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Published online by Cambridge University Press: 26 July 2016
This article challenges hierarchical and binary thinking in constitutional theory, and offers an alternative basis that draws on multidimensionality. The recognition that constitutionalism is a collection of ingrained tensions between competing forces and conceptual bases is applied in a study of the executive branch, a field that is especially lacking in general theory. The existing research of the executive is almost entirely concerned with specific legal systems and is typically normative; descriptively, references to puzzles and ambiguity offer an inadequate, a-theoretical basis for the understanding of the nature of the executive. Rejecting three alternative models, two of them hierarchical, the third, binary, I reach the internal tension model, which acknowledges the internal irresolvable tension between the executive’s subservience to law and its dominance beyond law, which underlies executive action. The article addresses the ways law can, and does, maintain this internal tension, and ends with some comments on future research directions.
I thank Yaron Ezrachi, Simon Halliday, Jaako Husa, Martin Loughlin, Barak Medina, Henry Monaghan and Keren Weinshall-Margel for their valuable comments on different versions of the article, and Rona Dinur for research assistance. Research was supported by the Israel Science Foundation (Grant No. 160/09). Opinions and errors are mine only.
1. Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge: Harvard Belknap Press, 2010) at 4 (arguing that the current state of the American republic is far removed from any version of original intent, one that replaces balance of powers with a form of “executive constitutionalism”, under which presidential legitimacy relies on personal charisma, the media, public opinion polls, unilateral decision-making, all supported by legal advice generated from the presidential “branch”).
2. Posner, Eric A & Vermeule, Adrian, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011).CrossRefGoogle Scholar
3. See, e.g., “Constitutionalism,” Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/constitutionalism/#BM1; Mark Tushnet, “A New Constitutionalism for Liberals?” (2003-2004) 28 NYU Rev L & Soc Change 357, assessing various “grand theories” of constitutional law.
4. Bradley, AW, Ziegler, Katja S & Baranger, Denis, “Constitutionalism and the Role of Parliaments” in Ziegler, KS, Baranger, D & Bradley, AW, eds, Constitutionalism and the Role of Parliaments (Oxford: Hart, 2007) at 1–7.Google Scholar
5. See also CP Patterson, “The Evolution of Constitutionalism” (1947-1948) 32 Minn L Rev 427 (“constitutionalism is only the name of the trust which man reposes in the power of a document as a means of controlling the government”); A Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European University Press, 1999) at xiv (“constitutionalism is the set of principles, manners, and institutional arrangements that were used traditionally to limit government.” Although Sajó admits that “constitutionalism is closely linked to traditional nineteenth century liberalism,” and that the term has received limited systematic discussion, most of his important book is dedicated to a general analysis of the structure of constitutional regimes, rather than to a focused analysis of the term).
6. This criticism followed two main strands. First, many written liberal constitutions have been adopted by non-democratic non-liberal polities. Secondly, formal constitutionalism grants excessive importance to the written document. Some constitutional systems have not adopted a full written constitution; moreover, a written text is but the basis for following constitutional developments, which might even transform the nature of the constitution itself. For the first strand see, for example, Greenberg, D, et al. , eds, Constitutionalism and Democracy: Transitions in the Contemporary World (New York: Oxford University Press, 1993).Google Scholar For the second see Bruce Ackerman’s “constitutional moment” theory (e.g., Bruce Ackerman, We the People (Cambridge: Belknap Press, 1993)).
7. See, e.g., McIlwain, CH, Constitutionalism: Ancient and Modern, revised ed (Ithaca: Cornell University Press, 1947) at ch 1;Google Scholar Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977) at ch 5, 6; Ronald Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise” in Freedom’s Law (New York: Oxford University Press, 1996) at 2-19; Aharon Barak, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002) 116 Harv L Rev 19; Aharon Barak, The Judge in a Democracy (Princeton: Princeton University Press, 2006); TRS Allan, “Constitutional Dialogue and the Justification of Judicial Review” (2003) 23 Oxford J Leg Stud 563. See also WP Murphy, “Constitutions, Constitutionalism, and Democracy” in Greenberg et al, supra note 6 at 3, 14-17; Bradley, Ziegler and Baranger, supra note 4, especially at 6; Bruce Ackerman, “The Rise of World Constitutionalism” 83 Va L Rev 771 (1997).
