The Yale Law Journal

Separation of Powers

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

The Statutory Separation of Powers

Sharon B. Jacobs

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

Theodore T. Lee

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

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.  

 

Forum

Presidential Power to Terminate International Agreements

Harold Hongju Koh

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

E. Garrett West

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

McKaye Neumeister

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

Josh Chafetz

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

David Fontana

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 …