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The article discusses a presumption of regularity in America's judicial review of the executive branch, and it mentions U.S. Supreme Court (Supreme Court) cases and a travel ban involving majority-Muslim nations which was issued by American President Donald Trump's Administration. According to the article, the Supreme Court has used the phrase presumption of regularity in 59 legal cases between 1900 and 2018. Presumptions involving prosecutors and administrative agencies are assessed.

Much has been written about George Washington as a presidential leader, but little attention has been given to one important aspect of the first president's administration: his role in funding and constructing the nation's new capital city in the District of Columbia. This article highlights Washington's involvement in the creation of the Federal City by focusing on the choices he faced and decisions he made regarding Washington, DC during the last six months he was in office and showing that in terms of this facet of his presidency, he was truly a hands-on leader. [ABSTRACT FROM AUTHOR]

The article discusses the concept of power in public law in relation to the history of the U.S. Supreme Court, and it mentions American constitutionalism and constraints in state power, as well as U.S. constitutional law. Presidential (executive) power, federalism, and a separation of powers doctrine are examined, as well as the U.S. Congress' powers and the efforts to create a constitutional balance in America. Government institutions and constitutional structure are assessed.

The article discusses the U.S. President's duty to faithfully execute the laws of the nation as of 2016, and it mentions America's separation of powers doctrine, executive power under Article II of the U.S. Constitution, and various interpretations of the presidential execution duty throughout history. American constitutional law is assessed, along with U.S. President Barack Obama's views and those of several ex-leaders such as James Buchanan, Abraham Lincoln, and Benjamin Harrison.

Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control. The modern executive's design of unitary presidential control over most offices, alongside "independent" regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers and ending the Senate's power to protect those officers. Shortly afterward, Congress created the Interstate Commerce Commission ("ICC"), the first model for the modern independent agency. These two innovations are a basic foundation for the modern executive branch: the unitary executive's power over most offices, alongside independent regulatory commissions that are sometimes called a "fourth branch of government." This structural change was triggered by a sudden and significant transformation in American campaign finance. In the nineteenth century, parties relied on "assessments": Officeholders paying a percentage of their salary as a kickback to their party. Due to the federal prohibition of patronage assessments in 1876 and 1883, the Senate had less incentive to fight for its power over federal offices and assessment money, and the parties were forced to adopt our more recognizable modern system of large special interest campaign contributions. The Senate suddenly needed to increase its access to railroad money, and the ICC was the Senate's means of attracting that money. The existing scholarship on the ICC generally contends that Congress was "shifting responsibility," decreasing its own power so that it could punt difficult issues and delegate them to a new commission. To the contrary, this Article shows that the Senate and the President were seizing power, not punting away thorny questions. The ICC was a rejection of a far more independent enforcement model (private civil litigation in federal or state courts) in favor of a shared political accountability model (a commission nominated by the President and confirmed by the Senate for six-year terms). This story shows how sudden changes in campaign finance triggered dramatic changes in constitutional design and set the foundation for the modern executive branch. [ABSTRACT FROM AUTHOR]

Over the past quarter century, administrative law scholars have observed the President's growing control over agency policymaking and the separation-of-powers concerns implicated by such unilateral exercises of power. The paradigmatic form of agency policymaking--notice-andcomment rulemaking--mitigates these concerns by ensuring considerable oversight by the courts, Congress, and the public at large. Agencies, however, typically have at their disposal a variety of policymaking tools with which to implement White House goals, including the issuance of guidance documents and the strategic exercise of enforcement discretion. While commentators have drawn attention to the risk that agencies will circumvent the extensive checks associated with rulemaking by issuing a guidance document instead, this Article argues that the potential for an agency to forego both rulemaking and guidance documents in favor of the strategic exercise of enforcement discretion poses a greater threat of unchecked unilateral power. It presents a case study of the use of these different policymaking tools in the Department of Education's Office for Civil Rights (OCR), finding that while agencies are able to weaken external checks on presidential policy preferences by employing guidance documents instead of rulemaking, they can virtually eliminate such checks by implementing White House goals through the strategic exercise of enforcement discretion. This Article closes by evaluating potential reforms to temper politically motivated exercises of enforcement discretion, focusing not only on external mechanisms of oversight, but also on the role of the civil service bureaucracy within the agency itself. [ABSTRACT FROM AUTHOR]