8. For mere examples see, in the first school, Peter Hogg & Allison Bushell, “The Charter Dialogue between Courts and Legislators (Or Perhaps the Charter of Rights Isn’t a Bad Thing after All)” (1997) 35 Osgoode Hall LJ 75 at 79; Christine Bateup, “The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue” (2006) 71 Brook L Rev 1109; Margit Cohn, “Sovereignty, Constitutional Dialogue and Political Networks” in Richard Rawlings, Peter Leyland & Alison Young eds, Sovereignty and the Law: Domestic, European and International Perspectives (Oxford: Oxford University Press, 2013) at 236. For the second school, which can be subdivided into arguments for deference and to arguments for weak forms of review, see, e.g., Aileen Kavanagh, “Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication” in G Huscroft, ed, Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008) at 184; Alison L Young, “In Defence of Due Deference” (2009) 72 Mod L Rev 554; Stephen Gardbaum, “Reassessing the New Model of Commonwealth Constitutionalism” (2010) 8 Int’l J Const L (I.CON) 167. For the third school see Alon Harel & Adam Shinar, “Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review” (2012) 10 Int’l J Const L (I.CON) 950.
9. See, e.g., Wilson, Woodrow, Constitutional Government in the United States (New York: Columbia University Press, 1908);Google Scholar We the People, supra note 6.
10. Zadeh, Lotfi A, Fuzzy Sets and Applications: Selected Papers (New York: Wiley, 1987).Google Scholar
11. Scott Kelso, JA & Engstrøm, David A, The Complementary Nature (Cambridge: MIT Press, 2006).Google Scholar For condensed representations see ibid at 36-37, 257-62 (law is still missing in the latter longer list; several pairs pertaining to politics are listed, none are directly relevant). I thank Oren Perez for directing me to this source.
12. Ibid at 64.
13. Ibid at 63.
14. Books in Print, Global Edition, www.booksinprint.com (advanced search, “presidency” as keyword in title, a “United States” keyword in subject; accessed May 10 2016). Including forthcoming and out-of-print books, the number of books rises to 4,935. Deletion of the term “United States” in the search produces 12,686 results (“presidency” as keyword in title). In addition to a dedicated journal, Presidential Studies, see George C Edwards III & William G Howell, eds, The Oxford Handbook of the American Presidency (Oxford: Oxford University Press, 2009). Several law journal issues are dedicated to the presidency; among those published in the past decade are “Presidential Power in the Twenty-First Century: Symposium” (2009) 45 Willamette L Rev 395-722; “Symposium: Presidential Power in the Obama Administration: Early Reflections” (2010) 26 Const Commentary 313-650; “Symposium: The Role of the President in the Twenty-First Century” (2008) 88 BUL Rev 321-575.
15. 1,612 published journal articles contain derivatives of the term “president” (presiden*) in their title and “United States” in their text. Search, Westlaw International, World Journals and Law Review library, accessed 5 January 2016.
16. For comparative research and edited country surveys see Paul Craig & Adam Tomkins, eds, The Executive and Public Law (Oxford: Oxford University Press, 2006) (surveying eleven systems); Helms, Ludger, Presidents, Prime Ministers and Chancellors (Houndmills, Basingstoke, Hampshire & New York: Palgrave Macmillan, 2005);CrossRefGoogle Scholar Poguntke, Thomas & Webb, Paul, eds, The Presidentialization of Politics (Oxford: Oxford University Press, 2005);CrossRefGoogle Scholar Rose, Richard & Suleiman, Ezra, eds, Presidents and Prime Ministers (Washington, DC: American Enterprise Institute for Public Policy Research, 1981).Google Scholar
17. The Decline and Fall, supra note 1 at 4 (arguing that the current state of the American republic is far removed from any version of original intent, one that replaces balance of powers with a form of “executive constitutionalism,” under which presidential legitimacy relies on personal charisma, the media, public opinion polls, unilateral decision-making, all supported by legal advice generated from the presidential “branch”).
