Canonical Cases and Other Quodlibets: A Response to Professor Fallon
97 Texas Law Review Online __ (Dec. 2018, Forthcoming)
12 Pages Posted: 6 Nov 2018
Date Written: October 30, 2018
In a far ranging 2018 article in Texas Law Review, Professor Fallon opines on the scope of the duty of subordinate Executive Branch officers to obey conflicting commands and policies emanating from the President and the federal courts, including the Supreme Court. The subject is not an easy one. It is a question which cannot be answered by turning exclusively to the past practices of executive officers during times of crisis and conflict—i.e., crises in the country and conflict between the branches of the federal government. Nor can it be answered by turning exclusively to the decisions of the courts. Still, those practices and decisions are important starting points for Fallon’s argument. I have some substantial (and long-standing) doubts about Fallon’s discussion of three well known, if not canonical, cases. My goal, then, is to explain why I think Fallon’s discussion of these cases is—wrong, and then to suggest what may follow from those errors.
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