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A deeply researched, fully updated edition of The National Security Constitution that explores the growing imbalance of institutional powers in American foreign affairs and national security policy Since the beginning of the American Republic, a package of norms has evolved in the U.S. Constitution to protect the operation of checks and balances in national security policy. This “National Security Constitution” promotes shared powers and balanced institutional participation in foreign policymaking. Today it is under attack from a competing claim of executive unilateralism generated by recurrent patterns of presidential activism, congressional passivity, and judicial tolerance. This dynamic has pushed presidents of both parties to press the limits of law in foreign affairs. In his award-winning National Security Constitution (1990), Harold Hongju Koh traced the evolution of this constitutional struggle across America's history. This new book, based on the earlier volume but with roughly 70 percent new material, brings the story to the present, placing recent events into constitutional perspective. Reviewing the presidencies of the twenty-first century, he explains why modern national security threats have given presidents of both parties incentives to monopolize foreign policy decision-making, Congress incentives to defer, and the courts reasons to rubber-stamp. Koh suggests both a workable strategy and crucial prescriptions to restore the balance of our constitutional order in addressing modern global crises.

While veto threats have a long history, presidents have come to be more reliant on this bargaining tool in the last few decades. Veto Rhetoric therefore serves as a nice companion to Sam Kernell′s classic study, Going Public, which documented a similar trend with regards to presidential public appeals. Kernell′s current study will no doubt once again lead presidential scholars to rethink how they understand and conceptualizing presidential-congressional relations. - Joel Sievert, Texas Tech University In Veto Rhetoric, Samuel Kernell offers a fresh, more sanguine perspective to understanding national policy making in this era of divided government. Contrary to the standard'separation of powers'representation of the veto which deals presidents a weak'take it or leave it'hand, Kernell shows that veto rhetoric forces Congress to pay careful heed of the president's objections early in deliberations as legislation is forming. Moreover, the book introduces original statistical analysis to test the argument and extends previously reported analyses to include the Biden presidency. Veto Rhetoric will change the way students of Congress and the presidency assess their respective roles in making national policy.

Exploring the evolution and resilience of systems for the separation of powers, this prescient book rethinks how different architectures can defend democracies against adverse shocks and help them adapt to change. Frank Vibert cuts across many fields of study to address the central problem in modern government of how to balance the reasoning of experts with that of electoral politics.Beginning from the original separation of powers between the legislative, executive and judicial branches of government, Vibert explores modern alternatives to this system. In particular, he discusses consociationalism, based on the need for political consensus for major decisions, as well as rights-based approaches. Looking to the future, he identifies important areas for improvement in these systems, such as better defences against corruption and stronger representation for the marginalised as well as the need to address income and wealth differences. Ultimately, he shows that the separation of powers is a learning system that can adapt to the tasks of modern government, especially by combining the reasoning of experts with political strategy without reverting to technocracy.Rethinking the Separation of Powers is an essential read for students and scholars of political science, law, behavioural science, social psychology and philosophy. Addressing central problems in modern government, it will also be vital for researchers interested in strategies for effective policy-making.

Larry Sabato, one of the leading experts in American politics, will bring together respected journalists and academics from across the political spectrum to examine every facet of the 2022 midterm election, and what its development and outcome will mean for the nation moving forward. In frank, accessible prose, each author offers insight that goes beyond the headlines, and dives into the underlying forces and shifts that drove the election from its earliest developments to its dramatic conclusion. Following Sabato's introductory analysis, the contributors will provide a comprehensive review of everything in play during the 2022 midterms and look ahead to the 2024 presidential campaign.

​​The Supplement will include the Supreme Court cases from October Term 2022.​ New to the 2023 Edition: Affirmative Action (SFFA v. Harvard College) The Indian Child Welfare Act (Haaland v. Brackeen) Transgender Rights (Doe v. Lapado) Voting Rights (Allen v. Milligan) The Independent State Legislature Theory (Moore v. Harper) The Dormant Commerce Clause (National Pork Producers Council v. Ross) Abortion (Dobbs v. Jackson Women's Health Organization) The Second Amendment (New York State Rifle & Pistol Association, Inc. v. Bruen, United States v. Rahimi)

The United States government is strong. But no single person has all that power. What do you know about checks and balances? Discover the roles of the three branches of government, how their power is divided, and the systems that stop any one part of government from getting too strong. Dyslexic-friendly font and design in this curricular hi-lo series makes social studies approachable for all!

In The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine, leading scholars consider a revival of the Constitution's nondelegation doctrine—the separation-of-powers principle that bars Congress from transferring its legislative powers to the administrative agencies. Although the nondelegation doctrine has lain dormant since 1935, some Supreme Court justices have recently called for its return. As the Supreme Court takes up the doctrine in current cases, this volume makes a timely contribution to our understanding of the separation of powers and the Constitution.

