Separation of Powers
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 …
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…
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…
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…
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.
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.
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…
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…
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…
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.
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.”
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…
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’…
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.
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 …