Law Commons^™

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

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficia-ries 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 conclu-sions 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 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 …