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Presidential Power

Readings and resources concerning presidential power.

Assigned Reading (Class #7, January 30)

For our class on Monday, January 30th, we are going to talk about "week one" under President Trump.  And there is a lot to talk about!

Given the limited time we will have in class on Monday, we will focus our class time on a few of the orders, memos and directives issued over the course of the past week by the Trump administration, as well as various legal questions that flow from these presidential actions.  We will not discuss a number of significant presidential actions, including Trump’s Executive Orders on immigration, the border, and the ACA, because those actions will be discussed during other class sessions later on this quarter.  

Here are the materials you should read for this Monday’s class.  

On the issue of the Trump administration's efforts to control communications from various agencies and the role of social media, please read the following two news articles:

As one example of a memo issued by Trump, please read:

As one example of an Executive Order issued by Trump, please read:

To learn about the “regulatory freeze” instituted by Trump, please read:

After you read this memo, please read:

  • Pages 1883-97 and pages 1936-49 of Kathryn A. Watts, Regulatory Moratoria, 61 Duke L.J. 1883 (2012). The article describes other Presidents’ reliance on regulatory moratoria, and it discusses some of the legal issues that surround the propriety of regulatory moratoria.

In order to better understand how Trump's regulatory freeze impacts a variety of EPA rules, please look at:

Finally, we'd like to get you thinking about: (a) whether the President has the authority to direct specific agency action; and (b) how courts might treat an agency action that has the President's “fingerprints” all over it.  To help facilitate this discussion, please do the following:

  • Read Presidential Memorandum Regarding Construction of the Dakota Access Pipeline [DAPL] Jan. 24, 2017.
  • Next read Presidential Memorandum -- EPA Waiver, Jan. 26, 2009 (memo from Obama involving California’s request for a Clean Air Act waiver for the state’s greenhouse gas emissions standard).
  • Please compare the tone used in each of these memos, as well as the language used in the memos.  Does the tone of the Obama memo sound similar to or different from the Trump DAPL memo?  Does one use more mandatory language, or do they use similar language? 
  • By now you should be wondering whether the President has the authority to command an agency to take specific action.  On this question, please read pages 2319 to 2331 of Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) 
  • After you finish reading these pages from the Kagan article, please read the abstract Kevin Stack, The President's Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006). Note that you only need to read the one-page abstract of Professor Stack’s article; the rest of the article is not required reading.