Chilling Rights, by Toni Massaro

A persistent trope in free speech doctrine is that overbroad
laws chill protected expression and compromise the
breathing room needed for a vibrant marketplace of ideas.
The conventional restrictions on facial challenges of
measures that sweep beyond legitimate regulatory zones are
relaxed. Whether and to what extent this liberal approach to
judicial review actually governs in free speech law and not
elsewhere, and whether this is constitutionally or
normatively defensible, have been the subject of considerable
and exceptionally insightful scholarship. Yet the United
States Supreme Court has given the best of this work slight
notice.

Continue reading here.

Beyond Willful Ignorance, by Alexander Sarch

This Article investigates the limits of the willful ignorance
doctrine as employed in federal criminal law. This
foundational rule allows willfully ignorant defendants to be
treated as knowing wrongdoers. The willful ignorance
doctrine is of increasing importance at the moment in light
of the mens rea reform bills currently working their way
through Congress. This legislation seeks to establish some
form of knowledge as the default mens rea in federal law.
Thus, if some version of this law is passed, the willful
ignorance doctrine will provide a partial work-around.

Continue reading here.

The President’s Faithful Execution Duty, by Harold H. Bruff

Soon after our Constitution took effect, James Madison called the President’s duty to faithfully execute the laws the “essence” of the office. A century later, even the rather undistinguished President Benjamin Harrison could see that it was the “central idea” of the office. But what does the duty mean? At a rudimentary level of separation of powers theory, every American middle schooler should know that Congress makes the laws, the courts interpret them, and the President executes them. This simple construct ignores the richness and complexity of the duty as the forty-four Presidents of the United States have interpreted it. This Article seeks to flesh out the concept.

Continue reading here.

 

Executive Power Under the Constitution: a Presidential and Parliamentary System Compared, by Gabrielle Appleby & Adam Webster

In a 2014 article published in the Adelaide Law Review, Professor Harold Bruff explained the U.S. executive power to an Australian audience. Bruff described the constitutions of Australia and the United States as “cousins”; they share some traits—such as federalism—but in other areas there is less of a resemblance. The Australian system of government blends features of the federal system of the United States with the parliamentary system of the United Kingdom. In 1980, Elaine Thompson famously described it as a “Washminster” system of government. The framers of the Australian Constitution were familiar with the U.S. Constitution, both through their readings—particularly Lord Bryce’s well-timed treatise, The American Commonwealth, published the decade preceding the major Australian constitutional drafting conventions—and through their personal experiences. The development of the U.S. Constitution and the constitutional practices of the United Kingdom were frequently referenced and compared during the drafting of the Australian Constitution.

Bruff considered how the American experience might assist in Australia’s understanding of its executive power, particularly at a time when the Australian government appears to be increasingly relying upon “inherent,” extrastatutory sources as the basis for its actions. Since Bruff’s article there have been a number of further instances when the High Court of Australia has had to consider the scope of executive power. Against the background of such developments, this Article provides a brief explanation of the Australian executive power and, drawing on Bruff’s American analysis, offers a comparison of the two systems of executive government. In this Article, we argue that the High Court has played an important role in regulating the limits of executive power in circumstances where the legislature has been reluctant to supervise the executive.

Continue reading here.

Presidential Constitutional Interpretation, Signing Statements, Executive Power, and Zivotofsky, by Henry L. Chambers, Jr.

As noted in Dean Harold H. Bruff’s superb book, Untrodden Ground: How Presidents Interpret the Constitution, the President of the United States routinely interprets the United States Constitution. How aggressively the President should interpret the Constitution is subject to significant dispute. This Article considers that issue in the context where the President is the most aggressive, i.e., when threatening to decline to enforce a federal statute because the President believes the statute is unconstitutional. Such action has become increasingly common in the past few decades as Presidents have increasingly promulgated constitutional signing statements, official statements explaining how the President will enforce or decline to enforce enacted legislation based on the President’s opinion regarding the legislation’s constitutionality. The latitude the President has or should have to interpret the Constitution is particularly important in areas such as foreign policy and national defense, where the President claims plenary constitutional authority. Whether constitutional signing statements fit comfortably within our constitutional structure or are in derogation of that structure may depend on how aggressively the President interprets the Constitution.

 

Continue reading from Professor Chambers here.