18. Posner & Vermeule, supra note 2.
19. Tribe, Laurence H, American Constitutional Law, 3rd ed (New York: Foundation Press, 2000) at 630.Google Scholar
20. Ibid at 631.
21. Henry P Monaghan, “The Protective Power of the Presidency” (1993) 93 Colum L Rev 1 at 5; Tribe, supra note 19 at 630. See also, e.g., Martin S Flaherty, “The Most Dangerous Branch” (1996) 105 Yale LJ 1725 (addressing the tension between the rise of executive power and its uneasy relationship with the principle of the separation of powers); Saikrishna Prakash, “The Essential Meaning of Executive Power” (2003) U Ill L Rev 701 at 706 and passim (positing “two narrow conceptions of the executive power,” the “non-executive” thesis, under which the constitution does not empower the president to control federal law execution, and the “chief overseer” thesis, which recognizes the exercise of influence and monitoring powers, but no authority to execute laws or direct agencies, with the “chief executive” thesis, under which the Executive Power Clause “vests the president with control over federal law execution”); Saikrishna Bangalore Prakash, “Imperial and Imperiled: The Curious State of the Executive” (2009) 50 Wm & Mary L Rev 1021; Peter L Strauss, “‘Overseer’, or ‘The Decider’? The President in Administrative Law” (2007) 75 Geo Wash L Rev 696. Further, “Puzzles” are sometimes found in analyses of the regulatory state, an aspect that I cannot address in full due to space constraints. Suffice to note that the arguments on the rise of independent agencies, as a “fourth branch of government” that challenges the dominance of the executive, emphasize the strong potential, often achieved, of political and legal dominance of the executive branch over agencies, be they formally independent or structurally part of the government. For this issue see, e.g., Peter Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” (1984) 84 Colum L Rev 573; Giandomenico Majone, “The Regulatory State and Its Legitimacy Problems” (1999) 22(1) West Eur Pol; Elena Kagan, “Presidential Administration” (2001) 114 Harv L Rev 2245 at 2246); Adrian Vermeule, “Conventions of Agency Independence” (2013) 113 Colum L Rev 1163; and Free Enterprise Fund v Public Company Accounting Board, 561 US 477 (2010), 130 S Ct 3138 at 3151-63, 3148 (citing the parties’ agreement that the Board was “part of government” for constitutional purposes).
22. See, e.g., Cronin, Thomas E & Genovese, Michael E, The Paradoxes of the American Presidency (New York: Oxford University Press, 1998) at vii,Google Scholar 4 and passim (the presidency’s “unusual character” “defies simple explanation”, being a “dynamic, variable, and often a contradictory office”; moving to define nine “paradoxes”, or pairs of concurrent contradictory propositions, which characterize the presidency, the last being the paradox that “[t]he presidency is sometimes too strong yet at other times too weak”); Hugh Heclo, Studying the Presidency: A Report to the Ford Foundation (New York: Ford Foundation Press, 1977) at 30, cited in William G Howell, “Quantitative Approaches to Studying the Presidency” in Presidency Handbook, supra note 14 at 9, 10; Harvey C Mansfield, Jr, Taming the Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989) at 29 (noting that “[n]ot a single political scientist whose work I know reflects upon the meaning of the word ‘executive’”). In 2009, Heclo still lamented the dearth of “larger picture” study, which turns to “the constitutional-institutional perspective.” Hugh Heclo, “Whose Presidency is This Anyway?” In Presidency Handbook, supra note 14, 770 at 782.
23. On the double meaning of the term, see Richard Pious, “Inherent War and Executive Powers and Prerogative Politics” (2007) 37 Pres Stud Q 66 at 71 (the term “president” has two separate connotations, presider and executive officer; likewise, the term “executive power” may denote either the power to make decisions and set events in motion, or “the power to administer that which already has been decided by others”). See also Tom CW Lin, “CEOS and Presidents” (2014) 47 UC Davis L Rev 1351.
24. Compare, e.g., President Obama’s political ability to pass reforms through Congress during the 111th, 112th and 114th Congresses. President Obama enjoyed a majority in both houses of the 111th Congress. Hence, inter alia, the passing of the health-care reform law. Although the process was far from easy, with opposition within the Democratic Party not only lengthening the process, but also transforming some of its elements, when compared to the trials the President has encountered in the current Congress, this reform practically sailed through. Four major policy crises represent the hardships facing a president who has lost the majority in one of the houses of Congress. All were resolved at the eleventh hour, or beyond, by compromising on the original programs: the passage of the six-month 2011 federal budget, the increase of the nation’s public debt, the “fiscal cliff” near-debacle, and the resolution of the October 2013 government shutdown (on these events see Sheryl Gay Stolberg & Robert Pear, “Obama Signs Health Care Overhaul Bill, with a Flourish”, NY Times (23 March 2010); Carl Hulse, “Budget Deal to Cut $38 Billion Averts Shutdown”, NY Times (8 April 2011); Jennifer Steinhauer, “Divided House Passes Tax Deal in End to Latest Fiscal Standoff”, NY Times (1 January 2013); Jonathan Weisman, “Republicans Back Down, Ending Crisis over Shutdown and Debt Limit”, NY Times (16 October 2013). Throughout, and more so during the current two-house Republican Congress, President Obama’s extensive reliance on unilateral measures (executive orders, memoranda and policy statements) presents yet another twist on the complexity of power politics. See Daryl J Levinson and Richard H Pildes, “Separation of Parties, not Powers” (2006) 119 Harv L Rev 1, and Stephen Gardbaum, “Political Powers, Voting Systems, and the Separation of Powers” 2017 Am J Comp Law [forthcoming] (pointing, on a comparative basis, that party representation and politics in legislatures should be considered in assessments of interbranch dynamics in all regime types). On the use of veto-player analysis in comparing regime types see, e.g., George Tsebelis, “Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentrism, Multicameralism and Multipartyism” (1995) 25 Brit J Poli Sci 289; for a recent analysis of presidential reliance on unilateral measures see Kenneth Lowande, “After the Orders: Presidential Memoranda and Unilateral Action” (2014) 44(4) Pres Stud Q 724.
