Executive Power
The Insidious War Powers Status Quo
This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.
War Powers Reform: A Skeptical View
Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reformists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.
Deciphering the Commander-in-Chief Clause
At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping authority over the military and its operations.
The Antimonopoly Presidency
This Note traces the separation of powers in U.S. antimonopoly law—a division of authority that arose after the National Industrial Recovery Act failed in 1935 and that the Biden Administration is attempting to reconfigure today. To succeed, a revived antimonopoly presidency must incorporate the lessons of the NIRA’s history.
The Adjudicative State
This Feature identifies a foundational problem in modern administrative law. It argues that the Supreme Court’s dual commitments to unitary executive theory and separation-of-powers literalism are in deep conflict when it comes to agency courts. Recognizing this conflict advances debates about how the Roberts Court is transforming the administrative state.
Introduction
Former Attorney General Eric Holder reflects on the Justice Department’s unique role in American society.
Stare Decisis in the Office of the Solicitor General
The Office of the Solicitor General (OSG) is generally believed to operate under its own form of stare decisis. But in many circumstances, OSG best serves governmental interests and those of the Supreme Court by submitting positions that it believes are right, even if they depart from prior submissions.
The Civil Rights Division: The Crown Jewel of the Justice Department
This Essay contrasts the recent history of the Civil Rights Division with the first decades of its existence, arguing that civil rights advocates today should do more than reverse the harms of the Trump years. Rather, advocates must leverage the Division’s institutional dynamics to ensure its effectiveness in coming years.
Thwarting the Separation of Powers in Interbranch Information Disputes
The Office of Legal Counsel (OLC) advises the President in information disputes with Congress. This Essay analyzes how OLC’s increasingly aggressive separation-of-powers advice, the Trump Administration’s utilization of OLC opinions to resist congressional information requests, and congressional acquiescence threaten separation-of-powers principles by exalting the executive branch at Congress’s expense.
Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old
How do the US Attorneys’ Offices restore their damaged credibility with the public? New laws and policies designed to preserve the independence of the Justice Department from politicization are much needed. But it will be even more important to rebuild public trust by reinforcing the culture of independence among prosecutors.
The Law of Presidential Transitions
Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks created by lawless transitions and offers several solutions to resolve them.
Ending Bogus Immigration Emergencies
Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would unload it.
Manufactured Emergencies
As America goes through a democratic decline, a new problem rears its head: the manufactured crisis. To stem further degradation of democratic norms, this Essay calls for judges to reject unjustified assertions of unilateral power by carefully reviewing facts and refusing to tolerate lies.
The Separation of National Security Powers: Lessons from the Second Congress
Can Congress reclaim a meaningful institutional role in supervising some of the broad national security powers it has delegated to the executive branch? This Essay argues that Congress can do so and explains how an obscure statute—the Calling Forth Act of 1792—provides a roadmap for how it should.
Secret Reason-Giving
The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and policy decision-making in the national security space.
Separation of Prosecutors
The decentralized structure of the federal criminal-justice system has generated significant criticism. This Note offers a novel explanation and defense of this structure, arguing that decentralization is a feature of congressional design, not a bug of congressional abdication.
Certification as Sabotage: Lessons from Guantánamo Bay
Through an analysis of two recent case studies, this Comment demonstrates how certifications—requirements that government officials personally attest to some proposition—can be effective checks on the executive branch. Using observations from political science and sociology, it also describes the conditions under which certifications can be most powerful.
The Trump Administration and the Breakdown of Intra-Executive Legal Process
In the first year of the Trump Administration, a breakdown of intra-executive internal norms and legal processes has led to a remarkable series of losses in the courts. This Essay argues that such a breakdown can substantially damage both the viability of an administration’s policy agenda and public confidence.