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The expansion of executive power in the United States began in the aftermath of the nation's involvement in World War II. Slightly earlier, the Soviet Unions expansion of executive power began in 1917 with the Bolshevik Revolution. Aside from chronology, there were few differences between the expansion of executive power fostered by both global superpowers early in their nationhood. For example, both countries pride themselves in strong executive power, including primarily the ability to detain perceived enemies, convicts, and war criminals. The United States judiciary has repeatedly given enormous deference to the President on these issues, allowing the President to detain individuals nearly absolutely. Furthermore, the ostensible constraints the Constitution places on presidential power have been weakened by judicial precedent, such that the President can easily evade those constraints. Lastly, without a firm definition of what constitutes war, the President has acquired the authority to exercise wartime prerogatives and commit troops without congressional authorization. This Note posits a hypothetical scenario, mirroring the Stalin regime's Gulags, against which to test current United States law's weak constraints. The few limitations that have been placed on the Executive Branch have been inadequate and are in desperate need of repair. In the face of little congressional opposition, Presidents have expanded executive power. One such power is virtually unlimited discretionary detention power. In order to reign in this expansive power, the United States should pass and ratify a new constitutional amendment aimed at limiting executive poioer. In this way, the United States can do what the Soviet Union failed to do--prevent massive political incarcerations in Gulag concentration camps. [ABSTRACT FROM AUTHOR]

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. If President Trump's shrinkages stand, they will be the largest removal of public lands from protected status in U.S. history, and will put the remaining national monuments on the chopping block. This Article advances a novel theory showing that the President lacks the power to revise or revoke monuments. The Antiquities Act gives a power only to protect public lands, not to remove them from protection. Arguments developed so far in litigation and scholarship fail to recognize a general feature of publiclands law: It consistently denies the President the power unilaterally to remove lands from statutorily protected categories once they are placed within those categories. The Antiquities Act should be read to be consistent with this fieldwide pattern. The Article explicates the reasons for this pattern. Generally speaking, public-lands law has been very little theorized; but it needs a theory now. Publiclands law is a field defined by structured normative pluralism. It integrates a range of deeply conflicting public-lands purposes, from mining and drilling to wilderness preservation, across a range of statutes and agencies and acreage totaling nearly a third of the land area of the United States. The asymmetric premise against any presidential power to remove lands from protection is rooted in this structure, specifically the President's obligation to preserve for Congress the option of protecting lands, and the dangers of hasty or corrupt presidential action. The Article traces these rationales across the history of statutory, executive, and judicial articulations of public-lands law and shows that they apply to the present Antiquities Act dispute. The Article also highlights the political and cultural dimensions of the dispute: a series of three-way conflicts among "public-lands populists" who seek increased use of and access to public lands (whose agenda the Trump Administration has incorporated into its economic and ethno-national populism), recreationists and environmentalists, and indigenous communities in the Bears Ears region. Conflicts among these groups amount to fights over collective identity--the nature of the "public" that public lands should serve. This dimension of the conflict does not fall outside the doctrinal analysis of the Antiquities Act. Rather, with a clear theoretical view of public-lands law, it is possible to see that these agendas are already integral to the field itself. They are central threads of its pluralism, and their competing claims fit within its structure. An account of the larger field of cultural conflict both enriches the theory of public-lands law and helps to show how the field should resolve the present fight. [ABSTRACT FROM AUTHOR]

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.

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.

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]

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.

This Essay argues that there are two unappreciated aspects of U.S. constitutional design that have contributed to our country's success. The first is the fact that the United States is divided into fifty rather than four states. This greatly strengthens the national government and renders secession almost impossible. The second is the formidable set of checks and balances set up on presidential power that makes it impossible for U.S. presidents to become dictators. The fact that thirty-nine of the fifty state governors are elected in off-year or midterm elections, elections in which the incumbent president's party almost always loses ground to the opposition, greatly limits U.S. presidential power. [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]

A summary is presented of the U.S. National Defense Authorization Act for Fiscal Year 2013 which reportedly deals with American war powers and a U.S. President's authority to transfer military detainees from the Guantanamo Bay Detention Center in Cuba to other foreign countries.

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.

An essay is presented on the passive-aggressive nature of executive power in America as of August 2013, focusing on the legal aspects of incidents in which the executive branch in the U.S. refuses to enforce the nation's laws regarding issues such as drugs, deportation, and the U.S. Defense of Marriage Act (DOMA). State death penalty laws and executions are mentioned, as well as the U.S. Congress' passage of the National Maximum Speed Law in 1974. The U.S. Drug Enforcement Agency is examined.

An essay is presented on equal protection and the executive branch in America as of August 2013, focusing on the U.S. Congress, the Thirteenth Amendment to the nation's Constitution, and efforts to restrict racial discrimination in the U.S. The legal rights of African Americans are addressed, along with America's Reconstruction and the election of U.S. President Rutherford B. Hayes in 1876. Republicans and Democrats in the 1800s are examined, along with popular votes and the electoral college.

