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Full-Text Articles in Law
How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen
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
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
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 …