How does the institutional design of a state's bureaucracy affect foreign policy? We argue that institutions can moderate bureaucrats' incentives to act in accordance with an Executive's diplomatic preferences. Where the Executive can influence budgets or career paths, bureaucrats face incentives to adopt her diplomatic goals as their own. Where agencies are shielded from Executive influence, bureaucrats are free to act independently in a bid to enhance their autonomy and their reputation for competence. To test these expectations, we develop a new measure of bureaucratic independence for the 15 aid-giving agencies in the US government. We analyze how independence affects foreign aid allocation patterns over the 1999-2010 period. We find that in 'dependent' agencies, foreign aid flows track the diplomatic objectives of the president. In 'independent' agencies, aid flows appear less responsive to presidential priorities and more responsive to indicators of need in the recipient country. Our results highlight limits on the diplomatic use of foreign aid and emphasize the importance of domestic institutional design. Our findings yield insight into a broad range of policy domains-including international finance, immigration, and the application of economic sanctions-where multiple government agencies are in charge of implementing foreign policy. [ABSTRACT FROM AUTHOR]

Congressional delegation choices are widely studied, but scholars have overlooked the states as an inherent part of this process. How do members of Congress with state constituents delegate responsibility to the states? This article incorporates states and legislators with state-based interests in a theory of intergovernmental delegation and argues that members of Congress consider their relationship with their state government vis-à-vis their connection with the national executive branch as they make intergovernmental delegation choices. This theory is tested against current explanations of decentralization: Republican devolution, average partisan congruence between Congress and the states, and policy type using a novel data set spanning over 30 years, 30,000 provisions, and 197 significant laws. Not only is support for the theory of intergovernmental delegation found, but alternative explanations fail to explain the degree of responsibility delegated to the states in national law, demonstrating the importance of national and state political contexts on delegation. [ABSTRACT FROM AUTHOR]

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism -- the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy -- was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations. Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This "normalization" of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued -- counterintuitively -- during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance -- the very heart of exceptionalism. This Article documents the normalization of foreign relations law over the last twenty-five years. It demonstrates how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the proper interpretation of Youngstown to the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes. Ultimately, this Article argues that courts and scholars should embrace normalization as the new paradigm for foreign relations law. [ABSTRACT FROM AUTHOR]

The article discusses the scope of U.S. executive power as of 2015, and it mentions America's constitutional history and a war powers resolution in relation to U.S. national security. America's Constitution and several former U.S. presidents such as George W. Bush are addressed, as well as congressional authorization for wars. American constitutional laws and statutes are examined, along with U.S. presidential authority, justiciability, and a separation of powers doctrine.

A reprint of the article "War, Depression, and the Presidency, 1933-50," by Clinton Rossiter, which appeared in volume 17, number 4 of the journal in December 1950. The article discusses the U.S.'s Great Depression, World War II in the U.S. and American executive, or presidential, and emergency powers from 1933 through 1950. An overview of the relationship between the U.S. Congress and the president, including the constitutional nature of the relationship and Congress's relationship with U.S. President Franklin D. Roosevelt, is provided.

This article gives an account of late medieval theories and practices of emergency powers. More particularly, it examines the relation between emergency powers and constitutional change. It thus seeks to explain how, in the course of the 13th and 14th centuries, European rulers began using their emergency powers to gradually expand their fiscal and legislative competences at the expense of local authorities and the church. As is demonstrated in this article, it was essentially the normalization of emergency powers that made the transition towards a more centralized government possible. This can be explained by a combination of factors, including the government's claim to an exclusive right to judge what constituted a public necessity, the new focus on prevention and preparation for future necessities, and the increasing identification of necessity with more general claims to 'public utility' and the 'common welfare'. [ABSTRACT FROM AUTHOR]

This paper examines the legal and political arguments of those who support an expansive interpretation of US executive power in the face of threats to the state, taking a comparative historical perspective. It discusses the rationale for this approach by locating its historical origins in international and American jurisprudence, thereby placing them in a modern context. Attention is paid to the points made by various legal representatives of the Bush administration such as John Choon Yoo and Jay S. Bybee. Their views on an expansive response to state emergencies are based on a reading of executive power that informs the Bush administration's approach to law between 2001 and 2008. But this paper goes further in arguing that a common political-juridical ground exists between various critics of the Bush administration, and those who formulated the policies of torture and rendition. This common ground on the subject of executive power in response to emergency lies primarily in the examination of the state of exception examined by Giorgio Agamben. This approach has various implications as to the general exercise of power by the executive in a democratic system. Legem non habet necessitas. Necessity knows no law. Augustine, Soliloquium, 2. [ABSTRACT FROM AUTHOR]