The purchase of this ebook edition does not entitle you to receive access to the Connected eBook with Study Center on CasebookConnect. You will need to purchase a new print book to get access to the full experience, including: lifetime access to the online ebook with highlight, annotation, and search capabilities; practice questions from your favorite study aids; an outline tool and other helpful resources. This hugely successful materials-and-problems book is acclaimed for its textual clarity, evenhanded perspective, and contemporary, up-to-date character. Easily distinguished from other property casebooks for its plain-language descriptions of legal doctrine; explanations of the social ramifications of our system of property law; emphasis on statutory and regulatory interpretation; comprehensive treatment of public accommodations and fair housing law, tribal property issues, and property in human bodies; and use of the problem method to teach legal reasoning and lawyering skills. Streamlined for more accessible teaching, the Eighth Edition has been thoroughly updated to reflect significant changes in the law of property, including in responses to the Covid-19 pandemic, in intellectual property, housing discrimination, regulatory takings, and more.Key Features: Updated to reflect significant changes in the law of property to help professors keep current and be aware of emerging disputes Streamlined to assist in making teaching from the casebook more accessible, without sacrificing coverage and depth New materials and problems have been added in an array of areas, including: The importance of race and slavery in shaping property law and distribution The impact of the Covid-19 pandemic on several core areas of property law Growing questions about the balance between public accommodations and religious liberty, including Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) and its aftermath Emerging caselaw on the rights of people experiencing homelessness; Shifts in property rights emerging from marriage and non-marital intimate relationships; New materials on the law and practice of trusts and the impact of reproductive technologies Recent developments in tribal sovereignty disputes, including McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) Developments in intellectual property, including in copyright and fair use Shifts in fair housing law, including developments involving landlord responsibility for tenant-to-tenant discriminatory harassment Recent Supreme Court developments in the realm of regulatory takings, including Murr v. Wisconsin, 137 S.Ct. 1933 (2017), Knick v. Township of Scott, 139 S. Ct. 2162 (2019); and Cedar Point Nursery v. Hassid (to be decided by the end of this Term) Professors and students will benefit from: Clear, concise, accessible coverage of core property doctrines, through caselaw, statutes, and regulatory materials Fully updated engagement with contemporary controversies in our system of property; and Excellent opportunities for problem- and exercise-based learning in every section

How access to resources and policymaking powers determines the balance of power between the legislative and executive branchesThe specter of unbridled executive power looms large in the American political imagination. Are checks and balances enough to constrain ambitious executives? Checks in the Balance presents a new theory of separation of powers that brings legislative capacity to the fore, explaining why Congress and state legislatures must possess both the opportunities and the means to constrain presidents and governors—and why, without these tools, executive power will prevail.Alexander Bolton and Sharece Thrower reveal how legislative capacity—which they conceive of as the combination of a legislature's resources and policymaking powers—is the key to preventing the accumulation of power in the hands of an encroaching executive. They show how low-capacity legislatures face difficulties checking the executive through mechanisms such as discretion and oversight, and how presidents and governors unilaterally bypass such legislative adversaries to impose their will. When legislative capacity is high, however, the legislative branch can effectively stifle executives. Bolton and Thrower draw on a wealth of historical evidence on congressional capacity, oversight, discretion, and presidential unilateralism. They also examine thousands of gubernatorial executive orders, demonstrating how varying capacity in the states affects governors'power.Checks in the Balance affirms the centrality of legislatures in tempering executive power—and sheds vital new light on how and why they fail.

“Wise and illuminating…Merrill's treatment of the rise of Chevron, and its various twists and turns over the decades, is keenly insightful.” —Cass R. Sunstein, New York Review of Books“Merrill is one of the brightest and best scholars of administrative law in his generation. This book...is must-reading for any citizen who has an interest in the constitutionality of the administrative state.” —Steven G. Calabresi, Northwestern University Pritzker School of Law“A model of how to conduct rigorous, level-headed, and fair-minded analysis of a subject that has generated enormous legal controversy. There is no more judicious mind among American legal scholars than Thomas Merrill's.”—Nicholas Parrillo, Yale Law School“A must-read for practicing or prospective administrative lawyers. They, as well as a broader audience, will find much good sense in the author's judicious treatment of perennial questions of lawful government.”—Michael S. Greve, Claremont Review of BooksThe Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has shifted to the executive branch agencies that interpret laws and to the courts that review their interpretations.Since the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws so long as these are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state charge that Chevron deference enables unaccountable bureaucratic power. In this groundbreaking book, Thomas Merrill reviews the history and consequences of the Chevron doctrine and suggests a way forward.

This volume analyzes the sections of the Constitution itself, and its amendments, as well as other documents that have played a significant role in its creation and adherence. The Constitution has remained in force for over two centuries due to the way the framers separated and balanced governmental powers. It is interpreted, supplemented, and implemented by a large body of federal constitutional law, and has influenced the constitutions of other nations.

Processes of Constitutional Decisionmaking: Cases and Materials, Seventh Edition, 2021 Supplement

Reveals how the U.S. Supreme Court's presidentialism threatens our democracy and what to do about it. Donald Trump's presidency made many Americans wonder whether our system of checks and balances would prove robust enough to withstand an onslaught from a despotic chief executive. In The Specter of Dictatorship, David Driesen analyzes the chief executive's role in the democratic decline of Hungary, Poland, and Turkey and argues that an insufficiently constrained presidency is one of the most important systemic threats to democracy. Driesen urges the U.S. to learn from the mistakes of these failing democracies. Their experiences suggest, Driesen shows, that the Court must eschew its reliance on and expansion of the'unitary executive theory'recently endorsed by the Court and apply a less deferential approach to presidential authority, invoked to protect national security and combat emergencies, than it has in recent years. Ultimately, Driesen argues that concern about loss of democracy should play a major role in the Court's jurisprudence, because loss of democracy can prove irreversible. As autocracy spreads throughout the world, maintaining our democracy has become an urgent matter.

