115 Yale L.J. 2416 (2006)

Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branches because it can respond faster to perceived emergencies. Congress is hampered more than the executive by gridlock caused by special-interest group pressures when it tries to act quickly. The legislative process is also inherently slower than the executive process because the executive can launch into unilateral action, as by filing a lawsuit. The executive's structural advantage over the judiciary is even more complete than its advantage over Congress because the judiciary has no power to initiate action. Executive action, particularly that of agencies, determines the course of law. This Essay argues that the ascendancy of the executive branch in policymaking is an unintended consequence of the modern administrative state. The emergence of the executive as the fulcrum of power within the administrative state upsets the traditional balance of powers among the three branches of government. This imbalance can be counteracted only by a concerted effort by the federal judiciary to rein in executive power that improperly usurps Congress's authority to make law.

115 Yale L.J. 2512 (2006)

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we ask which war powers system would best enhance the effectiveness of the United States in making decisions about war and peace? First, we suggest that the argument that a Congress-first approach will have clear political accountability and accuracy advantages over a President-first approach rests on questionable empirical and theoretical assumptions. Second, we turn to the international dimension and draw on one of the few facts considered to be close to an empirical truth in international relations: Democracies do not tend to go to war with each other. Here, we explore the relationship between the regime type of the adversary and the war powers system best suited to combating it. We argue that if the United States were involved in a dispute with another democracy, involving Congress could help facilitate a peaceful resolution by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a nondemocracy or a terrorist organization, a unilateral presidential approach would make more sense because such an opponent is less likely to have the proper incentives to respond to the signal conveyed by congressional participation. Finally, we conclude that only an approach that vests exclusively in the President the discretion to seek ex ante congressional authorization would permit the United States to adapt its domestic decision-making structure to the exogenous demands of the international system.

115 Yale L.J. 2580 (2006)

Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, the most cited case in modern public law. Chevron is not merely a counter-Marbury for the executive branch, but also the Erie Railroad Co. v. Tompkins of the last half-century. It reflects a salutary appreciation of the fact that the law's meaning is not a "brooding omnipresence in the sky"--and that the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. The principal qualification has to do with certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.

 

Read Professor Sunstein's Debate with Professor Peter L. Strauss

115 Yale L.J. 2623 (2006)