In a message submitted to Congress on January 22, 1807, President Jefferson called attention to activities by a combination of private individuals who had endangered the nation. Admitting that a mixture of rumors and suspicions made it difficult to determine the actual facts, he nevertheless chose to identify Aaron Burr as the principal actor 'whose guilt is placed beyond question.' In advance of a trial, submission and evaluation of evidence, and final verdict by a court, Jefferson publicly found Burr guilty of treasonous conduct punishable by hanging. What prompted Jefferson to make this accusation and what constitutional and legal violations occurred in his pursuit of Burr? [ABSTRACT FROM AUTHOR]

In United States v . Morrison, the Supreme Court announced the rule that the Section 5 power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by--indeed, "controlled by"--precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation of private individuals suggests that it cannot be defended on its own merits. Thus, the Article urges that Morrison be overruled. [ABSTRACT FROM AUTHOR]

It is said that the Great Depression and the New Deal era fundamentally altered the role that America's federal government played in American society as the American public increasingly turned to the national government for solutions to social and economic problems. Each branch of the federal government changed as a result of this increased public interest. Congress, for instance, began passing more laws on an increasingly large array of topics, and as the constitutionality of these laws was challenged in court, America's judicial system had more statutory interpretation questions filling its docket. These changes to America's legislative and judicial systems, however, are dwarfed by those of its executive branch of government. During this era, the presidency became the most prominent branch of the federal government, and as a result, the President began exerting more authority in all aspects of governing, including congressional lawmaking. The post-New Deal Presidents also sought to extend the executive branch's influence over the judiciary's role in interpreting legislation by more frequently issuing signing statements that articulated their Administration's understanding of a law. These Presidents hoped that such articulations would result in greater judicial resolution of legislative ambiguity issues in the executive branch's favor. The judiciary, though, has largely disregarded the President's increased role in the lawmaking process as it has tackled statutory interpretation questions. For instance, the courts often resolve ambiguity in statutory text by looking to extrinsic interpretative aids like legislative history in order to ascertain the congressional intent behind the statute. Presidential interpretative aids such as signing statements, in contrast, are only occasionally consulted. The notion that the courts should consult presidential materials, i.e. "executive history," for statutory interpretation purposes is a controversial topic; some have even argued that the practice itself is unconstitutional. This Article first examines the constitutional concerns surrounding judicial use of executive history and shows that the practice is constitutional for statutory interpretation purposes. However, like any judicial interpretative aid, presidential materials have varying degrees of reliability and authoritative value. This Article accordingly proposes a new organizational scheme for executive history in general—a hierarchal model similar to the one that exists for legislative history—and thus shows what types of executive history the courts should be more inclined to reference. [ABSTRACT FROM AUTHOR]

Parliamentary oversight of the military constitutes an important element of the civilian control of the armed forces. However, the strength of parliaments in this realm varies greatly across democracies and little is known about the sources of this variation. We propose an explanation for one key aspect of this variation: why does parliament enjoy veto power over military deployments in some democracies but not in others? Our analysis of data from forty-nine democracies around the world suggests that at least three factors account for parliamentary strength or weakness in this realm: the external threat to which a country is exposed, its constitutional tradition, and the experience of severe military failure in the past. [ABSTRACT FROM PUBLISHER]

The age of the drone has dawned. Rapid technological development will soon permit the government to deploy micro-scale self-sustaining drones with networked surveillance and precision kinetic capabilities. A recent U.S. Air Force video describes these planned micro-drones as "unobtrusive, pervasive, and lethal." Even if moral and international law concerns about drones used for targeted killings are set aside, current U.S. policy concerning drone use is inadequate to protect the public from possible abuses of executive power. In particular, the judicial branch should play a role in evaluating targeted drone killings, particularly outside an active war zone and at least to the extent U.S. citizens may be impacted directly or as collateral damage. Although the judicial branch has historically played only a limited role with respect to national security and wartime executive branch decisions, there is valuable precedent dating back to the Militia Act of 1792 for ex ante judicial review of the President's use of military force on U.S. soil. Current proposals for a drone court that would utilize a warrant process similar to that employed by the Foreign Intelligence Surveillance Act are a good start, but the standards and procedures of the FISA Court are in important ways inadequate. Congress should establish a limited-jurisdiction judicial branch tribunal that could provide an important independent measure of accountability over the use of killer drones. [ABSTRACT FROM AUTHOR]

