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I. INTRODUCTION 95 II. STEPS TOWARD REPARATION: DEVELOPMENTS SINCE THE DRAFT CONCLUSIONS 101 A. General Assembly Resolution 101 ES-11/5 of November 14, 2022 1. Recitals 101 a. The ICJ's Provisional [...]

ARTICLE CONTENTS INTRODUCTION 5 1. A PRELIMINARY PARSING 13 II. COMMANDERS IN CHIEF--NEITHER UNCOMMON NOR AUTONOMOUS 18 A. Commanders in Chief Before the Constitution 19 1. English and British Practice [...], The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of "commander in chief" is as obvious as it is unequivocal--it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief's power begins and ends. In particular, establishing the Clause's limits is an acute and persistent problem. Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause's elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistendy directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the "first General and Admiral." The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term "commander in chief" would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them. To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these otlier clauses. How we read the Commander-in-Chief Clause matters. Without a sense of the Clause's alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article's assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.

The formal rules governing the UN Security Council offer little insight into how negotiations are conducted on a day-to-day basis. While it is generally assumed that permanent members dominate negotiations, this article investigates avenues for influence for elected members and the UN Secretariat. Institutional power is used to show how permanent members adopt dominant positions in negotiations extending far beyond their Charter-given privileges. Dominance of permanent members is moderated, however, by the legitimacy that support from elected members brings to a resolution. Similarly, the UN Secretariat can use its legitimated authority to influence decisions. The article argues that informal practices are key in understanding how power and influence are allocated in the Council and it forms a building block for future analyses of Security Council practices. This argument also has implications for the perennial reform debates and the prospects for informal reform. Keywords Security Council--decision-making--influence--legitimacy--institutional power--practices, Decisions made by the UN Security Council impact the lives of millions of people around the world, yet the decision-making process is largely informal and shrouded in secrecy. (1) The [...]

INTRODUCTION I. A BRIEF HISTORY OF SECTION 404 II. THE SECTION 404 PERMIT PROGRAM A. The Section 404(b)(1) Guidelines B. The Section 404(c) "Veto" Regulations III. THE INITIAL ELEVEN SECTION [...], For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The provision authorizes the U.S. Environmental Protection Agency (EPA) to overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual and perhaps unprecedented in environmental law. The exceptional nature of section 404(c) may explain why EPA has employed it only thirteen times in over four decades and just three times since lobo. When EPA has invoked its 404(c) authority, it has often done so to support the positions of federal and state fish and wildlife agencies and, perhaps surprisingly, Corps field-office officials. These agencies managed for eighteen years--between 1990 and 2008--to conduct the 404 permit program, one of the largest federal permit programs, without a single 404(c) veto, helped by the use of an interagency review process authorized by section 404(q) of the Act. The most recent three 404(c) actions--two involving large-scale mining operations and the other involving a large-scale flood control project--have all generated significant widespread controversy, and the fate of none of them is finally resolved. Their notoriety may disguise what we believe to be a chief lesson of having no 404(c) vetoes during the eighteen year period and just three vetoes in a quarter-century: the evolution of the Corps as an environmental agency, a notable achievement of section 404(c), since it has greatly furthered the statute's goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters.

E. The Attleboro Mall-Upholding the Presumption Against Non-Water Dependent Uses in Sweedens Swamp (1986) In 1986, EPA issued its fifth section 404(c) veto, prohibiting the fill of thirty-two acres of [...]

Nine out of 27 presidents in the former communist world have the power to amend vetoed legislation. These presidential powers in the former Soviet Bloc have not been given adequate attention in the comparative politics literature. The authors analyze veto procedures in the excommunist region (27 countries) and argue that amendatory veto power enhances presidential powers in legislative decision making. The findings are particularly important in light of the fact that one of the goals of constitutional design in the former communist world was to curtail rather than boost presidential authority. Keywords: conditional agenda setting; post-communist countries; veto players; presidential and semipresidential regimes

CONTENTS INTRODUCTION I. METHODOLOGY: PLAYING THE ARTICLE I, SECTION 7 GAME A. The Sequential Structure of Article I, Section 7 B. Article I, Section 7 as a Sequential Game 1. [...], By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Article I, Section 7 can inform remedial choice in administrative law--the choice between vacating defective agency action and remanding it without vacatur. It argues that, from the perspective of the sequential structure of Article I, Section 7, vacatur should be the presumptive administrative law remedy. Accordingly, the Note offers a reason to question the recent judicial trend away from the vacatur remedy.