An essay is presented on former U.S. President Abraham Lincoln, his singing of the Emancipation Proclamation (EP), and executive power in America as of August 2013. An analysis is provided regarding Lincoln's constitutional authority to issue the EP during the 19th century. The ratification of the Thirteenth Amendment to the U.S. Constitution is mentioned, along with a separation of powers and the Take Care Clause in the U.S. Constitution is examined.

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.

In a number of significant separation of powers decisions, Supreme Court Justices have relied on Congressional silence to support their conclusion that the President had or did not have the power being challenged. Using language such as "implied" grants or denials of authority and "congressional acquiescence" in Presidential actions, the Court has utilized congressional inaction to tilt the outcome for or against Presidential power in cases such as Youngstown Sheet & Tube Co. v. Sawyer, Dames & Moore v. Regan, and Clinton v. City of New York. This Essay argues that reliance on congressional silence in separation of powers litigation is improper for two reasons. First, INS v. Chadha held that positive action by one House of Congress was invalid as an attempt to affect the rights of third parties because it did not comply with the bicameralism and presentment requirements of Article I, Section 7 of the Constitution. Because action by one House alone has no legal effect, inaction cannot have more legal significance. Second, as a normative matter, legislative silence does not logically support the inference that Congress supports the exercise of presidential power. Because no Justice has argued that a single instance of congressional silence would suffice, the courts must struggle with how many instances and how comparable to the present case they must be to support the desired inference. Similarly, there are multiple reasons why Congress did not seek to overrule the President by legislation, or take other action to accomplish that end, that are as consistent with disagreement as with acquiescence in the prior instances on which the Court has relied. Taking silence off the table does not ease the difficulty in deciding separation of powers; rather it forces the Court to return to first principles instead of attempting to divine the meaning of congressional inaction. [ABSTRACT FROM AUTHOR]

The article discusses the journalist, founder of the newspaper the "Philadelphia Aurora" and political philosopher Benjamin Franklin Bache's perspective on early American politics, including its portrayal in the essay "Remarks Occasioned by the Late Conduct of Mr. Washington as President of the United States: MDCCXCVI." Bache's perspective on U.S. executive power, the U.S. President George Washington, the U.S. Vice President (and future president) John Adams, and republicanism is discussed. An overview of Bache's theory on the U.S. Constitution, including constitutional amendments, is provided. Bache's relationship with the U.S. Secretary of State, future president and Anti-Federalist Thomas Jefferson, is also discussed.

An essay is presented on the history of executive power in the U.S. as of January 2013, focusing on the decisionmaking powers of presidential administrations, and several legal cases including the U.S. Supreme Court (USSC) case Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. (State Farm). USSC Justice William Rehnquist's concurring opinion in the State Farm case is addressed, along with the political views of former U.S. President Ronald Reagan's administration.

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.

The authors seek to answer the questions of why presidents use the power to temporarily seat federal court judges during recesses of the Senate. The use of the recess power can upset the carefully calculated separation of powers envisioned by the framers, shifting power away from one branch of government toward another. Examining every judicial recess appointment from 1789 to 2004, the authors discover that presidents are conditionally strategic in their use of the unilateral authority to appoint federal court judges during Senate recesses but that the use of this power is careful and spare, especially in the modern era. [ABSTRACT FROM AUTHOR]

Notwithstanding Terry Moe's claim, rational choice scholarship has been pursuing the least “revolutionary” of the possible lines of advance in presidential studies. This scholarship asks the same basic question that Richard Neustadt asked nearly a half century ago: how much can a president get done? It follows Neustadt as well in its strategic approach to presidential action and in thinking about the problem of presidential strategy systemically. The new rational choice scholarship has many real strengths. It has helped clarify system parameters and specify how they affect an incumbent's opportunities, incentives risks, and constraints. But this is a “rigor revolution” that does more to perpetuate the traditional preoccupations of presidential studies than to overthrow them. The real revolution will come when we start asking questions about the presidency that no one in 1960 would have thought to ask. [ABSTRACT FROM AUTHOR]

Historians, political scientists, and legal scholars have long debated the origins and development of the executive veto in the early United States. Some scholars argue that the power was originally conceived as quite limited. These scholars argue that until Andrew Jackson used the veto against the recharter of the Bank of the United States, the veto was limited to unconstitutional or administratively unworkable legislation. Others argue that no such norms existed and that the veto was always understood as an important legislative power of the president and that early presidents used it as such. I argue that neither account provides an adequate explanation of the development and usage of the veto in the early republic. I claim that early veto usage was quite different, not because of constraining constitutional norms, but because the electoral conditions that generate equilibrium vetoes had yet to emerge. [ABSTRACT FROM AUTHOR]