This article considers the theory of presidential representation by examining its development from 1800 to 1864. In particular, it returns to the critics of Thomas Jefferson, Andrew Jackson, and Abraham Lincoln and presents new evidence that the concept of presidential representation not only remained contested throughout this period but also grew more entangled with rival claims of representation and alternative arguments for executive power. By exploring the early development of the theory of presidential representation, the article contributes to the ongoing scholarly task of classifying arguments about the foundations of executive power and attempts to link literatures regarding the constitutional and political sources of presidential power. [ABSTRACT FROM AUTHOR]

Most political scientists assume that American presidents seek to optimize their chances of reelection and to maximize their policy preferences in strategic negotiations with their rivals. Presidents, however, have also been pressed throughout history to restrain their self-aggrandizing aims when confronted with what they take to be exigencies of governance. This article examines the governing challenges met by presidents of the early national and antebellum periods, and argues that the distinctive conditions of governance that defined the pre-Civil War polity motivated a pattern of unionist presidential restraint, prompting presidents to refrain from direct applications of federal coercion and to balance the interests of geographic sections of the Union. Presidents' preoccupation with unionism, this article argues, was ever present in this period. The article examines a diverse set of case studies to make this argument and concludes with a discussion of how changes wrought by the Civil War led to the emergence of new patterns of restraint exercised by subsequent generations of American presidents. [ABSTRACT FROM AUTHOR]

Following Richard Neustadt, scholarship on the presidency tends to focus on presidents as single-minded seekers of political power. But, precisely because of the grandness of their political stage, presidents may, in fact, have constitutional ambitions concerning not how much power they will have but how they will wield their constitutional powers. James Madison's presidency provides an important case study of a president's constitutional ambitions. Entering office with constitutional concerns about the power of the presidency relative to the other branches, Madison used his own presidency and especially the War of 1812 to model a new type of constitutional office that he thought would fit better in the system of the separation of powers. [ABSTRACT FROM AUTHOR]

Often treated as a unified concept with a single definition, the presidential mandate actually encompasses multiple definitions, each connected to distinct ideas about democracy and presidential leadership. This article looks at how and when modern presidents have used mandate rhetoric and seeks to explain changes in presidential mandate-claiming patterns. Using an original dataset of 1,467 presidential communications from 1933 through 2009, I find that after 1969presidents became more likely to use election results to justify their actions. However, they also became less likely to emphasize the magnitude of the election result, focusing their mandate rhetoric instead on campaign promises and distinctions between candidates and parties. Evidence suggests that this shift is the result of a combination of several factors: changes to the presidential nomination system, polarized party politics, and an overall decline in presidential approval ratings. Based on this research, I conclude that ideas about the presidential mandate are closely connected with the political conditions and challenges facing presidents. As the place of the presidency has shifted in American politics, the ways in which presidents interpret and communicate about elections have also changed. [ABSTRACT FROM AUTHOR]

Enforcement of law is at the core of the President's constitutional duty to "take Care" that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President's role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President's enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus reveals the need for institutional design reforms--namely more coordination across agencies and greater disclosure of enforcement policy. The seeds for such reforms can be found in several recent efforts that have yet to be made systematic. Concerns about politicization of law enforcement should not override the considerable benefits that would derive. Rather, by acknowledging the President's role in, and responsibility for, enforcement, we can better ensure the structure and transparency that promote appropriate presidential influence. [ABSTRACT FROM AUTHOR]

The article discusses the 1862 elections in Illinois. It examines the significance of the elections in the context of the ongoing U.S. Civil War, the expansion of U.S. government authority during the war by the administration of then-U.S. president Abraham Lincoln and the U.S. Congress, and the fortunes of the Republican Party and the Democratic Party. The article discusses U.S. policy on the emancipation of slaves, legislation known as the Legal Tender Act, and the military draft.

The article discusses executive power in the U.S. in relation to former American President Abraham Lincoln and motion picture director Steven Spielberg's film "Lincoln" which deals with then-U.S. President Lincoln's political maneuverings which were designed to save the union and abolish slavery. Actor Daniel Day-Lewis' portrayal of American President Lincoln is mentioned, along with then-U.S. President George W. Bush's role in the liberation of the Iraqi people from a reported tyranny.