25. See Rhodes, RAW, “Blair and Governance” in Koch, Rainer & Dixon, John, eds, Public Governance and Leadership (Wiesbaden: DUV, 2007) 95 at 96.CrossRefGoogle Scholar See also Foley, Michael, The British Presidency: Tony Blair and the Politics of Public Leadership (Manchester: Manchester University Press, 2000).Google Scholar Allen, Graham, The Last Prime Minister: Being Honest About the UK Presidency, 2nd ed (Exeter: Imprint Academic, 2002);Google ScholarThe Presidentialization of Politics, supra note 16.
26. See, e.g., Giandomenico Majone, “The Regulatory State and Its Legitimacy Problems” (1999) 22(1) West Eur Pol 1; Giandomenico Majone, “The Rise of the Regulatory State in Europe” (1994) 17(3) West Eur Pol 77.
27. See, e.g., Jacint Jordana, David Levi-Faur & Xavier Fernández i Marín, “The Global Diffusion of Regulatory Agencies: Channels of Transfer and Stages of Diffusion” (2011) 44 Comp Pol Stud 1343.
28. See, e.g., Strauss, “The Place of Agencies,” supra note 21; “Symposium, The Uneasy Constitutional Status of the Administrative Agencies” (1986) 36 Am U L Rev 277-601.
29. Elena Kagan, “Presidential Administration” (2001) 114 Harv L Rev 2245 at 2246. For a nuanced recent view of the role of unwritten conventions or understandings as determinants of agency independence, which does not challenge the assumption of presidential dominance, see Vermeule, “Conventions,” supra note 21.
30. See, e.g., Susan Bartlett Foote, “Independent Agencies under Attack: A Skeptical View of the Importance of the Debate” (1988) 1988 Duke LJ 223, and, generally, “Symposium, The Independence of Independent Agencies” (1988) 1988 Duke LJ 215-99.
31. See Lebron v Nat’l Railroad Passenger Corp, 513 US 374 (1995) (AMTRAK, created by law as a federal corporation to further governmental objectives, was part of the government for the purposes of the First Amendment); Free Enterprise Fund v Public Company Accounting Board, 561 US 477 at 419-513 (2010) (relying on the parties’ agreement that the PCAOB was “part of government” for constitutional purposes).
32. This does not mean that modern democratic constitutions cannot advance alternative formal structures. The Constitution of the Fifth French Republic formally grants the executive a residual power to legislate in areas not delineated in the Constitution. The extent to which the Conseil Constitutionnel can prevent statutes from entering ‘forbidden’ areas is a matter of debate, but the emerging practice tends towards the more traditional allocation of powers, under which the legislature has the upper hand. For the main stepping stones see CC 82-143, 30 July 1982, Blocage des prix et revenus, Rec 57; CC 05-512, 21 April 2005, Loi d’orientation et de programme pour l’avenir de l’école, Rec 72; CC 2012-649 DC 15 March 2012, Simplification du droit, Rec 142.
33. Aristotle recognized “three elements,” or “powers,” in each “constitution,” referring to “the deliberative element, the element of the magistracies, and the judicial element” (The Politics, 1297b-1298a, Barker edition). See also Marsilius of Padua’s fourteenth century recognition of similar government functions (still stressing the convergence of all functions in the hands of one absolute ruler). Marsilius of Padua, The Defender of the Peace, translated by Alan Gewirth (New York: Columbia University Press, 1956) at 61-62.
34. Baron de Montesquieu, The Spirit of the Laws, translated by Thomas Nugent (New York: Hafner, 1949) bk XI, ch 6. See also, generally, Maurice JC Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967) at 76-97. But see John Locke, Two Treatises of Government, ed by Peter Laslett (Cambridge: Cambridge University Press, 1960) bk II, § 143 (concerned only with the separation between the legislature and the executive).
35. Vile, supra note 34 at 13.
36. See, e.g., Vile, ibid at 53-75; Bruce Ackerman, “The New Separation of Powers” (2000) 113 Harv L Rev 634; David Samuels, “Separation of Powers” in Carles Boix & Susan C Stokes eds, The Oxford Handbook of Comparative Politics (Oxford: Oxford University Press, 2007) at 703.
