scholarly journals Returning Separation of Powers Analysis to its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Penalties

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Executive Power ◽  
Environmental Services ◽  
Categorical Approach ◽  
The Earth ◽  
Executive Authority ◽  
The Status ◽  
Citizen Suits ◽  
As If

This paper examines the status of debates concerning the constitutionality of private suits to enforce civil fines in light of the Supreme Court's decisions in Vermont Agency of Natural Resources v. United States ex rel. Stevens and Friends of the Earth v. Laidlaw Environmental Services, as well as a pending Fifth Circuit decision in United States ex rel. Riley v. St. Luke's Episcopal Hospital. The two Supreme Court opinions have upheld qui tam and citizen suits against standing challenges, but have reserved the question of their constitutionality under Article II. The Riley panel opinion held qui tam actions to be unconstitutional under Article II, but the Fifth Circuit took the matter en banc on its own motion on the very day the opinion was published. (Subsequent to the publication of this article, the Fifth Circuit overturned the panel opinion and upheld the constitutionality of qui tam actions, Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001).) In the author's judgment, all such private suits to enforce civil fines are plainly constitutional under both Article II and Article III. That such suits appear to raise constitutional doubts is the consequence of missteps in the Supreme Court's implementation of separation of powers principles. The Court, led chiefly in this respect by Justice Scalia, has written often as if constitutionally vested executive authority guarantees the President plenary policy control over all federal civil administration, and as if the purpose of standing doctrine were largely to protect such executive authority from judicial interference. The author believes that the vesting of executive power is better understood as an effort to remove Congress from the business of administration. Standing rules, for their part, ought chiefly to be understood as protecting the judiciary from the dilution of judicial power that would come from the resolution of abstract or collusive litigation. The author explains why the Court should go back to requiring no more as a matter of standing doctrine than that a case be presented in an adversary context and in a manner historically viewed as capable of judicial resolution. The Court's injury, causality, and redressability inquiries should be abandoned in favor of a more straightforward questioning whether plaintiffs in federal lawsuits have constitutional or statutory causes of action to support their complaints. In Article II cases, the Court should adhere to the analytic framework of Morrison v. Olson, and abandon the more wooden and categorical approach to interpreting executive power that informs Justice Scalia's Morrison dissent and his alternative holding in Printz v. United States.

Institutions, Power, and Institutional Balance

2021 ◽  
pp. 46-89
Author(s):  
Paul Craig
Keyword(s):  
Separation Of Powers ◽  
Initial Period ◽  
Lisbon Treaty ◽  
Executive Power ◽  
Constitutional Treaty ◽  
Institutional Power ◽  
Executive Authority ◽  
Single European Act ◽  
Rule Making ◽  
Secondary Rule

Institutional balance, as opposed to strict separation of powers, characterized the disposition of legislative and executive power in the EEC from the outset. The chapter is divided into four temporal periods. The initial period runs between the Rome Treaty and the Single European Act 1986 (SEA). The discussion begins with the initial disposition of institutional power in the Rome Treaty, and charts the way in which this shifted during the first thirty years. The second section covers the period between the SEA and the Nice Treaty, in which there was growing consensus in normative terms as to the appropriate disposition of primary legislative power, but continuing contestation as to power over secondary rule-making and the locus of executive authority. These tensions were readily apparent in the third period, which covers the Constitutional Treaty and the Lisbon Treaty. The fourth period runs from the advent of the Lisbon Treaty to the present. The EU has been beset by a series of crises, which had implications for the powers of the respective EU institutions and the institutional balance between them.

scholarly journals THE MODEL STATUS OF THE HEAD OF THE SUBJECT OF THE RUSSIAN FEDERATION

2020 ◽  
Vol 1 (383) ◽  
pp. 178-181
Author(s):  
V. V. Naumkina
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
System Structure ◽  
Executive Power ◽  
Federal State ◽  
Organizational Models ◽  
Public Authorities ◽  
The Status ◽  
The Subject ◽  
The Russian Federation

