paris commitments, chief among them the Clean Power Plan. Problematically, the U.S. constitutional law literature on the Paris Agreement so far submits that neither the Paris Agreement nor commitments made pursuant to the Paris Agreement are an impediment to this policy reversal by the Trump administration. This directly contradicts the global expectation of what was achieved at Paris. The Article submits that the existing constitutional law literature incorrectly treats the Paris Agreement as a purely procedural executive agreement. The Article relies upon transnational law theory to show that the Paris Agreement and action taken pursuant to it instead constitute a global governance network. The Article then develops a “Paris Paradigm” governing presidential authority to commit the U.S. in such global governance networks. The Article uses the under-theorized category of implied Congressional delegation of foreign affairs authority in Youngstown to shows that the President has the authority to enter into, and unilaterally to make commitments within, such a global governance networks in reliance upon domestic rulemaking authority. The President must however act with constitutional good faith to make and such commitments. The Article concludes that the Paris Paradigm has important repercussions for attempts by later administrations to undo administrative rules that support global governance commitments (such as the Clean Power Plan). Statutory canons of construction presume that acts of Congress comply with U.S. international legal obligations. This presumption requires that administrative agencies may not rely upon statutory authority to repeal a rule when doing so would violate an international legal obligation of the United States. To repeal or replace regulations promulgated as part of a global governance network commitment, a later administration thus has to show that the original regulation fell outside the good faith regulatory authority of the agency promulgating it or that the new proposed rule continues to meet existing global governance commitments. Reconceived as a global governance network, the Paris Agreement therefore represents a paradigmatic impediment to current efforts by the Trump administration to repeal regulations such as the Clean Power Plan.