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Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
Notre Dame Law Review
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power—Justice Jackson’s tripartite framework and the historical gloss on executive power—congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …
Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski
Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski
Notre Dame Law Review
This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and “good cause” limitations on the President’s removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President’s appointment power—and with good reason, given the ubiquity of partisan balance requirements and the executive branch’s historical acquiescence to them. However, the Supreme Court’s decision in Free …