Republican thinkers normally have considered prerogative powers natural and necessary to a state's survival. Yet Americans are suspicious of these powers, despite their frequent use. This paper draws a consequential distinction between the legitimacy of prerogative as such and the dangers of its use. Employing the Roman dictatorship to illustrate the stakes, I demonstrate that, while the Romans were cautious with the Dictatorship, they embraced its legitimacy in a broader context of a self-consciously flexible government and a tradition of innovation. This serves as a vivid contrast with contemporary American perceptions of the sources of constitutional stability. I argue that unwarranted suspicion of flexible government plays an important role in misperceptions about the legitimacy of prerogative power in constitutional regimes. The inevitable dangers of prerogative in action do not suffice to demonstrate its illegitimacy as an institution. [ABSTRACT FROM AUTHOR]

The article discusses U.S. presidential recess appointments to government office without the U.S. Senate's approval from the 1690s through the early 2010s, through examining the U.S. Constitution's Recess Appointments Clause and constitutional law. The relationship between U.S. executive power and the Recess Appointments Clause, including U.S. President Barack Obama's recess appointments, is discussed. The Recess Appointment Clause's granting the U.S. Senate the legislative power to advise the president is also discussed.

An understanding of President Gerald Ford's pardon of Richard Nixon is complicated due to conflicting interpretations. While academic response to the pardon is often critical, cultural critics assert it had a healing effect on the nation. Over time, popular opinion regarding the pardon became more positive. This article seeks to answer the following research question: How may scholars best assess the Nixon pardon? This article synthesizes disparate understandings of the pardon by situating a rhetorical analysis of Ford's language within a cultural interpretation of the pardon power. The author concludes the pardon may be best assessed according to non-juridical metrics. In addition, evidence suggests the pardon helped popularize a discourse of mercy and forgiveness among the American people. The findings have important implications for scholars of presidential rhetoric and executive power. [ABSTRACT FROM AUTHOR]

Presidential management styles vary by each president, with consequences for the structures, processes, and outcomes of American foreign policymaking. Thus, understanding what the United States (U.S.) does in foreign policy in a given administration involves not only the international and domestic context and problems facing the U.S., but also the intersection of: 1) presidential style and personal preferences; 2) key stakeholders, structures and decision-making processes, and; 3) policy choices, which are shaped by the first two factors. However, while it is common to refer to a particular style for a particular president, in fact the same president may simultaneously employ very different styles, with very different policy consequences. This paper examines President Barack Obama's style, structures/processes, and policy outcomes in two policy areas: one in foreign economic policy (the 2008-2009 economic crisis) and one in national security policy (the 2009 Afghanistan "surge" decisions). We conclude that the two cases reveal two very different sets of decision-making dynamics under the same President at roughly the same time. Thus, presidents may have multiple styles, even within the same policy domains. [ABSTRACT FROM AUTHOR]

The article explores whether U.S. Presidents shape and control federal bureaucracy by considering the actions of the Federal Housing Administration (FHA) during the administrations of U.S. Presidents Harry S. Truman and Dwight D. Eisenhower. The authors use a qualitative approach to explore the responsiveness of the FHA to presidential and congressional pressures, decisions of the U.S. Supreme Court, and lobbying interests. The FHA was created to insure mortgages, but from its inception, had long practiced a policy of racial segregation by enforcing a restrictive covenant policy on mortgage offerings and denying funding to African Americans, in stark contrast to the racial policies forwarded by Truman.

How did the signing statements of the modern presidency before Watergate shape the development of the tool and contribute to its institutionalization? A content analysis of the 626 signing statements from 1933 to 1974 shows that the Eisenhower, Johnson, and Nixon administrations set important precedents for the modern constitutional use of the tool by protecting the institution from legislative vetoes and perceived encroachments in regard to foreign affairs and executive privilege. The results reveal that the constitutional logic required for the growth of challenges is rooted in this era and that Watergate served to amplify a trend that was already in motion. [ABSTRACT FROM AUTHOR]

The article discusses the foreign policy of U.S. Senator Wayne L. Morse, with a particular focus on his opposition to the expansion of executive power in the U.S. government since World War II. Particular focus is given to Morse's efforts to limit U.S. presidential war powers, including his opposition to the Mutual Security bill of 1951, his efforts to limit the power of the Central Intelligence Agency (CIA) and his opposition to U.S. President Dwight D. Eisenhower's request for expanded executive powers in regard to U.S. national security interests in Asia.