The Yale Law Journal

Executive Power

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Introduction

Eric H. Holder, Jr.

Former Attorney General Eric Holder reflects on the Justice Department’s unique role in American society.

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The Civil Rights Division: The Crown Jewel of the Justice Department

Christy Lopez

This Essay contrasts the recent history of the Civil Rights Division with the first decades of its existence, arguing that civil rights advocates today should do more than reverse the harms of the Trump years. Rather, advocates must leverage the Division’s institutional dynamics to ensure its effect…

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Thwarting the Separation of Powers in Interbranch Information Disputes

Annie L. Owens

The Office of Legal Counsel (OLC) advises the President in information disputes with Congress. This Essay analyzes how OLC’s increasingly aggressive separation-of-powers advice, the Trump Administration’s utilization of OLC opinions to resist congressional information requests, and congressional acq…

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Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old

Joyce White Vance

How do the US Attorneys’ Offices restore their damaged credibility with the public? New laws and policies designed to preserve the independence of the Justice Department from politicization are much needed. But it will be even more important to rebuild public trust by reinforcing the culture of inde…

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Stare Decisis in the Office of the Solicitor General

Michael R. Dreeben

The Office of the Solicitor General (OSG) is generally believed to operate under its own form of stare decisis. But in many circumstances, OSG best serves governmental interests and those of the Supreme Court by submitting positions that it believes are right, even if they depart from prior submissi…

Note

The Law of Presidential Transitions

Joshua P. Zoffer

Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks…

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Manufactured Emergencies

Robert L. Tsai

As America goes through a democratic decline, a new problem rears its head: the manufactured crisis. To stem further degradation of democratic norms, this Essay calls for judges to reject unjustified assertions of unilateral power by carefully reviewing facts and refusing to tolerate lies.

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The Separation of National Security Powers: Lessons from the Second Congress

Stephen I. Vladeck

Can Congress reclaim a meaningful institutional role in supervising some of the broad national security powers it has delegated to the executive branch? This Essay argues that Congress can do so and explains how an obscure statute—the Calling Forth Act of 1792—provides a roadmap for how it should. 

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Ending Bogus Immigration Emergencies

Cecillia D. Wang

Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would un…

Article

Secret Reason-Giving

Ashley S. Deeks

The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and polic…

Note

Separation of Prosecutors

Leslie B. Arffa

The decentralized structure of the federal criminal-justice system has generated significant criticism. This Note offers a novel explanation and defense of this structure, arguing that decentralization is a feature of congressional design, not a bug of congressional abdication.  

 

Comment

Certification as Sabotage: Lessons from Guantánamo Bay

David Manners-Weber

Through an analysis of two recent case studies, this Comment demonstrates how certifications—requirements that government officials personally attest to some proposition—can be effective checks on the executive branch. Using observations from political science and sociology, it also describes the co…

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The Trump Administration and the Breakdown of Intra-Executive Legal Process

W. Neil Eggleston & Amanda Elbogen

In the first year of the Trump Administration, a breakdown of intra-executive internal norms and legal processes has led to a remarkable series of losses in the courts. This Essay argues that such a breakdown can substantially damage both the viability of an administration’s policy agenda and public…