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Full-Text Articles in Law
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Faculty Scholarship
States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress's faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with …