President/Executive Department Commons^™

The Interpretive Force Of Alexander Hamilton’S Early Expositions Of Presidential Power, Michael Stokes Paulsen

Pepperdine Law Review

The most important, rightly influential, early interpretations of the Constitution on presidential power concerning matters of war, peace, and foreign affairs flowed from the able pen of Alexander Hamilton in three sets of pseudonymous public essays: as “Publius” in The Federalist (1787–1788); as “Pacificus” (1793–1794); and “Camillus” (1795–1796). As Publius, Hamilton expounded a broad understanding of presidential constitutional power generally and of presidential power in war and foreign affairs specifically, including an essentially plenary Commander-in-Chief power over the conduct of authorized war (but with no constitutional power to initiate war: that power being explicitly and exclusively assigned to Congress). As …

Legal Academia And Permanent Democracy: The Fault In Our Law Schools, Sara Dillon

DePaul Journal for Social Justice

It is widely recognized that the American Constitution is failing as the foundational document of a modern democracy. Although many basic principles of constitutionalism have faded into irrelevance, with rising authoritarianism eclipsing such core ideals as judicial independence, separation of powers and restraints on arbitrary use of power, America’s nearly 200 institutions of legal teaching and scholarship have provided little in the way of proposals for urgently needed law reform. It is striking that even with so many high-powered academic institutions, so few meaningful proposals for constitutional change have been presented to the public as a way out of our …

The Imperious Presidency: Brazen Power Plays And Executive Overreach, Daniel Farber

Pepperdine Law Review

The Trump Administration has been prone to brazen power plays. These actions have three basic characteristics: they are dramatic deviations from conventional governance, generating headlines and online clicks; their legal (and sometimes factual) foundations are tenuous; and they are potentially effective even if they are ultimately held lawful. This Essay analyzes this phenomenon. It argues that such power plays can be a rational strategy for a president under certain circumstances. Power plays can help dominate the news flow and energize the political base. They can also cause behavior shifts in their targets, even when litigation would be likely to overturn …

“The Future Of Executive Power”: An Overview, Robert J. Pushaw Jr.

Pepperdine Law Review

This symposium overview examines the rapid expansion of presidential power in the modern era, culminating in what the author and contributors describe as an unprecedented assertion of Article II authority during President Trump’s second term. It argues that the Constitution’s original separation-of-powers framework—designed to prioritize legislative authority and constrain the executive—has been inverted due to the growth of presidential control over foreign affairs, the administrative state, and policymaking. The article traces this shift through historical developments such as the New Deal, the rise of independent agencies, and the emergence of the “unitary executive” theory, while also analyzing recent Supreme Court …

The Power To Declare Peace, Michael Stokes Paulsen

Pepperdine Law Review

The Constitution gives Congress the power “to declare War.” The meaning of that grant of power is much debated, but its converse is much neglected: To whom does the Constitution assign the power to declare peace? This Article comprehensively examines the Constitution’s various assignments of the power(s) to make peace—constitutional powers to end, as a practical matter and as a binding legal matter, a prior legal condition of war. Both the President and Congress possess several such powers. The President has the power, with the advice and consent of two-thirds of the Senate, to make treaties, including peace treaties that …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Presidential Adjudication, Emily S. Bremer

Journal Articles

Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act (“APA”)—have been viewed as properly insulated from this development. To protect due process, the APA established a regime for ensuring that competent, impartial Administrative Law Judges (“ALJs”) preside over formal hearings. The regime includes two apparent levels of for-cause removal protection for ALJs combined with robust agency head control over the policymaking aspects of formal adjudication. Today, the regime is in peril because it appears to be inconsistent with …

Removal Rehashed Legal History: Response, Andrea Scoseria Katz, Noah A. Rosenblum

Scholarship@WashULaw

We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna Bangalore Prakash aim to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.

There are high hurdles to proving this argument, and this piece fails to scale them. There is little evidence for any of these separate contentions, whether we look to the Constitution’s text or the history …

The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler

William & Mary Bill of Rights Journal

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will …

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray

William & Mary Bill of Rights Journal

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering …

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the …

Deconstructing Invisible Walls: Sotomayor's Dissents In An Era Of Immigration Exceptionalism, Karla Mckanders

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer

St. John's Law Review

(Excerpt)

“Boehner snubs [White House], invites Netanyahu to address Congress.” These words, or words remarkably similar, headlined newspapers all around the United States on January 21, 2015. Without consulting President Obama, House Speaker John Boehner invited Israeli Prime Minister Benyamin Netanyahu to address a joint session of Congress in opposition to the White House’s overtures to Iran with respect to its nuclear program. Speaker Boehner extended the invitation in apparent response to President Obama’s State of the Union Address, in which he informed Congress that any further economic sanctions bill against Iran at that time would be detrimental to ongoing …

The Supreme Court Rules That Trump’S Daca Rescission Doesn’T Pass Muster, Peter Margulies

Law Faculty Scholarship

No abstract provided.

President Trump Bars Uninsured Immigrants From The U.S., Peter Margulies

Law Faculty Scholarship

No abstract provided.

Trump’S Travel Ban At The Supreme Court: Deference Joined By Nudges Toward Civility, Peter Margulies

Law Faculty Scholarship

No abstract provided.

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 …

Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe

Articles & Chapters

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice …

Representative/Senator Trump?, Gary S. Lawson

Faculty Scholarship

The American presidency is a much more powerful office in 2017 than was contemplated by the Constitution of 1788. In large measure, that is because Congress has unconstitutionally subdelegated many of its legislative powers to the President. The President thus effectively functions as the Congress to a significant degree, which not only perverts the constitutional structure but also significantly raises the stakes of presidential elections. There is no good reason to expect Congress or the courts to stem the tide of subdelegation. Presidents, however, have a number of tools available to resist, and even reverse, that tide. While there is …

The Fragility Of The Free American Press, Ronnell Andersen Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …

Globalization And The Growth Of Executive Power: An Old Story, Alasdair Roberts

Indiana Journal of Global Legal Studies

Americans have always worried about an undue concentration of power in the executive branch. Recently, people have worried that globalization might be making the problem even worse. But the concern is overstated, or at least misstated. Globalization is not a new phenomenon, and most of its effect on executive power was realized decades ago. And globalization might undermine executive power, rather than bolster it, either because globalization undermines the authority of the nation-state or shifts authority to technocrats. If there is a general tendency toward increased executive power in the twenty-first century, this is might attributable more directly to other …

The Ninth Circuit’S Refugee Eo Decision: Methodically Misreading The Immigration Statute, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Fourth Circuit And The Refugee Eo: Establishing Confusion, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Ninth Circuit And The Refugee Eo: Back To The Statute?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Fourth Circuit Argument On The Refugee Eo: Second-Guessing The President Or Safeguarding Individual Rights?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Vice Presidency In Five (Sometimes) Easy Pieces, Vikram David Amar

Pepperdine Law Review

The public perception of the Vice President is that of an individual with little actual authority, but who has the potential to be thrust into the most powerful office in the world. But the modern Vice President has additional responsibilities that many often forget. Contrary to public perception, the Vice President’s role as President of the Senate carries important Constitutional responsibilities, such as the ability to weigh-in with tie-breaking votes in the Senate or preside over impeachment trials. Though overlooked, these are important and powerful responsibilities. Additionally, the Vice President has assumed the role of Presidential “running mate” and with …