Law Commons^™

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

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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 …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

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Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

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Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese

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The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the …

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

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What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

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Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth

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The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking …

Presidential Signing Statements: A New Perspective, Christopher S. Yoo

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This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

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Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

Presidential Power In Historical Perspective: Reflections' On Calabresi And Yoo's The Unitary Executive, Christopher S. Yoo

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On February 6 and 7, 2009, more than three dozen of the nation’s most distinguished commentators on presidential power gathered in Philadelphia to explore themes raised by a book authored by Steven Calabresi and I co-authored reviewing the history of presidential practices with respect to the unitary executive. The conference honoring our book and the special journal issue bringing together the articles presented there provide a welcome opportunity both to look backwards on the history of our project and to look forwards at the questions yet to be answered.

The First Word, Elizabeth Magill

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Does the President get the last word in the legislative process when he issues a signing statement? Those angry about President Bush's December 2005 signing statement on the Detainee Treatment Act thought he did just that. Implying that the statute's prohibitions on cruel, inhuman, or degrading treatment would not apply in certain circumstances, President Bush's statement provoked an outcry. Critics claimed that the President did not have the political muscle to defeat the statute, so he instead announced that he would sometimes ignore it. Having the last word has its advantages.

But so does having the first word. Signing statements …