David H. Moore, 𝘛𝘢𝘬𝘪𝘯𝘨 𝘊𝘶𝘦𝘴 𝘧𝘳𝘰𝘮 𝘊𝘰𝘯𝘨𝘳𝘦𝘴𝘴: 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘙𝘦𝘷𝘪𝘦𝘸, 𝘊𝘰𝘯𝘨𝘳𝘦𝘴𝘴𝘪𝘰𝘯𝘢𝘭 𝘈𝘶𝘵𝘩𝘰𝘳𝘪𝘻𝘢𝘵𝘪𝘰𝘯, 𝘢𝘯𝘥 𝘵𝘩𝘦 𝘌𝘹𝘱𝘢𝘯𝘴𝘪𝘰𝘯 𝘰𝘧 𝘗𝘳𝘦𝘴𝘪𝘥𝘦𝘯𝘵𝘪𝘢𝘭 𝘗𝘰𝘸𝘦𝘳, 90 Nᴏᴛʀᴇ Dᴀᴍᴇ L. R. 1019 (2010).
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.
Notre Dame Law Review