Volume 73, Issue 4
Summer 2024
ARTICLE
What Congress Needs to Break the Immigration Reform Stalemate
Maryam T. Stevenson
Abstract. This article provides a policy proposal for an immigration reform package that could be successful in the modern-day Congress. It is the second article of a series that began with an analysis of why immigration reform has been unsuccessful over the past 30 years despite bipartisan support. That article argued that polarization combined with the framing of immigration by the media and political elites has caused the public to view immigration as a one-dimensional policy largely defined by border concerns, when in reality, it is a robust policy area that encompasses a number of various issues (i.e. family immigration, skilled and unskilled workers, entrepreneurs, asylum, border control, etc.). This successive article offers a policy proposal that could eclipse those concerns and provides a path forward for Congress and policy elites. . .
ESSAY
The Court’s Abject Failure at Statutory Construction: Sackett v. Environmental Protection Agency
Sam Kalen
Abstract. The essay critiques the Supreme Court’s novel approach toward statutory construction in Sackett (2023). The Sackett Court considered whether the Ninth Circuit applied the appropriate test to determine whether the Sackett’s property contained wetlands regulated under the Clean Water Act (CWA). In doing so, the Court cast aside what has been considered the operative test for assessing jurisdiction, the significant nexus test. In lieu of that test, the majority articulated a considerably constrained understanding of the CWA’s reach. This essay explores how it reached that understanding and why some of the Justices’ analysis is as problematic as the operative conclusion. I explain why the majority opinion and one of the concurring opinions not only shunned any typical analysis when construing a statute, it ostensibly relied on history surrounding navigability without portraying that history with any semblance of thoroughness. . .
NOTES
Christopher Eckhardt
Abstract. On June 30, 2022, judicial deference toward actions of administrative agencies took a significant hit. In West Virginia v. EPA, the Court formally recognized—for the first time—the major questions doctrine, which requires agencies to identify clear congressional authorization when claiming the authority to make decisions of vast economic and political significance. Since June 30, 2022, the Supreme Court has utilized the major questions doctrine in decisions of national importance, including topics ranging from environmental protection efforts to cancelling student debt. This note offers a snapshot of how the major questions doctrine has been applied by federal courts across the country since West Virginia was decided. Beginning with the nondelegation doctrine, this note traces the rise and the beginning of the fall of congressional delegations of power to administrative agencies. This note then summarizes the major questions doctrine and shows how the doctrine has been applied by federal courts in 46 cases since West Virginia was decided. . .
NOTES
Presidents, Congress, and Classified Information: The Constitutional Limitations and Processes Required to Declassify Information
Nick Dunard
Abstract. On August 8 2022, the Federal Bureau of Investigation executed a search warrant at former President Donald Trump’s Mar-a-Lago Resort. The search uncovered hundreds of documents bearing various classification and governmental markings. On June 8, 2023, Trump was indicted in the Southern District of Florida on thirty-seven counts of unlawful retention of national defense information. Almost immediately after the search, the former President and his allies advanced a theory that Trump’s retention of classified documents was permissible because he had declassified the documents before leaving office on January 20, 2021. The former President has repeatedly mentioned these arguments in both civil and criminal litigation following the search, but has provided no evidentiary support for his contentions that he declassified the documents. While other aspects of the search warrant and criminal case have been adjudicated by the Eleventh Circuit and Supreme Court, no court has yet addressed the merits of the declassification defense. This Note will examine the propriety of former President Trump’s claims that he cannot be criminally charged with unlawful retention of national defense information because the information was declassified. First, it will examine the historical and Constitutional background of the executive classification system, including judicial precedents interpreting the scope of the power. Next, it will introduce parallel statutory frameworks that Congress has enacted to criminalize the retention of classified information, automatically classify certain types of information, and establish guidelines for the handling of Presidential records. Considering the concurrent authorities of the Executive and Legislative branches over classified information and government records, the Note will then analyze the merits of former President Trump’s claimed powers to declassify and retain classified documents as of right. It will conclude that a President does not have the plenary power to declassify all types of classified documents, and that any declassification must comply with established procedures to be effective. Lastly, the Note will conclude that based upon publicly available information, former President Trump did not follow any such procedures that would have led to the documents being properly declassified before he left office.. . .