The Trump presidency was not the first to spark contentious debates about presidential power, but its impact on these debates will reverberate far beyond his term. The same rules must apply to all presidents: those whose abuses of power we fear, as well as those whose exercises of power we applaud. In this brief but wide-ranging guide to the presidency, constitutional law expert Daniel Farber charts the limits of presidential power, from the fierce arguments among the Framers to those raging today. Synthesizing history, politics, and settled law, Contested Ground also helps readers make sense of the gaps and gray areas that fuel such heated disputes about the limits of and checks on presidential authority. From appointments and removals to wars and emergencies, Contested Ground investigates the clashes between branches of government as well as between presidential power and individual freedom. Importantly, Farber lays out the substance of constitutional law and the way it is entwined with constitutional politics, a relationship that ensures an evolving institution, heavily shaped by the course of history. The nature of the position makes it difficult to strike the right balance between limiting abuse of power and authorizing its exercise as needed. As we reflect on the long-tailed implications of a presidency that tested these limits of power at every turn, Contested Ground will be essential reading well after today's political climate stabilizes (or doesn't).

The United States Supreme Court has numbered nine justices for the past 150 years. But that number is not fixed. With the Democrats controlling the House and Senate during the Biden presidency, they could add justices to the Supreme Court. But would court packing destroy the Court as an apolitical judicial institution? This is the crucial question Stephen Feldman addresses in his provocative book, Pack the Court! He uses a historical, analytical, and political argument to justify court-packing in general and Democratic court-packing more specifically. Republicans and Democrats alike profess to worry that court-packing will destroy the legitimacy of the Supreme Court as a judicial institution by injecting politics into a purely legal adjudicative process. But as Feldman's insightful book shows, law and politics are forever connected in judicial interpretation and decision making. Pack the Court! insists that court packing is not the threat to the Supreme Court's institutional legitimacy that many fear. Given this, Feldman argues that Democrats should pack the Court while they have the opportunity. Doing so might even strengthen the American people's faith in the Court.

This book examines leading Supreme Court decisions involving the powers of the Court, the president, and Congress, as well as cases addressing American federalism and Americans'economic rights. By analyzing both the Court's opinions and voting patterns from 1791 through 2018, this volume presents an overview of the role of the Supreme Court in the legal and political system of the United States throughout its entire history, regularly relying on Robert McCloskey's theory of the nation's three major constitutional eras and the Supreme Court Database in its organizational approach. Over 100 of the Supreme Court's most significant rulings, old and new, are covered and clarified in this volume to provide an objective, reliable, and valuable resource for students, academics, legal professionals, and the general public alike.

Throughout American history, presidents have shown a startling power to act independently of Congress and the courts. On their own initiative, presidents have taken the country to war, abolished slavery, shielded undocumented immigrants from deportation, declared a national emergency at the border, and more, leading many to decry the rise of an imperial presidency. But given the steep barriers that usually prevent Congress and the courts from formally checking unilateral power, what stops presidents from going it alone even more aggressively? The answer, Dino P. Christenson and Douglas L. Kriner argue, lies in the power of public opinion. With robust empirical data and compelling case studies, the authors reveal the extent to which domestic public opinion limits executive might. Presidents are emboldened to pursue their own agendas when they enjoy strong public support, and constrained when they don't, since unilateral action risks inciting political pushback, jeopardizing future initiatives, and further eroding their political capital. Although few Americans instinctively recoil against unilateralism, Congress and the courts can sway the public's view via their criticism of unilateral policies. Thus, other branches can still check the executive branch through political means. As long as presidents are concerned with public opinion, Christenson and Kriner contend that fears of an imperial presidency are overblown.

A constitutional originalist sounds the alarm over the presidency's ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.Liberal scholars and politicians routinely denounce the imperial presidency—a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the “living presidency” legitimated by the living Constitution.No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash's argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency's stunning expansion. The Living Presidency proposes a baker's dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.

In The Semi-Sovereign Presidency, Capitol Hill insider Charles Tiefer shows how George Bush used the executive office to circumvent Congress, thwart official Washington, and confound the public will. Even Bush partisans may be surprised to discover the president's unprecedented use of executive signing statements to modify or, in effect, abrogate acts of Congress—even popular, bipartisan efforts like the 1991 Civil Rights Act; his commissioning of the'Quayle Council'to derail regulatory legislation such as the Clean Air Act of 1990; and his catapulting of the National Security Council into foreign policy prominence outstripping that of the Departments of Defense and State. As Tiefer details for the first time here,'Iraqgate,'the hidden courtship of Saddam Hussein prior to the Gulf War, is perhaps the most dramatic example of Bush's executive fiat—a relationship conducted by way of Bush National Security Directives and similarly obscured from the public eye. Bush chose an essentially negative approach to governing partly because he was unwilling to engage Congress on matters of principle head to head and was equally unwilling to make his principles public—addressing himself to the nation as his predecessor had so effectively done. But, as Tiefer persuasively argues, it was Bush's belief in the sovereignty of executive power—an almost monarchical conception of the presidency—that was his primary modus operandi and ultimately his downfall. Bush and his approach to power are interesting not just to students and scholars of the presidency but to all citizens concerned about the country and its leadership.