The relevance of the topic is determined that the highest official of the subject of the Russian Federation are central in the system of regional public authorities and has a significant impact on the performance of Federal state functions. The Federal structure of the Russian Federation provides for different levels of governance. The effectiveness of solving state problems depends on the quality of management in the regions. The legislation defines only the basic principles of the requirement of the organization of power in the subject of the Russian Federation. Subject of the Russian Federation can regulate the organization of management. Federal legislation provides the subjects of the Russian Federation with relative freedom in determining the system, structure, order of formation and functioning of the Executive power. The subjects of the Russian Federation are different models of governance, which determine the status of the head of the subject of the Russian Federation. The article identifies two models for realizing the principle of separation of powers in the subjects of the Russian Federation. The place of the head of the subject of the Russian Federation in the power system is considered from the position of the scope of powers. The article describes the status of the head of the subject of the Russian Federation when using different models, highlights the features of organizational models. The practical application of the management model depends on the characteristics of the territory (area, population, socio-economic situation). In contrast to the Federal model, the head of a subject of the Russian Federation in fact included in the system of Executive power regardless of the model. The article deals with discussion issues. The article highlights the main disadvantages and offers suggestions on the advantages of models.

2 Treaties

2015 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
International Agreements ◽  
The Status ◽  
Relationship Of ◽  
The Relationship ◽  
The U.S

This chapter considers the status of treaties within the U.S. legal system. The focus is on international agreements concluded through the senatorial advice and consent process specified in Article II of the Constitution. The chapter describes that process, including the Senate’s ability to condition its consent through reservations and other qualifications. It also discusses the role of treaties as supreme law of the land, including the situations in which treaties will be considered “self-executing” and “non–self-executing,” as well as the later-in-time relationship of treaties to federal statutes. The chapter also discusses the relationship of treaties to constitutional limitations concerning the separation of powers and federalism, including the implications of the Supreme Court’s 1920 decision in Missouri v. Holland. The chapter concludes with a consideration of how the United States terminates treaties.

The Realists and Their Critics

Worldview ◽  
1973 ◽  
Vol 16 (6) ◽  
pp. 19-23
Author(s):  
Ronald Stone
Keyword(s):  
United States ◽  
The United States ◽  
Status Quo ◽  
Major Power ◽  
South Vietnam ◽  
The World ◽  
The Status ◽  
Domestic Reform ◽  
As If

It seems as if we are entering an era similar to the period after die Congress of Vienna. The cold winds of reaction have prevailed. The fires of domestic reform have gone out, extinguished by the excesses of some reformers and by the tactics of the forces of the status quo. The nation that gave birth to the A-bomb has succeeded in shocking the numbed consciences of the world by carrying out on a peasant nation die most destructive aerial bombardment ever unleashed. As Russia, England, Austria and Prussia conspired in Vienna to put out the danger of revolution, so now Russia, China and the United States are cooperating to save South Vietnam, the United States's ally, to halt the rain of bombs on die troublesome, sometime ally of the Chinese and the Soviets, to put out die fire mat threatened for so long to lead to a major power conflagration.

2 Treaties

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
International Agreements ◽  
The Status ◽  
Relationship Of ◽  
The Relationship ◽  
The U.S

This chapter considers the status of treaties within the U.S. legal system. The focus is on international agreements concluded through the senatorial advice-and-consent process specified in Article II of the Constitution. The chapter describes that process, including the Senate’s ability to condition its consent through reservations and other qualifications. It also discusses the role of treaties as supreme law of the land, including the situations in which treaties will be considered “self-executing” and “non–self-executing,” as well as the later-in-time relationship of treaties to federal statutes. The chapter also discusses the relationship of treaties to constitutional limitations concerning the separation of powers and federalism, including the implications of the Supreme Court’s 1920 decision in Missouri v. Holland. The chapter concludes with a consideration of the president’s constitutional authority to withdraw the United States from treaties.

