Taking Cues from Congress: Judicial Review, Congressional Authorization, and the Expansion of Presidential Power

36 Pages Posted: 4 Apr 2014 Last revised: 9 Jun 2015

See all articles by David H. Moore

David H. Moore

Brigham Young University - J. Reuben Clark Law School

Date Written: April 2, 2014

Abstract

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power — Justice Jackson’s tripartite framework and the historical gloss on executive power — congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.

Keywords: constitutional law, separation of powers, Youngstown, Jackson, president, presidential power, executive, executive power, delegation, foreign relations

Suggested Citation

Moore, David H., Taking Cues from Congress: Judicial Review, Congressional Authorization, and the Expansion of Presidential Power (April 2, 2014). 90 Notre Dame Law Review 1019 (2015), Available at SSRN: https://ssrn.com/abstract=2419657

David H. Moore (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

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Brigham Young University
Provo, UT 84602
United States
801-422-8549 (Phone)
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