Scholars have long debated the meaning of the pursuit of happiness, yet have tended to define it narrowly, focusing on a single intellectual tradition, and on the use of the term within a single text, the Declaration of Independence. In this insightful volume, Carli Conklin considers the pursuit of happiness across a variety of intellectual traditions, and explores its usage in two key legal texts of the Founding Era, the Declaration and William Blackstone's Commentaries on the Laws of England. For Blackstone, the pursuit of happiness was a science of jurisprudence, by which his students could know, and then rightly apply, the first principles of the Common Law. For the founders, the pursuit of happiness was the individual right to pursue a life lived in harmony with the law of nature and a public duty to govern in accordance with that law. Both applications suggest we consider anew how the phrase, and its underlying legal philosophies, were understood in the founding era. With this work, Conklin makes important contributions to the fields of early American intellectual and legal history.

From a leading constitutional lawyer who has sued every president since LBJ, a masterful explication of the true “pillars of our democracy” On November 9, 2016—and again on January 6, 2021—many Americans feared that our democracy was on the verge of collapse. But is it? In an erudite and brilliant evaluation of the current state of our government, noted constitutional scholar Burt Neuborne administers a stress test to democracy and concludes that our unprecedented sets of constitutional protections, all endorsed by both major parties, stand between us and an authoritarian federal regime: namely the division of powers between the three branches, the rights reserved to the states, and the Bill of Rights. Neuborne parses the genius of our constitutional system and the ways its built-in resilience will ultimately survive current attempts to dismantle it. While many important issue areas—women's right to choose, LGBTQ rights, separation of church and state—risk erosion, Neuborne argues that the Constitution's inherent defense mechanisms can buy us time. But only an active citizenry will enable us to defend our cherished rights and protections, fulfilling Ben Franklin's charge to keep our republic.

The Office of the President of the U.S. isn't what it used to be—it has morphed into an overgrown beast. So says presidential scholar Ivan Eland in his landmark new book War and the Rogue Presidency: Restoring the Republic after Congressional Failure.The presidency no longer simply enforces the laws passed by Congress but literally dominates American political life. Its vast bureaucracy is flush with cash and wields powers never authorized by the Framers. But who do we have to thank for this distortion of the Constitution? Congress.The presidency, says Eland, isn't inherently imperial. It's contingently imperial. Particularly when wars loom and Congress refuses to forestall our engagement in them—with inevitable consequences.But wars also lead to massive domestic government interference.In sum, liberals, conservatives, independents—anybody concerned for personal liberties and good governance—should read this pathbreaking book and grapple with its implications.

American Constitutional Law 11e, Volume II provides a comprehensive account of the nation's defining document, examining how its provisions were originally understood by those who drafted and ratified it, and how they have since been interpreted by the Supreme Court, Congress, the President, lower federal courts, and state judiciaries. Clear and accessible chapter introductions and a careful balance between classic and recent cases provide students with a sense of how the law has been understood and construed over the years. The 11th Edition now includes several landmark First Amendment cases, including Janus v. American Federation of State, County, and Municipal Employees (2018), Minnesota Voters Alliance v. Mansky (2018), National Institute of Family and Life Advocates v. Beccera (2018), Trinity Lutheran Church v. Comer (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). It also includes Carpenter v. United States (2018). A revamped and expanded companion website offers access to even more additional cases, an archive of primary documents, and links to online resources, making this text essential for any constitutional law course.

The idea that the three branches of U.S. government are equal in power is taught in classrooms, proclaimed by politicians, and referenced in the media. But, as David Siemers shows, that idea is a myth, neither intended by the Founders nor true in practice. Siemers explains how adherence to this myth normalizes a politics of gridlock, in which the action of any branch can be checked by the reaction of any other. The Founders, however, envisioned a separation of functions rather than a separation of powers. Siemers argues that this view needs to replace our current view, so that the goals set out in the Constitution's Preamble may be better achieved.

In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.

Estudio sobre la Suprema Corte de los Estados Unidos desde la perspectiva pragmática de un juez. El libro aborda el problema de la legitimidad democrática y su relación con la Corte, a través de ejemplos históricos que documentan los casos en que algunas resoluciones han sido ignoradas o desobedecidas. El autor propone enfoques prácticos para analizar la ley y explicar cómo la legitimidad de la Corte debe ser mantenida a partir de sentencias e interpretaciones que ayuden a que la Constitución funcione en la práctica, labor que exige aplicar principios inmutables a circunstancias cambiantes y establecer relaciones con otras instituciones como el Congreso, el Poder Ejecutivo, los estados de la federación, las Cortes de otras jurisdicciones y las Cortes históricas. Finalmente, la obra aborda los desafíos que el Tribunal Supremo enfrenta en materia de protección de libertades individuales.

