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Full-Text Articles in Legal History
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Faculty Scholarship
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …
The Dependent Origins Of Independent Agencies: The Interstate Commerce Commission, The Tenure Of Office Act, And The Rise Of Modern Campaign Finance, Jed Handelsman Shugerman
The Dependent Origins Of Independent Agencies: The Interstate Commerce Commission, The Tenure Of Office Act, And The Rise Of Modern Campaign Finance, Jed Handelsman Shugerman
Faculty Scholarship
Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control.
The modern executive's design of unitary presidential control over most offices, alongside "independent" regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers and ending the Senate's power to protect those officers. …
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …