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Showing papers in "FIU Law Review in 2016"






Journal ArticleDOI
TL;DR: The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur as discussed by the authors. This high threshold for consent reflects the framers' concern that treaties not be too easy to make.
Abstract: The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist. In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.

2 citations




Journal ArticleDOI
TL;DR: The authors discusses several categories of such actions, while providing examples from the Obama administration and discusses regulations disguised as guidance, with specific reference to the U.S. Department of Education Office of Civil Rights' “Dear Colleague” letter regarding sexual assault on campus.
Abstract: While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.

1 citations


Journal ArticleDOI
TL;DR: The most evident of truths, that all of us are created equal, is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall.
Abstract: * We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall. .. . It is now our generation's task to carry on what those pioneers began.. .. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.