This book examines how the Constitution and its amendments not only grant the national and state governments sufficient power to control the governed but also oblige these governments to control themselves. It considers the distribution of power in the national government.

The purchase of this ebook edition does not entitle you to receive access to the Connected eBook with Study Center on CasebookConnect. You will need to purchase a new print book to get access to the full experience, including: lifetime access to the online ebook with highlight, annotation, and search capabilities; practice questions from your favorite study aids; an outline tool and other helpful resources. In Processes of Constitutional Decisionmaking, an extraordinary team of authors traces the historical, political, and social development of constitutional law. Students will consider constitutional questions in a broad historical context, with cutting-edge insights from contemporary scholars. This book has been updated to include all new developments in the field, and delivers strong chapters on the constitutional treatment of sex equality, race, civil rights, separation of powers, and federalism. Key Features: Coverage of recent cases and materials including: Obergefell v. Hodges - Same-Sex Marriage Whole Woman's Health v. Hellerstedt – Abortion Regulation Zivotofsky v. Kerry – Presidential Power Fisher v. University of Texas – Affirmative Action New Discussion of Cooperative Federalism Sessions v. Morales–Santana – Sex Equality

On the campaign trail, Barack Obama spoke often about his constitutional principles. In particular, he objected to George W. Bush's claim to certain “inherent” presidential powers that could not be checked by Congress or the judiciary. After his inauguration, how did President Obama's constitutional principles fare? That is the question Louis Fisher explores in this book, a disturbing and timely study of the tension between constitutional aspirations and executive actions in the American presidency. A constitutional scholar, Fisher views Obama's two terms within the context of other presidencies, and in light of the principles set forth by the Framers. His work reveals how the basic system of checks and balances has been substantially altered by Supreme Court decisions, military initiatives, and scholarship promoting the power of the president—and by presidents progressively more inclined to wield that power. In this analysis we see the steps by which Obama, himself an expert on the Constitution, came to press his agenda more and more aggressively through executive actions: on climate change, renewable energy, the auto industry bail-out, education initiatives, and financial reform. Rather than focus on policy, Fisher examines the politics and practical concerns that drive executive overreach, as well as the impact of such expanded powers on bipartisan support, public understanding, and finally, the functioning of government.A fair but critical assessment of Obama's executive performance and legacy, this sobering book documents the erosion of constitutional principles that prepared the way for the presidency of Donald Trump.

The United States has become ever more deeply entrenched in powerful, rival, partisan camps, and its citizens more sharply separated along ideological lines. The authors of this volume, scholars of political science, economics, and law, examine the relation between our present-day polarization and the design of the nation's Constitution. The provisions of our Constitution are like “parchment barriers”—fragile bulwarks intended to preserve liberty and promote self-government. To be effective, these barriers need to be respected and reinforced by government officials and ordinary citizens, both in law and in custom. This book asks whether today's partisan polarization is threatening these constitutional provisions and thus our constitutional order. The nation's founders, clearly concerned about political division, designed the Constitution with numerous means for controlling factions, restraining majority rule, and preventing concentrations of power. In chapters that span the major institutions of American government, the authors of Parchment Barriers explore how partisans are pushing the limits of these constitutional restraints to achieve their policy goals and how the forces of majority faction are testing the boundaries the Constitution draws around democratic power. What, for instance, are the dangers of power being concentrated in the executive branch, displaced to the judiciary, or assumed by majority party leaders in Congress? How has partisan polarization affected the nature, size, and power of the administrative state? And why do political parties, rather than working to facilitate the constitutional order as envisioned by James Madison, now chafe against its limits on majority rule? Parchment Barriers considers the implications of polarization for policy, governance, and the health of American democracy.

US constitutional jurisprudence often conflates two distinct enquiries: how to interpret the Constitution and how to allocate interpretive authority. This book explains the distinct role of judgements about interpretive authority in constitutional practice. It argues that these judgements do not determine what qualifies as good constitutional argument, and cannot substitute for it. Rather, they specify the division of labour between the political branches and the judiciary in forming applicable constitutional determinations. This explanation of the structure of constitutional reasoning sets the stage for the development of a normative theory about each enquiry. The book advances a theory of substantive constitutional argument. It argues that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice. Yet, this task is entrusted to a scheme of institutions, as agents of free and equal citizens. The standard of review is an interlocking component of that scheme, regulating the judicial assignment. As such, it should aim to facilitate best performance of the overall interpretive task, so that the judicial process settles on appropriate constitutional determinations; grounded on morally sound reasons that reach all citizens and uphold the fundamental commitments to freedom and equal citizenship.

The Imperiled Presidency: Presidential Leadership in the 21st Century calls for a dramatic re-evaluation of the American president's role within the separation of powers system. In contrast with claims by academics, pundits, media, and members of Congress, this provocative new book argues that the contemporary American presidency is too weak rather than too strong. Cal Mackenzie offers the contrarian argument that the real constitutional crisis in contemporary American politics is not the centralization and accumulation of power in the presidency, but rather that effective governance is imperiled by the diminished role of the presidency. The product of more than three years of research and writing and nearly four decades of the author's teaching and writing about the American presidency, The Imperiled Presidency is the first book-length treatment of the weaknesses of the modern presidency, written to be accessible to undergraduates and interested citizens alike. It engages with a wide range of literature that relates to the presidency, including electoral politics, budgetary politics, administrative appointments, and the conduct of foreign affairs. It would be a useful complement to courses that rely primarily on a single textbook, as well as courses that are built around more specific readings from a range of books and articles.

