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Article II

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Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson Nov 2023

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …


Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman Aug 2023

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 …


Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman Jul 2023

Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …


Federal Courts: Article I, Ii, Iii, And Iv Adjudication, Laura K. Donohue, Jeremy Mccabe Jun 2022

Federal Courts: Article I, Ii, Iii, And Iv Adjudication, Laura K. Donohue, Jeremy Mccabe

Catholic University Law Review

The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, …


Reviving Liberal Constitutionalism With Originalism In Emergency Powers Doctrine, Gerald S. Dickinson Jan 2022

Reviving Liberal Constitutionalism With Originalism In Emergency Powers Doctrine, Gerald S. Dickinson

Articles

Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis …


Eroding "Checks" On Presidential Authorty -- Norms, The Civil Service, And The Courts, Peter L. Strauss Apr 2020

Eroding "Checks" On Presidential Authorty -- Norms, The Civil Service, And The Courts, Peter L. Strauss

Chicago-Kent Law Review

No abstract provided.


Distinguising Between Core And Peripheral Presential Powers, Harold J. Krent Apr 2020

Distinguising Between Core And Peripheral Presential Powers, Harold J. Krent

Chicago-Kent Law Review

No abstract provided.


Effective But Limited: A Corpus Linguistic Analysis Of The Original Public Meaning Of Executive Power, Eleanor Miller, Heather Obelgoner Apr 2020

Effective But Limited: A Corpus Linguistic Analysis Of The Original Public Meaning Of Executive Power, Eleanor Miller, Heather Obelgoner

Georgia State University Law Review

This paper will engage linguistic and historical analysis in an effort to discern the original public meaning of the phrase executive power as used in Article II of the United States Constitution. In light of significant modern controversy surrounding the proper limits of executive authority, an original meaning interpretation of this critical phrase will illuminate the executive’s function as it was commonly understood at the time of constitutional ratification. Part I will engage in a linguistic analysis of the phrase executive power, drawing primarily on corpus linguistic methodology surrounding the phrase’s Founding Era usage. Part II will analyze the history …


Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller Jan 2020

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …


Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand Jan 2020

Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand

Faculty Scholarship

On March 3, 2020, the Supreme Court heard argument in Seila Law v. CFPB, the biggest removal law case since Free Enterprise Fund v. PCAOB was decided a decade ago. The petitioner challenges the constitutionality of the Consumer Financial Protection Bureau, the independent agency established by the 2010 Dodd-Frank Act (DFA) to protect consumers from harmful financial products. Seila Law, a California firm under investigation by the CFPB for its debt-relief marketing practices, argues that statutory limits specifying that the president can fire the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” (INM) violate the …


Fiduciary Constitutionalism: Implications For Self-Pardons And Non-Delegation, Ethan J. Lieb, Jed Handelsman Shugerman Jul 2019

Fiduciary Constitutionalism: Implications For Self-Pardons And Non-Delegation, Ethan J. Lieb, Jed Handelsman Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign's exercise of its political power must be constrained by fiduciary standards-like the duties of loyalty and care-is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclusions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …


Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman Jun 2019

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must "take Care that the Laws be faithfully executed" and take an oath or affirmation to 'faithfully execute the Office of President." These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …


Prosecutors At The Periphery, Peter M. Shane May 2019

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …


James Wilson As The Architect Of The American Presidency, Christopher S. Yoo Jan 2019

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

All Faculty Scholarship

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …


How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen May 2018

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …


Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent Feb 2018

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …


Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck Jan 2018

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Scholarly Works

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …


Bush, Obama And Beyond: Observations On The Prospect For Fact Checking Executive Department Threat Claims Before The Use Of Force, Leslie Gielow Jacobs Oct 2017

Bush, Obama And Beyond: Observations On The Prospect For Fact Checking Executive Department Threat Claims Before The Use Of Force, Leslie Gielow Jacobs

Leslie Gielow Jacobs

This piece looks at the recurring problem of inflated threat claims offered by executive branch actors to persuade the Nation to consent to the use of force. It sets out the experience of the Bush Administration’s use of incorrect threat claims to persuade the country to consent to the use of force in Iraq as a backdrop to evaluating the President Obama’s use of threat claims to support the continuing use of force in Afghanistan. Although comparison of threat advocacy by the Bush and Obama administrations must be imperfect, it allows for some observations about the extent to which the …


Creating Precedents Through Words And Deeds, Harold Krent Jan 2017

Creating Precedents Through Words And Deeds, Harold Krent

All Faculty Scholarship

Book review: Untrodden ground: how presidents interpret the Constitution. By Harold H. Bruff. Chicago: University of Chicago Press, 2015. 557 pages. Reviewed by Harold J. Krent


The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Aug 2016

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …


The President's Faithful Execution Duty, Harold H. Bruff Jan 2016

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.


The New Elections Clause, Michael T. Morley Jan 2016

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.


Foreword, Philip C. Bobbitt Jan 2016

Foreword, Philip C. Bobbitt

Faculty Scholarship

In every state of which the international system is composed, the constitution is necessarily involved in the making and exe­cution of the state’s strategy. The nature of that involvement is one dimension by which we determine the character of a par­ticular state. The subordination of the professional military to elected representatives of the state; the making of legal regula­tions governing land and naval forces by the lawmaking body; the fashioning of rules of engagement by an elected executive; and above all, the parliamentary control of the decision to go to war that characterize states of consent — which in the …


Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman Aug 2015

Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman

Thomas S Glassman

Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges …


In Re: Grand Jury Proceedings: The Semantics Of "Presumption" And "Need", James M. Popson Jul 2015

In Re: Grand Jury Proceedings: The Semantics Of "Presumption" And "Need", James M. Popson

Akron Law Review

This note analyzes the District Court of the District of Columbia’s application of the doctrine of executive privilege in In re Grand Jury Proceedings. Part II provides a brief history of executive privilege and discusses precedents that impacted the court’s decision. Part III indicates the procedural posture of the case and sets forth the substantive facts. Part IV discusses the court’s analysis of the executive privilege issue in light of recent District of Columbia Circuit Court decisions. Part V concludes that In re Grand Jury Proceedings bolstered the notion of a presumption in favor of the privilege, while observing that …


The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam Jan 2015

The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam

Northwestern University Law Review

No abstract provided.


The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark Oct 2013

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …


The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark Jan 2012

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …


The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett Jun 2011

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

Scholarly Works

This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …


On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss Jan 2011

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …