Executive Power in the U.S. Constitution: An Overview
30 Pages Posted: 12 Apr 2014 Last revised: 29 May 2014
Date Written: 2014
This is a draft of an essay to be published as a chapter in the forthcoming Oxford Handbook of the U.S. Constitution. Part I sets forth a methodology to address issues of executive power based in a historicist theory of constitutional change. Part II discusses what I take to be the central problem in the law of executive power -- to what extent can Congress regulate the president’s Article II powers? This problem is approached through the removal cases and the transition from Curtiss-Wright to Youngstown. Part III discusses presidential war powers and the War Powers Resolution by reviewing the argument of my recent book "Long Wars and the Constitution." Finally, Part IV considers issues at the outer limits of executive power, including the power to "disregard" or not enforce laws on the ground that they are unconstitutional, emergency power and "prerogative power." Part IV makes a new contribution to the debate on these topics by arguing that several key historical episodes thought to support presidential power in these respects, including the 1861 secession crisis and the impeachment of Andrew Johnson, have been misanalyzed. This revised version also features a different conclusion.
Keywords: executive power, presidential power, unitary executive, removal power, war powers, emergency power, prerogative power
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