Popular perception holds that presidents act'first and alone,'resorting to unilateral orders to promote an agenda and head off unfavorable legislation. Little research, however, has considered the diverse circumstances in which such orders are issued. The Dual Executive reinterprets how and when presidents use unilateral power by illuminating the dual roles of the president. Drawing from an original data set of over 5,000 executive orders and proclamations (the two most frequently used unilateral orders) from the Franklin D. Roosevelt to the George W. Bush administrations (1933–2009), this book situates unilateral orders within the broad scope of executive–legislative relations. Michelle Belco and Brandon Rottinghaus shed light on the shared nature of unilateral power by recasting the executive as both an aggressive'commander'and a cooperative'administrator'who uses unilateral power not only to circumvent Congress, but also to support and facilitate its operations.

The constitutional presidency is the crown jewel of the separation of powers in the American system. Designed in 1787, the office was structured to weather a wide variety of political circumstances, accommodate broad ranges of personalities in its incumbents and educate officeholders to become better presidents. Nowhere are these three effects clearer than during the brief, unelected tenure of President Gerald Ford, because he occupied the presidency amid tremendous strains on the country and the separation of powers. After the dual traumas of Watergate and Vietnam, the public was profoundly skeptical of government in general and the presidency in particular. As a result, the post-Watergate Congress claimed the mantle of public support and proposed reforms that could have crippled the presidency's constitutional powers. Weakened by the Nixon pardon, Ford stood alone in this environment without many of the informal political strengths associated with the modern presidency. As a result he had to rely, in large measure, on the formal powers of his constitutional office. Based on archival research, this book shows that Ford's presidency placed the Constitution at the center of his time in office. The constitutional presidency allowed him to preserve his own political life, his presidential office, and the separation of powers amid a turbulent chapter in American history.

Legal Aspects of Emergency Services introduces members of fire and emergency medical services to the legal system in the United States, showing them how various types of laws affect their work in emergency services.After studying Legal Aspects of Emergency Services, students will be able to identify situations in their work environment—whether at incident scenes or at the station—that reflect federal, state, and local laws, or may require the assistance of an attorney. The knowledge gained through this text can influence emergency responders'words and actions in legally sensitive situations.Legal Aspects of Emergency Services meets and exceeds the Fire and Emergency Services Higher Education (FESHE) Program Legal Aspects of Emergency Services course outcomes. Chapters progress from a general foundation in the U.S. legal system, to general types of laws, and then to the more specific types of laws affecting emergency services, covering the legal aspects of topics such as: Patient privacy Emergency medical care Public information transparency Technology use Civil rights Employment benefits Employee safety Employer-employee relations Community rightsLegal Aspects of Emergency Services also includes: Decisions from influential court cases Fictional case studies Clarifications of tricky legal concepts State laws involving emergency servicesLegal Aspects of Emergency Services is designed to provide responders with some basic legal knowledge so that, when faced with a legal quandary, they may remember the core principles discussed throughout this book and recognize the need to seek qualified legal advice. The law affects everything responders do in their daily activity, especially when functioning as an agent of a fire or EMS department. Fire fighters are calculated risk takers. They risk a lot to save a lot, and conversely risk nothing to save nothing, and they often find themselves operating within the gray area of those two extremes.Having an understanding of the law as it applies in different situations allows the prudent fire fighter, EMT, supervisor, manager or officer to manage legal exposure. There are times when it may be necessary to assume greater legal risk because it is the right thing to do. There are other times when a legal risk is not worth any potential benefit. As a result, it is important for those in fire and EMS disciplines to have a passing knowledge of the law and how it affects them in their profession.

When asked which branch of government protects citizens'rights, we tend to think of the Supreme Court—stepping in to defend gay rights, for example, in the recent same-sex marriage case. But as constitutional scholar Louis Fisher reveals in his new book, this would be a mistake—and not just because a decision like the gay marriage ruling can be decided by the opinion of a single justice. Rather, we tend to judge the executive and judicial branches idealistically, while taking a more realistic view of the legislative, with its necessarily messier and more transparent workings. In Congress, Fisher highlights these biases as he measures the record of the three branches in protecting individual rights--and finds that Congress, far more than the president or the Supreme Court, has defended the rights of blacks, women, children, Native Americans, and religious liberty.After reviewing the constitutional principles that apply to all three branches of government, Fisher conducts us through a history of struggles over individual rights, showing how the court has frequently failed at many critical junctures where Congress has acted to protect rights. He identifies changes in the balance of power over time—a post-World War II transformation that has undermined the system of checks and balances the Framers designed to protect individuals in their aspiration for self-government. Without a strong, independent Congress, this book reminds us, our system would operate with two elected officers in the executive branch and none in the judiciary, a form of government best described as elitist—and one no one would deem democratic.In light of the history that unfolds here—and in view of a Congress widely decried as dysfunctional—Fisher proposes reforms that would strengthen not only the legislative branch's role in protecting individual rights under the Constitution, but also its standing in the democracy it serves.

