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The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu
The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu
Faculty Works
A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.
This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …
The Roberts Court And Penumbral Federalism, Edward Cantu
The Roberts Court And Penumbral Federalism, Edward Cantu
Faculty Works
For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.
After fleshing out what “penumbral federalism” …