The Republic of France

2021 ◽  
pp. 157-188
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
French Revolution ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Power ◽  
Checks And Balances ◽  
Fifth Republic ◽  
National Assembly ◽  
The Republic

This chapter looks at French judicial review. From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. The 1958 French Constitution provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister (who can be from opposite political parties); and with its increasing focus on decentralization. As such, just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Judicial review in France was hugely expanded in 1971, for rights from wrongs reasons; in 1974, for insurance and commitment reasons; and in 2008, for borrowing reasons.

scholarly journals THE LAW OF WORDS: STANDING, ENVIRONMENT, AND OTHER CONTESTED TERMS

2018 ◽  
Vol 23 (2) ◽  
pp. 330
Author(s):  
David Nathan Cassuto
Keyword(s):  
Environmental Protection ◽  
Legal System ◽  
Personal Injury ◽  
Environmental Services ◽  
Objective Standard ◽  
The Earth ◽  
The Social ◽  
The Supreme Court ◽  
Citizen Suits ◽  
Definition Of

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article ill’s standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw’s distinbtion between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective standard by which a plaintiff, society or a court can measure harm or injury. Using examples drawn both from history (the 7) aiI Smelter. Arbitration (1930-41)) and fiction (Barbara Klngsolver’s novel Animal Dreams), this Article illustrates that the inherent contingency of language renders it impossible to define harm or injury without acknowledging the systemic perspective from which the concepts are viewed. The path to an intelligible standing doctrine lies not in focusing on this artificial opposition, but instead in acknowledging statutory violations as injurious to the social and legal system of which we all form a part. Assuming the violated statute contains a citizen suit provision, the resulting harm to the system could and should enable individuals to sue. This policy would conform the Court’s standing jurisprudence to the language and intent of the statutes before Ii. Moreover, this policy would counter the undermining of the rhetoric of environmental protection that persists so long as the Supreme Court continues its frequent yet unsucceesfid efforts to retool its definition of cognizable legal injury.

COURTS OR THE LEGISLATURES? MARIJUANA POLICY IN GEORGIA AND THE UNITED STATES

Law and World ◽  
2019 ◽  
pp. 7-13
Author(s):  
William Watkins
Keyword(s):  
United States ◽  
Legal Status ◽  
Democratic Republic ◽  
Separation Of Powers ◽  
The United States ◽  
Fundamental Question ◽  
Recent Experience ◽  
The Status ◽  
The Republic ◽  
Western Democracies

Who is to decide? This is the fundamental question facing a democratic republic. A separation of powers is widely accepted in western democracies with legislatures making laws, executives implementing the law, and judges interpreting and applying laws to actual cases and controversies brought before them. But when does the judicial role depart from judging and impermissibly lurch into the realm of policymaking which most people agree is a legislative function? This article examines such questions in reference to recent experience in the Republic of Georgia and the United States regarding the legal status of marijuana. In both countries courts and legislatures have taken decisive and controversial actions regarding the status of cannabis in society. But in so doing, have the judicial and legislative branches respected separation-of powers-principles, or have the lines been the two branches become blurred?

Treaties and the Constitutional Separation of Powers in the United States

1918 ◽  
Vol 12 (1) ◽  
pp. 64-95 ◽  
Author(s):  
Quincy Wright
Keyword(s):  
United States ◽  
United States Of America ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
The United States ◽  
Fundamental Principle ◽  
Executive Power ◽  
And Function

The Constitution wholeheartedly accepted Montesquieu’s theory of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others. The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that “the executive power shall be vested in a President of the United States of America,” whereas the treaty-making power is vested in the President acting “by and with the advice and consent of the Senate — provided two-thirds of the senators present concur.” Furthermore “treaties made … under the authority of the United States” are “the supreme law of the land.” Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation emphasized by Hamilton in the Federalist.

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