This book considers the distribution of power in the national government and explores how the constitutional scheme of separation of powers and checks and balances grants and controls power. It examines how the American Constitution and its amendments oblige the national and state governments.

The Case for Congress: Separation of Powers and the War on Terror examines the constitutional relationship between Congress and the President in the post-September 11 world, arguing that Congress should exercise its legitimate authority in guiding United States policy. While many commentators have focused on the extent of the President's national security and foreign affairs authority, both domestically and abroad, this title focuses on the constitutional authority of Congress to serve as a check on executive power. As a national consensus has developed around the notion that the Bush administration made grave errors in its policy decisions, a reminder of the leading role that Congress can play in those decisions is particularly appropriate. Unlike scholarly work devoted either to detailing or criticizing the Bush administration's policy decisions, this accessible and balanced book focuses on the policies themselves, and on the way in which Congress can influence those policies for the better. The authors further offer specific and useful recommendations for legislative measures that may correct existing policy deficiencies and promote sounder decision-making in the area of national security and foreign affairs.

Congress's role and operation in national politics is fundamentally shaped by the design and structure of the governing institution in the Constitution. One of the key principles of the Constitution is separation of powers. The doctrine is rooted in a political philosophy that aims to keep power from consolidating in any single person or entity, and a key goal of the framers of the Constitution was to establish a governing system that diffused and divided power. These objectives were achieved institutionally through the design of the Constitution. The legislative, executive, and judicial branches of the government were assigned distinct and limited roles under the Constitution, and required to be comprised of different political actors. The constitutional structure does not, however, insulate the branches from each other. While the design of the Constitution aims, through separation, to prevent the centralization of power, it also seeks the same objective through diffusion. Thus, most powers granted under the Constitution are not unilateral for any one branch; instead they overlap. This book provides an overview of separation of powers. It reviews the philosophical and political origins of the doctrine; surveys the structure of separation of power in the Constitution; discusses the consequences of the system, for both the institutions and for individual political actors; and provides a discussion of separation of powers in the context of contemporary politics.

This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the U.S. ratified the UN Charter, which obligates nations to promote human rights'for all without distinction as to race.'In 1950, a California court applied the Charter's human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The exception permits state governments to violate NSE treaties without authorization from the federal political branches. The death of treaty supremacy has significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations.

There have long been a number of “introduction to law” textbooks (primarily aimed at non-American lawyers) and, more recently, textbooks dealing with legislation and regulation. American Legal Process is perhaps the only work since the creation of Henry M. Hart, Jr. & Albert M. Sacks'iconic legal process materials to include extended discussions not only of those topics, but also of the judicial process. The Second Edition represents a continuation of and improvement on the first edition. There is no other law textbook quite like it.New to the 2nd Edition:Reorganization along the lines of the three branches of the U.S. government (legislative, executive, and judicial) and Articles I, II, and III of the U.S. ConstitutionAn increase in the number of chapters from four to 13 (including an introductory chapter) to enhance readability and comprehensionNew/expanded discussions of current topics in Legal Process, including amicus curiae practice; the use of cameras in the courtroom; corpus linguistics; decisional methodology; sua sponte decision making; and the use of foreign lawProfessors and students will benefit from:Increases in content through an expanded use of notesPlain, readable text; very straightforward presentationFascinating subject matter

The U.S. Supreme Court is not a unitary actor and it does not function in a vacuum. It is part of an integrated political system in which its decisions and doctrine must be viewed in a broader context. In some areas, the Court is the lead policy maker. In other areas, the Court fills in the gaps of policy created in the legislative and executive branches. In either instance, the Supreme Court's work is influenced by and in turn influences all three branches of the federal government as well as the interests and opinions of the American people.Pacelle analyzes the Court's interaction in the separation of powers system, detailing its relationship to the presidency, Congress, the bureaucracy, public opinion, interest groups, and the vast system of lower courts. The niche the Court occupies and the role it plays in American government reflect aspects of both the legal and political models. The Court has legal duties and obligations as well as some freedom to exercise its collective political will. Too often those studying the Court have examined it in isolation, but this book urges scholars and students alike to think more broadly and situate the highest court as the'balance wheel'in the American system.

A comprehensive and focused review of all of the Supreme Court's overturns of Congress on constitutional grounds from 1789 to the present suited to college-level political science and constitutional law courses as well as law school students.The always-controversial practice of judicial review of Congress is not prescribed in the Constitution, but is arguably a valid way to protect the rights of individuals or guard against unfair rule by the majority. This book offers a historical review and indictment of the Supreme Court's overruling of Congress, ultimately taking a position that this has been more detrimental than beneficial to the democratic process in the United States, and that in the aggregate rights of individuals and minorities would have been better served if the relevant laws of Congress had been enforced rather than struck down by the Court.Written by an author who is a historian and a lawyer, the book covers all Supreme Court overrides of Congress through 2014, including major historical turning points in Supreme Court legislation and such recent and relevant topics as the Affordable Care Act, limits on contributions to political candidates and campaigns from wealthy individuals, and the Defense of Marriage Act. The discussions of specific cases are made in relevant context and focus on'big picture'themes and concepts without skipping key details, making this a useful volume for law and university level students while also being accessible to general readers.

