New York University Public Law and Legal Theory Working Papers

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Article

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Harvard Law Review, Vol. 125, p. 1381, 2012

Abstract

This article explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints.

This article takes these claims on in empirical, theoretical, and cultural terms. Empirically, claims of legally unconstrained presidential power turn out to rest on thin evidence, rarely confront conflicting evidence; the empirical case is indeterminate and perhaps impossible Posner and Vermeule see presidents as Holmesians, not Hartians. Yet even if we enter their purely consequentialist world, in which presidents follow the law not out of any normative obligation or the more specific duty to faithfully execute the laws but only when the cost-benefit metric of compliance is more favorable than that of noncompliance, powerful reasons suggest that presidents will comply with law far more often than Posner and Vermeule imply.

In the area of presidential studies, the Posner and Vermeule approach is particularly fresh. For many decades, legal scholarship on presidential power was confined to assessing how much formal legal power the President should be understood to have, as a matter of the original understanding at the time of the Constitution’s adoption or subsequent legal and political practice. In other disciplines, scholarship on the presidency was heavily personality based — organized around studies of individual presidents, or case studies of particular episodes, or narrative accounts of how various presidents had, for example, used military force. But the greater emphasis in the social sciences in recent decades on institutional analysis has recently reached presidential studies, and an emerging series of works now seeks to analyze the presidency not through individual personalities but through the more systematic tools of empirical and theoretical analysis. Posner and Vermeule’s book, in its effort to theorize systematically about the actual (rather than formal) scope of presidential power, should be seen in this light.

Date of Authorship for this Version

5-2012

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