37. The Federalist at Nos. 47, 48, 51. The idea is also expressed in Montesquieu’s call that “power should be a check to power” in order to prevent abuse. Ibid, bk XI, ch 4. On the basis of this and other parts of the work, Eisenmann claimed that Montesquieu never preached for separation, rather against concentration of power in one pair of hands. Charles Eisenmann, “L’Esprit des Lois et la séparation de pouvoirs” in Christian Pfister et al, eds, Mélanges Carré de Malberg (Paris : Sirey, 1933) at 165. But see William Gwyn, The Meaning of the Separation of Powers (New Orleans: Tulane University, 1965) at 104 (arguing Montesquieu expounded a doctrine of separation). See also William B Gwyn, “The Indeterminacy of the Separation of Powers in the Age of the Framers” (1988) 30 Wm & Mary L Rev 263; Mansfield, supra note 22 at 260-64; Flaherty, supra note 21 at 1802-10; Vile, supra note 34 at 120-21, 153-62.
38. See infra note 50.
39. Olufemi Taiwo, “The Rule of Law: The New Leviathan?” (1999) 12 Can JL & Juris 151 at 152. For further examples of the rich body of research see Brian Z Tamanaha, On The Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004); Jørgen Møller & Sven-Erik Skaaning, The Rule of Law: Definitions, Measures, Patterns and Causes (Houndmills, Basingstoke, Hampshire & New York: Palgrave Macmillan, 2014).
40. AV Dicey, Introduction to the study of the law of the constitution, 8th ed (London: Macmillan, 1915) at 110.
41. Ibid at 110-21.
42. Ibid, e.g., at 282.
43. For an overview see, e.g., AW Bradley & KD Ewing, Constitutional and Administrative Law, 15th ed (Harlow: Pearson Longman, 2011) at 246-54.
44. Dicey, supra note 40 at 110.
45. For the classics see Kenneth Culp Davis, Discretionary Justice: A Preliminary Enquiry (Baton Rouge: Louisiana State University Press, 1969) at 4; Denis J Galligan, Discretionary Powers (Oxford: Clarendon Press, 1986) at 1, 7.
46. Schlesinger, Arthur M Jr, The Imperial Presidency (Boston: Houghton Mifflin, 1974).Google Scholar
47. See Alexander Hamilton, The Federalist Nos. 70, 73; for the 1793 debate over President George Washington’s Declaration of Neutrality see A Hamilton (Pacificus) and J Madison (Helvidius), Letters of Pacificus and Helvidius on the Declaration of Neutrality (Washington, DC: Gideon, 1845).
48. Lin, supra note 23.
49. See, e.g., Calabresi, Steven G & Yoo, Christopher S, The Unitary Executive: Presidential Power from Washington to Bush (New Haven: Yale University Press, 2008) (the outcome of a series of journal articles);CrossRefGoogle Scholar Steven G Calabresi & Saikrishna B Prakash, “The President’s Power to Execute the Laws” (1994) 104 Yale LJ 541; But see Lawrence Lessig & Cass R Sunstein, “The President and the Administration” (1994), 94 Colum L Rev 1, 12-84 (refuting the reliance on history as basis for current unitarian theory).
50. The central contributions include Steven G Calabresi & Kevin H Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary” (1992) 105 Harv L Rev 1155; Calabresi & Prakash, supra note 49 at 559-99.
51. Article I vesting clause (“[a]ll legislative powers herein granted shall be vested in a Congress of the United States”) and Article III’s vesting clause (“[t]he judicial power shall extend to”…) both precede a closed list of powers, while Article II’s vesting clause (“[t]he executive power shall be vested in a President of the United States of America”) that may be interpreted as an open list, leading to a fierce debate over the constitutional legitimacy of “non-enumerated powers.” See, e.g., Steven G Calabresi, “The Vesting Clauses as Power Grants” (1994) 88 Nw UL Rev 1377; Calabresi & Rhodes, supra note 50 at 1171-208; Calabresi & Prakash, supra note 49 at 570-79.
52. For contributions that focus on this clause see, e.g., David J Barron & Martin S Lederman, “The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding” (2008) 121 Harv L Rev 689 at 941; Brian Logan Beirne, “George vs. George vs. George: Commander-in-Chief Power” (2007) 26 Yale L & Pol’y Rev 265. This position attracted strong criticism, notably in John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (Princeton: Princeton University Press, 1995). See also Ingrid Brunk Wierth, “International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered” (2007) 106 Mich L Rev 61 (drawing on international law); David Luban, “On the Commander-in-Chief Power” (2007) 81 S Cal L Rev 478 (taking a philosophical and historical stance).