This book reconnects The Federalist Papers to the study of American politics and political development, arguing that the papers contain previously unrecognized theory of institutional power, a theory that enlarges and refines the contribution of the papers to political theory, but also reconnects the papers to the study of American politics.

This new coursebook introduces students to the relationship among the American constitutional, governmental, and legal systems. With a clear and concise presentation, this book explores historical and contemporary events, judicial opinions, and constitutional provisions that demonstrate how the three systems accommodate social progress in an ever-changing and highly diverse nation. Perfect for LLM courses or even undergraduate classes, this book aims to teach students how to understand constitutional doctrines, brief judicial opinions, and how American history affects contemporary legal issues.Features: Clear and concise presentation and logical organization of material making it an excellent introductory book to the American legal systemInclusion of modern cases on relevant topics, such as same-sex marriage, legalization of marijuana, and homicidal laws affecting juvenilesChapter questions that facilitate basic legal analysis through hypotheticals, opinion briefing, and application of constitutional provisionsInclusion of important historical and political events, such as lawsuits brought against Presidents, congressional impeachment powers, the Electoral College System, the Supreme Court s resolution of voting issues, the Civil War and post Civil War constitutional amendments, the Civil Rights movement, presidential and congressional war powers, and Supreme Court opinions about Guantanamo Bay detainees

This book examines how the constitutional requirements of the lawmaking process, combined with the factional divisions within parties, affect US representatives'decisions about how to distribute power among themselves. The incorporation of the presidential, senatorial, and House factions in the analysis of House rule making marks an important departure from previous theories, which analyze the House as an institution that makes laws in isolation. This book argues that, by constitutional design, the success of the House in passing legislation is highly contingent on the actions of the Senate and the president; and therefore, also by constitutional design, House members must anticipate such actions when they design their rules. An examination of major rule changes from 1879 to 2013 finds that changes in the preferences of constitutional actors outside the House, as well as the political alignment of these political actors vis-à-vis House factions, are crucial for predicting the timing and directionality of rule changes.

Congressional constitutional deliberation is circumscribed by the political regime and time within which it takes place. By understanding the three cases studied here to have taken place within affiliated time, by which they inhabit and exhibit specific regime constructs, the political regime and political time paradigms are affirmed. Each case demonstrates the importance of regime contestation: the normative debate between competing national governing coalitions. Congress acts as a partisan institution functioning within a political environment encompassing both fundamental “settled” values and secondary “unsettled” values. Its deliberation is symbolic and derivative in nature, acting under an umbrella of judicial supremacy and attempting to influence unsettled values, by which regime shifts are desired. These cases belie the notion of “settled” law and a “settled” regime, yet Congress plays a representational role by acting, and, further still, continues and perpetuates an ongoing dialogue with the other branches and national polity which would not take place otherwise.

Introductory textbooks on American government tell us that the Supreme Court is independent from the elected branches and that independent courts better protect rights than their more deferential counterparts. But are these facts or myths? In this groundbreaking new work, Anna Harvey reports evidence showing that the Supreme Court is in fact extraordinarily deferential to congressional preferences in its constitutional rulings. Analyzing cross-national evidence, Harvey also finds that the rights protections we enjoy in the United States appear to be largely due to the fact that we do not have an independent Supreme Court. In fact, we would likely have even greater protections for political and economic rights were we to prohibit our federal courts from exercising judicial review altogether. Harvey's findings suggest that constitutional designers would be wise to heed Thomas Jefferson's advice to “let mercy be the character of the law-giver, but let the judge be a mere machine.&rdquo

Many analysts now believe that the growth of presidential war power relative to Congress is irreversible. This book was written to contest that view. Its purpose is to identify what would be required to restore presidential war power to constitutional specifications while leaving the president powerful enough to do what is truly necessary in the face of any emergency. Buchanan focuses mainly on diagnosing the origins of the problem and devising practical ways to work toward restoration of the constitutional balance of power between Congress and the president. The work begins by showing the lack of clear, widely shared standards whose enforcement is needed to sustain the balance of power and draws on the thinking of the founders and political theorists to crystallize such standards. Next it details how, in the absence of standards, agents such as Congress and the Supreme Court with formal influence on presidents and informal agents such as media and public opinion have unwittingly enabled unnecessary power expansion, such as the presidential'wars of choice'. Of course change of this magnitude cannot be expected to happen quickly. Remedies necessarily involve a reform architecture intended to unfold gradually, with the first step being simply to start a focused conversation (another purpose of this book). Buchanan moves toward specific remedies by identifying the structure and strategy for a new think tank designed to nudge the political system toward the kind of change the book recommends. Lastly, the book shows how a fictional policy trial could take a practical step toward in rebalancing the war power. This is a crucial examination of presidential power and the U.S. separation of powers system, with a focused effort on making a course correction toward the kind of power sharing envisioned in the Constitution.