The Yale Law Journal

Executive Power

Forum

Manufactured Emergencies

Robert L. Tsai

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

Stephen I. Vladeck

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

Cecillia D. Wang

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

Secret Reason-Giving

Ashley S. Deeks

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 polic…

Note

Separation of Prosecutors

Leslie B. Arffa

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.  

 

Comment

Certification as Sabotage: Lessons from Guantánamo Bay

David Manners-Weber

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 co…

Forum

The Trump Administration and the Breakdown of Intra-Executive Legal Process

W. Neil Eggleston & Amanda Elbogen

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…