53. See, e.g., Calabresi & Prakash, supra note 49 at 616-22; Lessig & Sunstein, supra note 49 at 61-70.
54. Justice Sutherland’s recognition of the President’s war and foreign affairs powers drew on the nature of the United States “as a member of the family of nations” and the argument that “the President alone has the power to speak or listen as a representative of the nation” (US v Curtiss-Wright, 299 US 304 at 318 (1936)). See, e.g., David M Levitan, “The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory” (1946) 55 Yale LJ 467. On non-statutory, inherent based executive powers see, e.g., Louis Fisher, “Invoking Inherent Powers: A Primer” (2007) 37 Pres Stud Q 1 (opening a special issue titled Invoking Inherent Presidential Powers); Monaghan, supra note 21. For analysis of war powers and the stewardship theory see infra note 71.
55. United States v Midwest Oil, 236 US 459 (1915) (recognition of the legality of executive orders issued for the withdrawal of mineral-rich public lands from private access “dates from an early period” and found “known to Congress, as principal, and not in a single instance was the act of the agent disapproved. Its acquiescence all the more readily operated as an implied grant of power in view of the fact that its exercise was not only useful to the public, but did not interfere with any vested right of the citizen”).
56. Youngstown Sheet and Tube v Sawyer, 343 US 579 at 637 (1952).
57. Ibid at 637.
58. Ibid at 610-11. See also Dames & Moore v Regan, 453 US 654 at 678-83 (1981) (executive order suspending claims following the settling of the Iran hostage crisis found to be “implicitly approved” by the linked statutes and by the history of Congressional acquiescence); “[w]e cannot ignore the general tenor of Congress’ legislation in this area … Congress cannot anticipate and legislate with regard to every possible action the President may find necessary to take.” Congressional failure to specifically delegate authority does not, “especially… in the areas of foreign policy and national security,” imply “congressional disapproval” of action taken by the executive”). See, generally, Curtis A Bradley & Trevor W Morrison, “Historical Gloss and the Separation of Powers” (2012) 126 Harv L Rev 411.
59. Posner & Vermeule, supra note 2 at 4 and passim.
60. Ibid at 5 and passim. For other structural-institutional analyses see, e.g., William P Marshall, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters” (2008) 88 BUL Rev 505 (considering the “constitutional imbalance” between Congress and the President). Some unitarians have offered structural analyses (most salient is Steven G Calabresi, “Some Normative Arguments for the Unitary Executive” (1995) 48 Ark L Rev 23 at 58-70), yet their general focus remains on text and history (see further note 50).
61. Neustadt, Richard E, Presidential Power: the Politics of Leadership (New York: Wiley, Free Press, 1960, 1990).Google Scholar
62. For mere examples see Hargrove, Erwin C, Presidential Leadership: Personality and Political Style (New York: Macmillan, 1966);Google Scholar Rockman, Bert A, The Leadership Question: The Presidency and the American System (New York: Prager, 1984);Google Scholar Edwards, George C III, Overreach: Leadership in the Obama Presidency (Princeton: Princeton University Press, 2012).Google Scholar For an overview see George C Edwards III, “The Study of Presidential Leadership” in Presidency Handbook, supra note 14 at 816. For one of the most vociferous critiques, see Terry M Moe, “Presidents, Institutions, and Theory” in George C Edwards III, John H Kessel & Bert A Rockman, eds, Researching the Presidency: Vital Questions, New Approaches (Pittsburgh: Pittsburgh University Press, 1993) at 337.
63. Moe, supra note 62 at 362-76. See also Terry M Moe & Scott A Wilson, “Presidents and the Politics of Structure” (1994) 57(2) L & Contemp Probs 1 at 20-28.
64. For recent fusion between personality and structure analyses, see Stephen Skowronek, Presidential Leadership in Political Time: Reprise and Reappraisal (Lawrence, Kan: University Press of Kansas, 2008); Matthew J Dickinson, “We All Want a Revolution: Neustadt, New Institutionalism, and the Future of Presidency Research” (2009) 39 Pres Stud Q 736.
65. For the UK see supra note 25; for Europe see, generally, Gianfranco Pasquino, “Governments in European Politics” in José M Magone, ed, Routledge Handbook of European Politics (Abingdon: Routledge, 2015) 295 at 306-07.
66. Posner & Vermeule, supra note 2, inter alia at 32-34.
67. Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty, translated by Schwab, George (Cambridge: MIT Press, 1985) at 5.Google Scholar
68. Schlesinger, supra note 46. For a reassessment that considers subsequent events, see Andrew Rudalevige, The New Imperial Presidency: Reviewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2005).
69. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Westport: Greenwood Press, 1948); Mary Sieghart, Government by Decree (London: Stevens, 1950).
