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Prakash on Executive Power

By Lawrence Solum

Saikrishna Prakash (University of Virginia - School of Law) has posted Imperial and Imperiled: The Curious State of The Executive (William & Mary Law Review, Vol. 50) on SSRN. Here is the abstract:

In the last four decades, characterizations of the Presidency have careened from the ?imperial presidency? to the ?imperiled presidency.? From an originalist perspective, both camps have elements of truth on their side. When it comes to the conduct and initiation of wars, modern Presidents exercise powers that rival those the Crown possessed in England. Presidents claim the power to start wars, notwithstanding Congress?s power to declare war. Moreover, Presidents insist that they have the sole right to determine how the armed forces will wage all wars, even though Congress clearly has considerable power over the armed forces. Law execution provides a fascinating contrast. The original Constitution established a single chief executive, empowered to execute all federal laws through subordinate executive officers. Over the course of almost a century and a half, Congresses have splintered the President?s executive power, committing slivers of it to each of the numerous independent agencies. In other words, alongside the Constitution?s unitary executive, a number of independent executive councils have taken root. Hence the President is imperial in some respects and imperiled in others.

Full post as published by Legal Theory Blog on January 22, 2010 (boomark / email).