New York University Public Law and Legal Theory Working Papers

Document Type



Lewis & Clark Law Review, Vol. 12, 2008


This essay, presented as the Higgins Lecture at Lewis & Clark Law School, addresses the issue of the settlement of constitutional authority in areas where judicial intervention is unlikely. Prompted by debates over the constitutionality of congressional efforts to limit the "surge" of forces in Iraq, the question addressed is the development of constitutional division of authority between the President and Congress through the process of institutional accommodation. The essay places the debates over the surge in the context of other constitutional conflicts that also defined the roles of the political branches in areas relatively immune from judicial pronouncements.

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