When the president seeks to influence administrative agencies, he can choose from a "toolkit" of different techniques for presidential control. The president might intervene into an agency's funding, for example, by conditioning the release of agency grants. Alternatively, the president might intervene into an agency's rule-making, for example, by directing the agency to rescind a prior rule. Or the president might intervene into an agency's enforcement, for example, by announcing a high-profile enforcement crackdown against certain types of offenses. By utilizing a broad toolkit of techniques, the president can influence agencies in a process known as "presidential administration," a term coined by then-Professor Elena Kagan in 2001. Presidential administration has become the dominant scholarly theory used to describe the president's influence over administrative agencies, and in the decades since Kagan's article, many scholars have expanded upon Kagan's theory by identifying new techniques in the toolkit for presidential control. Fewer scholars, however, have examined criminal enforcement as a tool for presidential administration. Administrative agencies typically pursue civil enforcement (which involves civil penalties such as fines or injunctions), but agencies may also pursue criminal enforcement (which involves criminal penalties such as imprisonment). The president has the power to direct both civil and criminal enforcement, and many recent presidents have turned to criminal enforcement. President Biden, for example, oversaw crackdowns against environmental and corporate crime. President Trump used criminal enforcement against immigrants to create the Family Separation Policy. President Obama encouraged criminal prosecution of workplace safety violations. And President Bush used civil and criminal enforcement in his attempt to outlaw physician-assisted suicide in Oregon. In these examples, criminal enforcement has functioned as a tool for presidential administration, allowing the president to influence areas like immigration law, environmental law, and workplace safety. This Article makes two contributions. First, it identifies criminal enforcement as a powerful tool which has received relatively little attention from scholars of presidential administration. Kagan, for example, rarely discussed criminal enforcement, and her article does not include the word "criminal" in the main text. Second, this Article offers an argument for constraining the president's use of criminal enforcement. In most instances, the president is too removed from the facts of specific cases to assess the mens rea, or criminal intent, for any given case. Given the president's limited knowledge about mens rea, he may face mens rea-based constraints when he attempts to intervene into criminal enforcement.
The United States Sentencing Commission is a unique institution within the structure of Government: it is a multi-member body housed within the judicial branch with the responsibility to promulgate Sentencing Guidelines that assist judges in making federal criminal sentencing decisions. Shortly after the Commission was created, the Supreme Court held in Stinson v. United States that the Commission's commentary accompanying the Guidelines are authoritative sources for interpreting the Guidelines. In so doing, the Court borrowed from a deference doctrine in administrative law that was reserved for agency interpretations of their regulations. However, in Kisor v. Wilkie, the Supreme Court cabined the deference doctrine that Stinson relied on. Hence, there is an open question regarding whether the Guidelines commentary can or should still be authoritative sources of interpretation for the Sentencing Guidelines. To make things more complicated, the Supreme Court held in United States v. Booker that the Guidelines could no longer bind federal judges in their sentencing decisions. In light of this and the Commission's distinctive policy mandates and operational features, this Note argues that the Supreme Court should reaffirm Stinson on renewed grounds. While it is true that the landscape of deference to administrative agencies has changed considerably in recent years, a rote transfer of these shifting decisional rules to the federal sentencing scheme is inappropriate. Careful consideration of the matter demonstrates that the federal sentencing scheme operates better when judges respect the Commission's discretion to interpret its own Guidelines and meaningfully exercise their right to depart from those Guidelines they deem unjustified.
The constitutional right to vote is in jeopardy. In theory, the Constitution implicitly protects the right to vote. In practice, this implied right rarely checks voter suppression or election subversion. And despite the platitude that the right to vote is fundamental, the Roberts Court's originalist turn threatens the right's foundations. Many scholars have assumed that reinvigorating the right to vote requires amending the Constitution. Only an amendment, they suggest, can increase judicial scrutiny of measures that make it harder to vote or less likely that every vote will count. After all, the Supreme Court has held that Congress cannot compel courts to provide greater protection for constitutional rights. If these scholars are right, then securing a real right to vote requires an immense investment of limited political capital with dubious prospects of a return. There is another way. This Article argues that Congress can create a statutory right to vote capable of performing the core functions of a right-to-vote amendment. Congress can sidestep the limits on its power to enforce constitutional rights by creating an independent right pursuant to its enumerated powers, as it has done with other civil rights laws. Fundamentally, the constitutional right to vote bars holding elections in an unjustifiably burdensome manner. The Elections Clause and Electors Clause grant Congress nearly plenary power over the manner of federal elections. And the Guarantee Clause provides the same power over state elections, plus the power to expand the electorate. With that power, Congress can guarantee all adult citizens the right to vote and subject burdensome measures to at least intermediate scrutiny. A statutory right to vote could do nearly as much as a constitutional amendment to check voter suppression and election subversion. Beyond empowering voters, a statutory right to vote would help set our democracy on a more inclusive foundation and provide a model for reclaiming from the judiciary the power to secure our most fundamental rights.
Recent Supreme Court decisions have reined in the runaway bureaucracy by reasserting the authority of the legislative branch, the first of three coequal branches of government created by our Constitution. One opinion after another has asserted a common refrain: all power possessed by federal agencies is derived from laws passed by Congress and they must operate within the confines of this authority. When agencies color outside the lines, Congress can check the executive branch through the Congressional Review Act ("CRA") by overturning rules issued by federal agencies. Congress recently made history in this arena with a novel use of the law to overturn overbearing Bureau of Land Management Resource Management Plans ("RMPs") for North Dakota, Montana, and Alaska. This approach marked the first time a CRA resolution was used to overturn an RMP, creating a roadmap for expanded use of the CRA authorities to check expansive bureaucracy operating outside the scope of Congress's intent. With the courts reaffirming the need for a legislative course correction, Congress is taking back control by making it clear these types of rules are out of bounds. The use of the CRA for an RMP is a case study on expanded opportunities to use CRA authority and the legislative and judicial willingness to rightsize Congress's coequal status.
"Shut down the Senate . . ." "Roll over and play dead . . ." In the first hundred days of President Donald Trump's second term, these were the rallying cries of two far ends of a debate among Democrats about how to respond to the administration's unprecedented actions. This debate, which rages on today, has been marked by a lack of specificity about the various oversight tools available to members of the minority party in Congress, particularly when they investigate whether the Executive Branch is faithfully executing the laws Congress passes. Scholarship too has focused little on the full panoply of powers minority parties can use to conduct investigations, especially during periods of unified party government. This Article aims to fill these gaps by mapping the minority's investigative powers in Congress. This review demonstrates that the current all-or-nothing debate misses significant opportunities for minorities to conduct oversight through a continuum of powers that can be deployed selectively and strategically rather than as a binary choice between complete obstruction and total passivity. These minority oversight powers include rights provided in House and Senate rules and federal laws, as well as parliamentary procedures the minority can employ to gain leverage for its investigative aims. They also include investigative actions the minority can take that do not rely on these rules, including obtaining information from alternative sources and disseminating that information through minority reports and events. To better inform the current debate, this survey provides a host of precedents and illustrations drawn from actions taken in the past by congressional minorities of both political parties. Based on this review, the Article concludes by offering several innovative proposals for minorities to consider, including moving beyond the current either-or debate in favor of a more strategic approach, organizing staff and resources to work more proactively across committees and both houses of Congress, increasing district and state-level engagement, and intentionally pursuing opportunities for bipartisanship. Unlike the two previous alternatives, which could allow congressional majorities to sacrifice their Article I prerogatives by either shutting down the Legislative Branch or abandoning its role as a check on the Executive Branch, these proposals its constitutional role in our separation of powers framework.
