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Legal History Commons

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President/Executive Department

Faculty Scholarship

Judicial review

Articles 1 - 4 of 4

Full-Text Articles in Legal History

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader Oct 2022

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …


Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley Jan 2015

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 Jan 2014

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 Jan 2013

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 …