70. For an overview, see Jonathan Canfield, “The Torture Memos: The Conflict between a Shift in U.S. Policy towards a Condemnation of Human Rights and International Prohibitions against the Use of Torture” (2005) 33 Hofstra L Rev 1049 at 1050-55. For a compilation of released memos and other documents concerning post 9/11 government measures, see ACLU, Torture Database at https://www.thetorturedatabase.org/search/apachesolr_search (last visited May 8 2016). See also John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005); John Yoo, Crisis and Command (New York: Kaplan, 2009).
71. On the “stewardship” theory, see Theodore Roosevelt, An Autobiography (New York: Macmillan, 1914) at 372 (“My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws”). Justice Sutherland’s recognition of the President’s inherent powers focused on war in addition to foreign affairs. See Curtiss-Wright, supra note 54.
72. Youngstown, supra note 56. The case involved a challenge against a Presidential Executive Order to seize a steel factory during the Korean War, after a strike that effectively shut down the factory. The majority of justices did rule that the seizure was unlawful, since legislation in force granted powers to confront industrial action. Alongside the two justices who rejected all non-statutory emergency power, the other three justices on the majority were ready to accept circumstances in which presidents could invoke powers that extended beyond the existing legislation, effectively joining the three minority judges. Justice Clark, for example, asserted that “the Constitution does grant the President extensive authority in times of grave danger and imperative national emergency… In describing this authority I care not whether one calls it “residual,” “inherent,” “moral,” “implied,” “aggregate,” “emergency” or otherwise” (ibid at 661). The case cannot thus be cited as proscribing invocation of such powers, notwithstanding substantive differences between the judges that were ready to uphold non-statutory emergency powers. On the decision see, e.g., Edward S Corwin, “The Steel Seizure Case: A Judicial Brick without Straw” (1953) 53 Colum L Rev 53; “Youngstown at Fifty: A Symposium” (2002) 19 Const Commentary 1.
73. See, e.g., David P Currie, “The Civil War Congress” (2006) 73 U Chicago L Rev 1131; Andrew Kent, “The Constitution and the Laws of War during the Civil War” (2010) 85 Notre Dame L Rev 1839 (focusing on Congress and on the courts, respectively).
74. The term “executive agreement” encompasses three types of transnational agreements: agreements made by the president under statutory authorization, agreements authorized by both Houses of Congress after signature; and purely sole agreements, made by the president in the absence of any congressional participation. For analysis see, e.g., Oona A Hathaway, “Presidential Power over International Law: Restoring the Balance” (2008) 119 Yale LJ 140 at 144 n 4. Decisions that upheld executive agreements include US v Belmont, 301 US 324 (1937); US v Pink, 315 US 203 (1942); Dames and Moore v Regan, 453 US 654 (1984).
75. For decisions on challenges to the legality of the Vietnam War see Berk v Laird, 317 F Supp 715 (NY DC 1970); Orlando v Laird, 443 F 2d 1039 (2d Circuit, 1971); Massachusetts v Laird, 451 F (2d) 26 (1st Circuit, 1971) (all three addressed the arguments but rejected the applications under the political question doctrine). For later applications concerned with other uses of military force, summarily rejected, see, e.g., Crockett v Reagan, 720 F (2d) 1355 (CA DC 1983) (cert den); Sanchez-Espinoza v Reagan, 770 F (2d) 202 (CA DC 1985); Lowry v Reagan, 676 F Supp 333 (DDC 1987); Ange v Bush, 752 F Supp 509 (DDC 1990); Doe v Bush, 323 F (3d) 133 (1st Circ 2003) (the latter decided on ripeness).
76. See, e.g., Jules Lobel, “Emergency Power and the Decline of Liberalism” (1989) 98 Yale LJ 1385 at 1400 note 68; Oren Gross, “Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?” (2003) 112 Yale LJ 1011; Kim Lane Scheppele, “Law in Time of Emergencies: States of Exception and the Temptation of 9/11” (2004) 6 U Pa J Const L 1001. See further text below at notes 83-88.
77. Posner & Vermeule, supra note 2 at 4 and passim.
78. Richard H Pildes, “Law and the President” (2012) 125 Harv L Rev 1381. Support of this argument can be found, for example, in analyses of the “regulatory style” of the U.S., defined as “adversarial legalist.” See Robert A Kagan, Adversarial Legalism: The American Way of Law (Cambridge: Harvard University Press, 2003). On the normative level, the vision of “the executive as manager,” either as CEO or actor-in-the-last-resort, is as problematic as the “executive as executor” model, but for entirely different reasons. As long as it is divorced from, or only loosely attached to, the concepts of legality and the rule of law, its legitimacy is highly questionable. All modern Western constitutions, even in their “thinnest” varieties, retain a link with legality. In sum, an argument that cancels the force of this value, in the context of the democratic liberal sphere, is a gross misrepresentation of Western political cultures. For a forceful argument in this vein see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006).
