The Soldier, the State, and the Separation of Powers

Deborah N. Pearlstein

90 Texas L. Rev. 797

PDF Document

The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is.  Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil–military affairs view the Constitution’s separation of powers—in particular, the allocation of authority over the military to more than one branch of government—as a fundamental impediment to the maintenance of civilian control as they take it to be defined.  As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control.  This Article is Professor Pearlstein’s effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.

Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation

Deborah A. Widiss

90 Texas L. Rev. 859

PDF Document

In this article, Professor Widiss examines congressional overrides and a problem she calls the “hydra problem.” First, she explores the challenge that overrides pose to the standard rule of precedent and defines the hydra problem.  She then discusses in detail the multistep conversation between the courts and Congress regarding the standard of causation in employment discrimination statutes and imagines an alternative version of the story to illustrate how the interpretative conventions courts use to interpret overrides improperly minimize the significance of Congressional interventions relative to judicial interpretations.  She also uses the rapid application of Gross v. FBL Financial Services, Inc. in other contexts and bills Congress has considered to override Gross to argue that the putative response that the Court indicates it expects from Congress is unreasonably difficult for Congress to achieve and could cause significant new problems. Finally, Professor Widiss argues that courts should instead adopt interpretive rules that more fairly respect the institutional realities of Congress because this would better permit overrides to play their expected role as a means for Congress to signal disagreement with judicial interpretations of statutes and promote the orderly and consistent development of statutory law.

The Madisonian Constitution: Rightly Understood

Benjamin Kleinerman

90 Texas L. Rev. 943

PDF Document

In his Review of The Executive Unbound: After the Madisonian Republic, Professor Benjamin Kleinerman agrees with Professors Eric Posner and Adrian Vermeule to the extent they point to a problem in our constitutional order: The executive is increasingly “unbound” insofar as Congress has continuously passed enabling legislation which promotes the executive’s complete freedom.  Kleinerman also agrees with their critique of legal liberalism’s hope to reestablish Congress’s supposed constitutional preeminence.  But Kleinerman disagrees with Posner and Vermeule when they implicitly cede to legal liberalism the claim that, constitutionally, Congress should be preeminent.  Kleinerman argues that liberal legalism’s characterization of the necessary preeminence of Congress over the President is a mischaracterization of our constitutional order.  Kleinerman concludes that the constitutional order depends upon three institutions actively engaged in political conflict over the scope of their powers, and Congress currently passes off its power to both the presidency and the courts.  Given that the constitutional order insulates those two institutions on the assumption that Congress will be too aggressive, perhaps we should rethink the constitutional order itself, Kleinerman argues.

The Goldilocks Executive

Saikrishna B. Prakash & Michael D. Ramsey

90 Texas L. Rev. 973

PDF Document

In this Review, Professors Saikrishna B. Prakash & Michael D. Ramsey critique The Executive Unbound: After the Madisonian Republic’s central claim that we live in a post-Madisonian republic.  They argue that Professors Eric Posner and Adrian Vermeule have shown that the modern executive is much less bound by law than in the past, but they have not shown that the Executive is unbound by law, or that the Executive should be.  Prakash and Ramsey also consider The Executive Unbound as a normative argument for adopting a legally unbound executive, and it finds the case not proven.  Finally, the reviewers tentatively conclude that separation of powers and related constraints play an important role in creating a “Goldilocks Executive”: an executive neither much too strong nor much too weak, but about right.

Placing the Foreign Corrupt Practices Act on the Tracks in the Race for Amnesty

Stephen A. Fraser

90 Texas L. Rev. 1009

PDF Document

In light of the lack of clarity and the high stakes of current enforcement of the Foreign Corrupt Practices Act, former enforcers and other FCPA practitioners are debating revisions to the Department of Justice’s enforcement policies.  In response to the debate, Stephen A. Fraser argues that an FCPA amnesty program would most successfully secure the economic and noneconomic interests of the DOJ and cooperating companies.  He first examines key features of the Antitrust Amnesty Program, which serves as a model for this FCPA amnesty proposal.  Fraser then describes the current policy of the DOJ toward companies that cooperate in FCPA investigations, identifying the unofficial, although frequent, practice of seeking a reduced sentence based on a company’s level of cooperation.  Finally, Fraser argues that a program with complete amnesty for companies and individuals that self-report FCPA violations best serves the monetary and nonmonetary interests of the DOJ and cooperating companies, whereas competing proposals do not.

Improving Tax Incentives for Historic Preservation

David J. Kohtz

90 Texas L. Rev. 1041

PDF Document

Historic preservation laws are increasingly controversial, and their perceived unfairness has led to calls for their repeal.  In his note, David Kohtz argues that policymakers should condition tax incentives on some form of public access to efficiently produce the public benefits that justify the incentives.  He first examines the justifications for historic preservation tax incentives, concluding that public access is essential to effective incentive programs.  Next, he critically reviews public access provisions in selected statutes, focusing on access to private residences.  The programs provided by these statutes, he explains, fall into three categories: (1) physical access, (2) visual access, and (3) virtual access.  Kohtz concludes that it is only by providing at least one of these types of access that historic preservation tax incentives are justified.

The Invisible Barrier: Issue Exhaustion as a Threat to Pluralism in Administrative Rulemaking

Gabriel H. Markoff

90 Texas L. Rev. 1065

PDF Document

In this Note, Mr. Gabriel Markoff argues that the doctrine of issue exhaustion may pose an unjustifiable barrier to diverse interest group participation in the administrative rulemaking process.  He first discusses the need for pluralistic participation in rulemakings and postulates that issue exhaustion exacerbates the well-known dominance of rulemaking participation by regulated parties.  After tracing the history of issue exhaustion, he presents an original survey of D.C. Circuit case law showing that issue exhaustion likely remains a highly effective barrier to judicial review by parties that do not submit comments in rulemaking comment periods.  Next, Mr. Markoff argues that issue exhaustion renders toothless the concerns of public interest groups, small businesses, and other poorly financed groups that do not have the financial means to submit detailed, technical comments in rulemakings.  This, he argues, is because agencies only listen to those parties who can use their ability to seek judicial review as leverage to negotiate favorable rule content and interpretations.  Mr. Markoff concludes by proposing that issue exhaustion be modified from a bright-line bar against review to a presumption in favor of allowing judicial review, one which could be rebutted by a showing of adequate participation or bad faith on the part of the party seeking review.