The Passport Case is not about the power of recognition, but about whether Congress has any say in how it uses its enumerated foreign affairs powers. If Congress were to declare war on Vietnam, could the president also attack a city in Laos, saying in his book, it is in Vietnam and Congress can’t tell him otherwise?
Archive | Separation of Powers
Brief Review of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy
This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest […]
Is Concern about “Czars” Purely a Partisan Issue?
Quite a few commenters responded to my post about President Obama’s use of high-level appointees not subject to Senate confirmation, colloquially known as “czars,” with some version of the claim that the whole issue is a purely partisan attempt by right-wing Republicans to attack the president. It’s therefore worth pointing out that to their credit, […]
Can the President Spend Money on Something Congress “Defunds”?
I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be […]
Resolved: President Obama’s Recent Purported “Recess” Appointments Were Unconstitutional
By Nick Rosenkranz on January 9, 2014 12:01 am in Constitutional Law, Recess Appointments, Separation of Powers
Professor Victor Williams and I will debate at the Cato Institute tomorrow. Information here, and live video, Friday at noon, here.
Zachary Price on the Constitution and Enforcement Discretion
People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention […]
Judge Rejects Immediate Appeal in Fast and Furious Document Case
Last month, Judge Amy Berman Jackson denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal. Today, Judge Jackson rebuffed the Justice Department again, refusing to certify her decision for an immediate appeal. According to Judge […]
The Constitutionality of the ObamaCare “Fix”
By Eugene Kontorovich on November 14, 2013 1:25 pm in Congress, Constitutional Law, Executive Branch, Health Care, Obama, Separation of Powers, Uncategorized
President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.” It is true […]
James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail
The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its […]
Judge Denies DoJ Motion to Dismiss Case Seeking “Fast and Furious” Documents
Yesterday, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal. The Justice Department has refused to turn over […]
Steven Teles on “Kludgeocracy” and the Role of Government in Society
By Ilya Somin on September 25, 2013 11:15 am in Federalism, Growth of Government, Political Ignorance, Public Opinion, Separation of Powers
In the fall issue of National Affairs, Johns Hopkins political scientist Steven Teles has an interesting article on what he dubs the problem of “kludgeocracy” in American government: In recent decades, American politics has been dominated, at least rhetorically, by a battle over the size of government. But that is not what the next few […]
A Hands-Tied Presidency?
By Jonathan H. Adler on September 8, 2013 9:26 am in Executive Branch, Separation of Powers, War and Armed Conflict
In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.” No, really. This is what he says. It is, frankly, a rather bizarre claim. As a great deal of academic work has documented (including an […]
Wall Street Journal Op-Ed: Two Presidents, Two Suspensions
By Nick Rosenkranz on August 17, 2013 8:48 am in Constitutional Law, Executive Branch, Habeas, Health Care, Obama, Presidency, Separation of Powers
My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different. The op-ed is […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
The Jerusalem Passport Case – Separation of Powers and Standing
By Eugene Kontorovich on July 23, 2013 12:31 pm in Constitutional Law, Israel, Separation of Powers, Standing
The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on […]