William P. Marshall

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

Proponents of the unitary executive have contended that its adoption by the framers “swept plural executive forms into the ash bin of history.” Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intra-branch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer. author. William R. Kenan Distinguished Professor of Law, University of North Carolina at Chapel Hill. I am grateful to Elizabeth Ferrill and Tyler Tarrant for their research assistance. I would also like to thank Hal Krent, Jim Tierney, and (especially) Kara Millonzi for their helpful comments and suggestions. MARSHALL FORMATTED FOR SC 2 (4-26-06) 8/31/2006 2:49 PM break up the presidency?

The Supreme Court, the First Amendment, and Bad Journalism

The First Amendments guarantees of freedom of the press and freedom of speech do not purport to set standards for the news media. In interpreting the First Amendment, however, the Supreme Court has played a significant role in setting the legal framework for journalistic practice. Everything from the reporters use of confidential sources to the protection of her files from police search, from her access to government proceedings and institutions to her potential iability for infringing upon rights of privacy and reputation have been the subject of the Courts First Amendment jurisprudence. Indeed, the Courts decisions have covered much of the full range of the journalistic enterprise. Despite this extensive involvement, the Court generally has not considered how its decisions affect the standards of journalistic practice. At one level, this is perfectly understandable-the Court

Not a Winn-Win: Misconstruing Standing and the Establishment Clause

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program. This article examines two specific problems that arise from the Winn decision. First, we contend the distinction between concrete, individual harms and widely-shared, intangible claims is inescapably illusory and was inconsistently applied even in the Winn opinion itself. Second, we point out the Court’s assumption that widely-shared, intangible injuries such as psychic harm are not sufficient to confer standing conflicts with a large segment of Establishment Clause jurisprudence that identifies the prevention of such injuries as central First Amendment concerns. Such widely-shared, intangible injuries include coercion, sect preference, and outsider alienation, all harms that have all been posited as lying at the heart of the anti-Establishment mandate. Denying standing to litigants bringing such claims, therefore, undermines the anti-establishment mandate, even if the injury is thought of as intangible. We therefore contend by suggesting that such injuries are non-justiciable, Winn undercuts not only taxpayer standing but much that has been thought to underlie Establishment Clause jurisprudence itself.

Does the First Amendment Prevent or Allow FEMA to Provide Disaster Aid to Churches

To what extent, if any, can the government grant money to churches as part of its efforts to provide disaster relief? Currently, Federal Emergency Management Agency (FEMA) regulations allow certain private nonprofit organizations to receive disaster assistance if they have tax-exempt status and provide eligible services to the general public. Eligible services include primary and secondary education, medical assistance, child care, alcohol and drug treatment, and arts programs. FEMA prohibits disaster assistance, however, if the nonprofit organization provides certain ineligible services, such as vocational training, political education, athletic activities, and, most important for the purposes of this article, religious activities. As a result, churches are excluded from disaster aid funding. At least 3 churches in the Houston, Texas, area, all damaged by Hurricane Harvey in September 2017, challenged this restriction on constitutional grounds, claiming that FEMA’s refusal to grant disaster assistance to churches violates their rights under the First Amendment’s free exercise clause. In addition, the Trump administration has suggested, aside from this litigation, that it may be prepared to abandon FEMA’s existing regulation and allow churches to receive disaster assistance. If it does, this action would likely trigger a constitutional challenge asserting that providing such aid would violate the First Amendment’s establishment clause. In either case, denying or granting disaster aid to a church will raise serious constitutional questions. This installment of Law and the Public’s Health addresses the second issue first. Would providing disaster aid to churches be permissible under the establishment clause if the Trump administration were to reverse current regulations? It then examines whether FEMA’s current policy of denying such aid violates the free exercise clause, assuming that providing disaster aid to churches would be permissible under the establishment clause.