79. Mansfield, supra note 22 at 15.
80. Louis W Koenig, “The Modern Presidency and the Constitution” in Martin Fausold & Alan Shank, eds, The Constitution and the American Presidency (Albany: State University of New York Press, 1991) 171 at 191-93; Theodore J Lowi, “Afterword: Presidential Power and the Ideological Struggle Over Its Interpretation” in ibid 227 at 236-37.
81. Mueller, Dennis C, Constitutional Democracy (New York: Oxford University Press, 1996) at 235.Google Scholar
82. Hearings Before the Senate Special Comm on the Termination of the National Emergency, 93rd Cong, 1st Sess 83 (testimony of Professor G Casper), cited in Lobel, supra note 76 at 1400 note 68.
83. Lobel, supra note 76 at 1402, 1403 [footnote omitted]. See also Jules Lobel, “The War on Terrorism and Civil Liberties” (2001) 63 U Pitt L Rev 767 at 770-78 (linking twentieth century history with the current war on terrorism).
84. Scheppele, supra note 76 at 836, 839.
85. Posner & Vermeule, supra note 2 at 31-32.
86. See, e.g., Nicole Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN ESCOR, 35th Sess, Agenda Item 10, UN Doc E/CN.4/Sub.2/1982/15 (1982).
87. Gross, Oren & Aoláin, Fionnuala Ní, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006) at 171–243;CrossRefGoogle Scholar Gross, supra note 76 at 1069-96.
88. Loughlin, Martin, “The Pathways of Public Law Scholarship” in Wilson, Geoffrey P, ed, Frontiers of Legal Scholarship (New York: Wiley, 1995) at 184 [spelling follows the original].Google Scholar
89. These theories cannot be addressed here in detail. For neo-pluralist and network theories see, e.g., Dahl, Robert A & Lindblom, Charles E, Politics, Economics, and Welfare (New York: Harper, 1963);Google Scholar Marsh, David & Rhodes, RAW, Policy Networks in British Government (Oxford: Clarendon Press, 1992).CrossRefGoogle Scholar
90. A full analysis of the different permutations of the term is unnecessary here. Consider some classic, more formalist versions: Hayek, Friedrich L, The Road to Serfdom (Chicago: University of Chicago Press, 1949) at 54;Google Scholar Fuller, Lon L, The Morality of Law, revised ed (New Haven: Yale University Press, 1969) at 39 and passim;Google Scholar Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979) at 210.Google Scholar
91. Dyzenhaus, supra note 78 at 3.
92. Ibid, e.g., at 205, 210.
93. Above, text at notes 54-58.
94. On the nature of executive agreements see supra note 74. A study of 3119 of agreements made between 1980 and 2000 finds that only 375 (12%) were Article II treaties: Oona Hathaway, “Treaties’ End: The Past, Present and Future of International Lawmaking in the United States” (2008) 117 Yale LJ 1236 at 1258, 1260. For two examples of the research, the first early, the latter relatively recent, see John Bassett Moore, “Treaties and Executive Agreements” (1905) 20 Poli Sci Q 385; John Yoo, “Rational Treaties: Article II, Congressional-Executive Agreements and International Bargaining” (2011) 97 Cornell L Rev 1 at 1-11.
95. See, e.g., in addition to the literature cited supra note 45, the already classic quantitative political studies work on discretion: David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers (New York: Cambridge University Press, 1999); John D Huber & Charles A Shipan, Deliberate Discretion? The Institutional Foundations of Bureaucratic Autonomy (New York: Cambridge University Press, 2002).
96. Questiaux, supra note 86 at 29.
97. Gross, supra note 76 at 1032.
98. Hawkins, Keith, Environment and Enforcement (Oxford: Clarendon Press, 1984) at 198–207.Google Scholar See also Bardach, Eugene & Kagan, Robert A, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982).Google Scholar
99. Ayres, Ian & Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992) at 19–53.Google Scholar
100. Hawkins notes that employing sanctions and other statutory powers selectively was viewed, at least by the regulators, as promoting the efficiency of regulatory action as well as its social legitimacy by better conforming with social conceptions of justice. Hawkins, supra note 98 at ch 19. Bardach and Kagan’s “good inspector” employs responsive and flexible methods instead of tough “legalistic” ones. Bardach & Kagan, supra note 98 at 123-51 and passim.
101. Matthew D McCubbins, Roger G Noll & Barry R Weingast, “Administrative Procedures as Instruments of Policy Control” (1987) 3(2) JL Econ & Org 243 at 273.
102. James T Hamilton & Christopher H Schroeder, “Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs Informal Rules in Regulating Hazardous Waste” (1994) 57 L & Contemp Probs 111.