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Presidential Factfinding, Shalev Roisman

Vanderbilt Law Review

The modern President possesses enormous power. She can use military force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the "national interest," perhaps that it will preserve "regional stability" or protect American lives. To impose …