Presidential Whim

26 Pages Posted: 17 Apr 2020 Last revised: 4 Sep 2020

See all articles by Matthew J. Steilen

Matthew J. Steilen

State University of New York (SUNY) at Buffalo, Law School

Date Written: March 1, 2020

Abstract

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of "presidential whim." The best prospects for checking presidential whim and enforcing the vision of the presidency set out in the new legal literature is congressional regulation of delegated presidential power. For example, Congress could mandate by statute that the President engage in some form of interagency review before exercising powers delegated by statute. Congress could forbid the use of social media platforms like Twitter as a means of exercising statutory power. Statutory procedural requirements would then enable a more effective practice of judicial review of presidential action focused on procedural compliance. Courts could also develop a procedural version of non-delegation doctrine to restrict unstructured delegations of power to the President.

Keywords: President, presidential power, executive power, faithfulness, take care, judicial review, delegation

Suggested Citation

Steilen, Matthew J., Presidential Whim (March 1, 2020). University at Buffalo School of Law Legal Studies Research Paper No. 2019-015, Ohio North University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3557903

Matthew J. Steilen (Contact Author)

State University of New York (SUNY) at Buffalo, Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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