Forum

The Right to Amend State Constitutions

This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive …

Forum

De-judicialization Strategies

Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.…

Forum

Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina

Like many other state constitutions, the North Carolina Constitution contains unique provisions guaranteeing individual rights not present in the U.S. Constitution. This Essay explores the extent to which political and civil rights in the North Carolina Constitution have been enforced by the state s…

Forum

The “Bounds” of Moore: Pluralism and State Judicial Review

This Essay examines a potential version of the “independent state legislature theory” (ISLT) that, were it adopted, could require states to adopt particular interpretive methods for state laws regarding federal elections. That ISLT variant, however, has no basis in history, federalism, or democracy.

Forum

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 …

Forum

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.

Article

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 au…

Article

Separation-of-Powers Avoidance

Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside …

Feature

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 t…

Article

The Separation-of-Powers Counterrevolution

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in…

Article

Subordination and Separation of Powers

Liberty, accountability, and other values advanced by separation-of-powers tools such as the “power of the purse” come with real-world costs targeted at marginalized groups. Scholars and courts should account for such skewed impacts by including antisubordination among the values they consider in an…

Forum

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.

Forum

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. 

Forum

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 un…

Article

The Statutory Separation of Powers

Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations…

Comment

Building Political Will for Accountable, Equitable Trade Policy Making

Trade policy is at an inflection point. Because trade deals are often negotiated in secret and without congressional input, the public lacks the information necessary to hold the executive branch accountable. This Comment therefore proposes that Congress establish a nonpartisan, expert body to produ…

Note

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.  

Forum

Presidential Power to Terminate International Agreements

Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.” 

Note

Congressional Power over Office Creation

This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and tem…

Note

Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law

The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’…

Review

Multiplicity in Federalism and the Separation of Powers

120 Yale L.J. 1084 (2011). 

The Ideological Origins of American Federalism

By Allison L. Lacroix

Cambridge, MA: Harvard University Press, 19th ed., 2010, PP. 312. $35.00.

Article

Government in Opposition

119 Yale L.J. 548 (2009).

In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls “government in opposition.” After democratic elections are …