Law Commons^™

Vesting, Jed Handelsman Shugerman

Faculty Scholarship

"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …

Stress Testing Governance, Rory Van Loo

Faculty Scholarship

In their efforts to guard against the world’s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID-19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve readiness …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

The Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's The Specter Of Dictatorship: Judicial Enabling Of Presidential Power (2021), Jed Handelsman Shugerman

Faculty Scholarship

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference …