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President/Executive Department

Constitutional interpretation

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Full-Text Articles in Law

Democracy, Distrust, And Presidential Immunities, Evan H. Caminker Jan 2021

Democracy, Distrust, And Presidential Immunities, Evan H. Caminker

Articles

This Essay sketches how Ely's representation-reinforcement theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by …


The Executive Branch Anticanon, Deborah Pearlstein Nov 2020

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …


Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson Jun 2019

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …


Presidential Inability, Thomas M. Cooley Dec 1880

Presidential Inability, Thomas M. Cooley

Articles

The protracted illness of President Garfield led to much discussion and a variety of opinions as to what constitutes a disability in the Presidential office which will justify the Vice-president in assuming its duties.