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A Response to Robert J. Delahunty’s “Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative,” by Richard M. Pious

Professor Delahunty writes on page 89 of Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative that I get FDR exactly wrong when I claim in Franklin D. Roosevelt and the Destroyer Deal: Normalizing Prerogative Power that he relied on prerogative power to conclude the Destroyer Deal with Churchill. (Richard M. Pious, Franklin D. Roosevelt and the Destroyer Deal: Normalizing Prerogative Power, 42 Presidential Stud. Q. 190, 195–196 (2012)). 

Copyright - NavSource Naval History

Copyright – NavSource Naval History

Delahunty, using his own definition of prerogative (that it is an emergency power that the President deploys to violate law) in his article, would be correct in his criticism, had I used his narrow definition. But I use a broader definition of prerogative power, standard in the field, which is that prerogative encompasses the constitutional powers of the office of President in Article II, and such sovereign powers and concomitants of nationality that he also claims (including powers derived from treaties and international agreements, or customary international law).

Justice Robert H. Jackson

And so, even on the page Delahunty cites, I devote considerable attention to the way in which Jackson construes the two key statutes rather than claims any dispensing power. But I also point out that FDR’s directions to Jackson to read the statutory language in ways that were clearly at odds with both the plain text and legislative intent involved the presidential prerogative to “take care that the laws be faithfully executed.” (The interested reader can consult Jackson’s posthumous autobiography, That Man, for a full account.) And my argument about FDR’s turn toward prerogative is in the context of his inability to get congressional backing for either a treaty or a law, which led him to conclude an executive agreement instead. My broad interpretation of presidential prerogative (which includes, but is not limited to, emergency powers and dispensing powers) is pretty standard fare. Interested readers can consult the article I wrote on the subject for the leading reference book on the American presidency, Prerogative Power and Presidential Politics, in The Oxford Handbook of the American Presidency (George Edwards, ed., New York: Oxford University Press, 2009), which includes a bibliography dealing with various forms of prerogative. Or they could consult the response to FDR’s actions penned by many distinguished legal scholars at the time, who took for granted that FDR had exercised prerogative powers, including Edward Corwin’s letter excoriating FDR (in The New York Times, October 13, 1940, p. 72). Or they could follow the response of Wendell Willkie, then running against FDR, who warned “we must be extremely careful in these times, when the struggle in the world is between democracy and totalitarianism, not to eliminate or destroy the democratic processes while seeking to preserve democracy (Chicago Daily Tribune, September 4, 1940, p. 6) and who charged that the President’s decision to bypass Congress was “the most dictatorial and arbitrary of any President in the history of the U.S.” (Chicago Daily Tribune, September 7, 1940, p. 8). I happen to believe that FDR used a combination of statutory interpretation and prerogative powers to conclude a deal that was necessary (if not sufficient) in creating the wartime alliance with Great Britain. That I do not believe that he went off half-cocked into emergency prerogatives and the dispensing power will be clear to anyone who reads my article on the subject carefully and pays close attention to definitions and concepts.

Richard M. Pious
Adolph and Effie Ochs Professor, Barnard College
Graduate School of Arts and Sciences, Columbia University


The Disclosure Debates Recap: Food and Product Labeling Panel

This post, written by Vermont Law Review Articles Editor Caitlin Stanton, first appeared on Vermont Law School’s Environmental Health blog

