The Yale Law Journal

Congress

Note

Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law

McKaye Neumeister

The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’…

Note

Spending Money To Make Money: CBO Scoring of Secondary Effects

Scott Levy

This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and p…

Review

How Long Is History’s Shadow?

Anita S. Krishnakumar

Josh Chafetz, in Congress’s Constitution, urges Congress to rehabilitate its underused but important nonlegislative powers. In this Book Review, Anita Krishnakumar argues that while reinvigorating these powers is a good idea in theory, Congress may not have the ability or inclination to do so. 

Forum

Dissent in the Senate

Michael J. Gerhardt

While dissent is often associated with the judiciary, Senators also dissent to vent frustration, vindicate legal principles, mobilize constituencies, and destabilize the status quo. Through three case studies, this Essay traces the role and purpose of dissent in the Senate, which enriches our broade…

Note

The Majoritarian Filibuster

Benjamin Eidelson


122 Yale L.J. 980 (2013).

The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying atte…

Essay

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

Matthew C. Stephenson


122 Yale L.J. 940 (2013).

It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Forum

Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?

Sanford Levinson

I. Introduction: The Need for “Political” Analysis My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticat…

Forum

If It Ain't Broke . . .

J. Harvie Wilkinson III

“The most important thing we do,” Justice Brandeis once remarked, Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government. Indeed, the cautious exercise of the cer…

Article

The President and Immigration Law

Adam B. Cox & Cristina M. Rodríguez

119 Yale L.J. 458 (2009). 

The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has…

Article

Presidential Power over International Law: Restoring the Balance

Oona A. Hathaway

119 Yale L.J. 140 (2009). 

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…

Forum

The Prospects for the Peaceful Co-Existence of Constitutional and International Law

Julian G. Ku

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logi…

Article

Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

Robert C. Post & Reva B. Siegel

112 Yale L.J. 1943 (2003)

The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…