The Statutory President

07/2005; 90(2).


American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. This Article aims to develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they do for agencies, that the president's actions be justified by an identifiable statutory authorization. The statutory president, I suggest, is subject to administrative law. Second, within the framework of judicial review applicable to agencies, the president's claims of statutory authority should receive deference under the rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The president's accountability, visibility, and the transparency of presidential orders provide strong grounds for applying Chevron deference to the president's assertions of statutory authority. This theory thus emphasizes the role of Congress in defining the boundaries of presidential power, while according deference to the president's interpretations of ambiguities within those boundaries. In this way, it aims to structure the judicial role to demand that political accountability be the basis for political power.

Download full-text


Available from: Kevin M. Stack, Jun 23, 2014
  • Source
    [Show abstract] [Hide abstract]
    ABSTRACT: In recent years the use of private military contractors to execute national security tasks in the U.S. military has finally come under public scrutiny. The main policy question is in three parts: What is the proper division of labor between the public and private sectors? Who decides which sector performs a specific task? If private operatives perform tasks that typically fall on the public side (combat, interrogation), what is the public oversight over the private actors, and how can they be held accountable for wrongdoings? In this article these questions are addressed in relation to the privatization process in the Israeli Defense Forces (IDF). The article has four parts: the first suggests that the Israeli baseline is unique as the IDF has historically been entrusted with a wide array of national-civilian missions; the second explains the economic realities that probably lie behind the privatization efforts; the third describes the slow and cautious privatization process currently under way; the fourth suggests that while there is little public debate, there is civilian oversight, there are some publicly exposed rationales, and there is public support in letting the IDF, the most trusted part of the executive branch, control the process.
    Preview · Article · Mar 2010 · Armed Forces & Society
  • Source
    [Show abstract] [Hide abstract]
    ABSTRACT: How can Congress play a role in formulating national security policy? This Article identifies one way that Congress already plays such a role: in its oversight of executive branch decisions regarding foreign investments in the United States, via the Committee on Foreign Investment in the United States (CFIUS). The executive’s role in this relationship is passive; it is best understood as a congressional notification service. This Article considers the implications of such a service, which could serve as a model for increased congressional involvement in other aspects of foreign affairs. It offers historical support for the descriptive claim that Congress plays a central role in policing foreign investments for national security concerns; the mildness of the executive role is shown both qualitatively and quantitatively through a content analysis of the “boilerplateness” of executive approvals of foreign acquisitions. The role Congress has played in national security and foreign direct investment policymaking has implications for theories of presidential administration and executive discretion in foreign affairs, and also for practicing lawyers interested in defining what exactly the scope of “national security” might be. The Article concludes with a review of these implications.
    Preview · Article · Apr 2010 · Southern California law review
  • [Show abstract] [Hide abstract]
    ABSTRACT: The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law-making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law. © 2013 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author.
    No preview · Article · Apr 2012
Show more