During Vermont Law School’s 13th Annual Law Review symposium, the Disclosure Debates, another panel discussion related to environmental health was theInformation Disclosure through Food & Product Labeling panel. Panelists included Brian Dunkiel, co-founder of Dunkiel Saunders; David Zuckerman, Vermont State Senator and Farmer, Full Moon Farm; George Kimbrell from the Center for Food Safety and Lewis and Clark Law School; Christine DeLorme from the Federal Trade Commission’s Division of Advertising Practices; and Walter Olson from the Cato Institute. The panelists discussed labeling generally and specifically focused on labeling of genetically modified organisms (GMO). Corn, soy, and canola oil are the most common genetically engineered crops, and are present in 70 percent of popular processed foods like breakfast cereal, cookies, chips, soda and frozen meals.  Government approval of GMOs is generally based on short-term studies using animal models, which cannot determine the long-term consequences of consuming genetically engineered foods over the course of a lifetime.  While more than 40 countries label GMOs, including the European Union, Australia, Saudi Arabia, Russia, Japan and China, and while polls show that the majority of Americans would like labeling of GMOs, their presence in commercially available foods is not currently regulated. The panelists discussed the balance between the public’s desire to know what they are eating, the legal barriers to mandatory disclosure, and how much information consumers need. As a farmer, David Zuckerman discussed GMOs from the perspective of a farmer and a consumer. He focused on the relative uncertainty surrounding the health impacts of GMOs, including the connection between the introduction of modified crops and an increase in gastrointestinal problems. To provide context, David explained the process of splicing Bacillus thuringiensis, a bacteria found in soil, into the genes of plants. The bacteria affect a protein mechanism that causes toxicity in insect larvae, but is not known to be present in humans, and is used as an organic pesticide in liquid form. When spliced into the genes of an entire crop, however, the level of exposure can lead to resistant larvae. More importantly for health, the health effects of this modification, and others, are unknown. Some studies indicate that Bacillus thuringiensis damage the ileum (a portion of the small intestine), which may cause chronic illnesses. Nevertheless, the health effects of this modification, and others, are generally unknown. These unknowns raise concerns and creates a demand for information about what, exactly, consumers are putting into their bodies. George Kimbrell noted that almost all Americans (between 90 and 95 percent) believe that

they have the right to know if their food is genetically modified. Despite this consensus, there are several legal issues that could prevent labeling requirements, including preemption, the First Amendment, and the Dormant Commerce Clause. Dismissing preemption due to a lack of federal laws, George also explained that while the First Amendment protects commercial speech, courts will review any challenge under a rational basis test. Due to the lack of federal oversight, and because labeling is legitimately related to state interests, including health, the economy (preventing contamination which would result in export bans), and the environment, First Amendment challenges are unlikely to prevail. George discussed two recent cases that indicate a similar outcome for any challenges to labeling requirements under the Dormant Commerce Clause. In Rocky Mountain Farmers Union v. Goldstene, the Ninth Circuit held that California’s low carbon fuel standard (LCFS), adopted to reduce emissions from fuel sold in the state, does not facially discriminate against out-of-state ethanol or crude oil. Referring to the commerce clause balancing test in Pike v. Bruce Church Inc., 397 U.S. 137 (1970), the court held that “absent discrimination, we will uphold the law ‘unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.’” In American Meat Institute v. U.S. Department of Agriculture, the District Court for the District of Columbia declined to issue a preliminary injunction to prevent USDA’s Country of Origin Labeling regulations for meat from going into effect. The court applied the rationality test fromZuaderer because the rule would impose a disclosure requirement of “purely factual and uncontroversial” information, and determined that the threshold from Zauderer was easily met because there was “clearly a reasonable relationship between the government’s interest in preventing consumer confusion about the origins of muscle cut meat . . . and the required disclosure of specific production step information.” The judge also addressed First Amendment issues, asserting that the government has the power to impose regulations that eliminate confusion, and that “in the First Amendment context, it is the burden on speech, not pocketbook, that matters.”

These decisions correspond to a topic introduced by Brian Dunkiel: the consumer as regulator. While consumers base purchasing decisions on marketing claims, these decisions are based on consumer trust in the claims. Their power therefore lies in the potential that demand translates into environmental change. As Walter Olsen argued, however, information also has the power to overwhelm consumers. The power of disclosure is therefore tied to the information itself, and whether consumers have the capacity to understand and interpret the information. Too much information can decrease the perception of risk or even pique a consumer’s curiosity. A successful disclosure rule would therefore encourage judicious disclosure.

