CONSTITUTIONAL LAW

The Executive Unbound, revisited

Since we published The Executive Unbound: After the Madisonian Republic in 2011,

  • the President has extended the 2004 AUMF to include ISIS and engaged in a “Forever War” without congressional participation;
  • taken military action in Libya, on grounds widely condemned as a transparent circumvention or violation of the War Powers Resolution, while ignoring the contrary views of the Office of Legal Counsel;
  • moved aggressively to regulate greenhouse gas emissions, through the EPA, under the authority of a statute enacted in 1970 that says little of relevance, after Congress refused to enact a regulatory scheme for climate change;
  • unilaterally announced sweeping immigration enforcement policies that effectively legalized millions of aliens, and that closely tracked the terms of a bill that Congress refused to enact;
  • unilaterally delayed rulemaking under the Affordable Care Act, despite unambiguous statutory deadlines, and funded implementation of the Act by diverting appropriations expressly devoted to other purposes;
  • missed dozens of statutory deadlines under Dodd-Frank;
  • refused to defend the constitutionality of federal statutes, and encouraged their invalidation by the courts;
  • used ‘waiver’ authority to dilute or undermine the work participation requirement of the Temporary Assistance for Needy Families program;
  • used ‘waiver’ authority in No Child Left Behind, which was included in the statute to allow state experimentation, to force states to adopt new education standards not embodied in the law;
  • justified recess appointments by a constitutional theory – upheld in principle although not as to particulars by the Supreme Court – that weakens the control of the Senate over the allocation of high offices in government;
  • defied an express statutory command, and by so doing obtained, for the first time in the Nation’s history, a Supreme Court decision recognizing exclusive and inherent presidential power to recognize foreign governments;
  • refused to enforce federal drug laws against marijuana users in states that legalized marijuana.

“Sovereign is he who decides on the exception.”

— Eric Posner & Adrian Vermeule