The Disclosure Debates Recap: Environmental Laws & Disclosure Requirements Panel

This post, written by Vermont Law Review Articles Editor Caitlin Stanton, first appeared on Vermont Law School’s Environmental Health blog

The Vermont Law Review hosted its 13th Annual Symposium, the Disclosure Debates: The Regulatory Power of an Informed Public. The event addressed disclosure in the context of environmental laws, financial regulation, food and product labeling, and campaign finance. Professor Pat Parenteau moderated the first panel, Environmental Laws & Disclosure Requirements. The panel included Shakeb Afsah from Performeks LLC and the CO2 Scorecard, Mark Cohen from Vanderbilt Law School and Resources for the FutureKatrina Kuh from Hofstra University, Matthew McFeeley from the Natural Resources Defense Council, and Shailesh Sahay from Arnold & Porter LLP, and focused on the conflicts inherent in information disclosure.

Professor Kuh provided a unique perspective, focusing on the issue of disclosure on the individual, both as the audience and as the subject. When considering individuals as the audience, the question becomes how to inform them. When individuals are overexposed to information, the risk is that they will become confused or frustrated and will underestimate or disregard risk. When considering individuals as the subject, the question becomes how to involve them. Quoting Richard Lazarus, who identified that “the increased cognitive severance for consumers between environmental cause and effect exacerbates the potential environmental impact of such increased consumption,” Professor Kuh referenced current initiatives to provide information about an individual’s habits and their impact on the environment. While initiatives like smart meters that monitor individual energy use raise concerns, such as privacy, compelled speech, scientific restraints, and administrative questions, they also generate data and information that can be used as benchmarks or as an impetus for community-wide changes. Matt McFeeley also touched on this issue within the context of hydraulic fracturing. Matt suggested that to be successful, disclosure laws must capture enough information to reveal a pattern or consequence of behavior. For example, only four states have disclosure requirements before a company begins a fracking project, but without baseline data, it is impossible to determine the effect a project ultimately has on groundwater or air quality. Disclosure requirements must also generate enough of the necessary information to create actual knowledge. For example, a disclosure law requiring identification of chemicals in fracking fluid may ignore chemicals used in other aspects of gas harvesting. Disclosure laws must also exempt certain information without undermining the underlying purpose of the policy. If a state exempts disclosure of chemicals in fracking fluids, it may present an incomplete picture of the exposure and risk associated with a given project. consumer_shopping.jpgTouching on what would become a recurring issue, Professor Cohen discussed the interplay between consumer demand for information and the ability of manufacturers to make information available without affecting the incentive for innovation. As an economist, Professor Cohen focused on this symbiotic relationship, suggesting that companies will voluntarily disclose information if it results in changes in consumer behavior, and that consumer demand for transparency will drive manufacturers to comply with disclosure requirements.

Shailesh Sahay offered a less cynical perspective, suggesting that businesses do not want to provide products or services that are harmful to health or the environment, and that these voluntary programs provide an opportunity to evaluate their products and to inform the public about them.There is a limit to the benefits of disclosure, however, when disclosure laws require businesses to reveal trade secrets, which in turn stifles innovation. Benefits of disclosure also become limited when information overwhelms a consumer or creates a barrier to knowledge. Greenwashing, or the overuse of certifications and labeling, can make information meaningless, and raw data can be difficult or impossible for consumers to interpret and can lead to misunderstandings about risks or exposure. Professor Parenteau, as moderator, touched on a theme that ran through the entire event: the value of disclosure, posing the question, what makes disclosure “good?” In response, Shakeb articulated one of the most compelling thoughts of the day, that “it is easy to create the perception of disclosure, but there is a difference between authentic disclosure and the perception of disclosure.” The panelists agreed that true disclosure requires a standard that enables the public to establish the type of information necessary and the format that will enable analysis, interpretation, and dissemination. While “authentic disclosure” may lead to greenwashing and issues of credibility, which in turn creates indifference from consumers or even mistrust, and while raw data may be difficult tointerpret, information establishes a baseline understanding about what chemicals to monitor and regulate, and can be used to promote consumer awareness. The true value of disclosure lies in discovering the zone of public interest, where industry and public interest overlap. For more information about specific projects or resources discussed by the panelists, visit the following websites: Toxic Release Inventory Global Reporting Initiative Carbon Disclosure Project EPA Design for the Environment Program Greenwashing Index Sins of Greenwashing

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