A Unitary-Executive Theorist Says Trump Administration Is “Too Unitary”
What's the administration thinking here?
Professor Saikrishna Prakash has published a new article. His earlier article on the so-called “decision of 1789” was cited in Seila Law. From the abstract:
President Donald Trump’s Executive Orders embrace the unitary executive. But the peculiar version they embrace ignores the many exceptions and qualifications on the unitariness of our Constitution’s executive branch. The Executive Orders fail to heed these limitations because they neglect the obvious point that not all executive power rests with the President. Some are to be exercised in conjunction with the Senate and others are granted to Congress. Among other constraints that the EOs fail to acknowledge, the President cannot create or alter offices, lacks absolute authority over foreign affairs, and cannot suspend laws on foreign affairs grounds or otherwise. Trump is not the first President to make such mistakes, and he will not be the last. Presidents never tire of insisting that if previous presidents asserted some authority—“he did it; they did it,”—they may lay claim to it as well. In a sense, presidents have granted themselves the power to transform their office through the accumulation of actions and events. Violating the Constitution eventually becomes the act of amending it.
Related essay by Damon Linker in NYT:
With a blitz of moves in his 100 days in office, President Trump has sought to greatly enlarge executive power. The typical explanation is that he’s following and expanding a legal idea devised by conservatives during the Reagan administration, the unitary executive theory.
It’s not even close. Mr. Trump has gone beyond that or any other mainstream notion. Instead, members of his administration justify Mr. Trump’s instinctual attraction to power by reaching for a longer tradition of right-wing thought that favors explicitly monarchical and even dictatorial rule.
Those arguments — imported from Europe and translated to the American context — have risen to greater prominence now than at any time since the 1930s. (...) The tradition begins with legal theorist Carl Schmitt and can be followed in the work of the political philosopher Leo Strauss, thinkers affiliated with the Claremont Institute, a California-based think tank with close ties to the Trump movement, and the contemporary writings of the legal scholar Adrian Vermeule.
What's the administration thinking here?
Professor Saikrishna Prakash has published a new article. His earlier article on the so-called “decision of 1789” was cited in Seila Law. From the abstract:
President Donald Trump’s Executive Orders embrace the unitary executive. But the peculiar version they embrace ignores the many exceptions and qualifications on the unitariness of our Constitution’s executive branch. The Executive Orders fail to heed these limitations because they neglect the obvious point that not all executive power rests with the President. Some are to be exercised in conjunction with the Senate and others are granted to Congress. Among other constraints that the EOs fail to acknowledge, the President cannot create or alter offices, lacks absolute authority over foreign affairs, and cannot suspend laws on foreign affairs grounds or otherwise. Trump is not the first President to make such mistakes, and he will not be the last. Presidents never tire of insisting that if previous presidents asserted some authority—“he did it; they did it,”—they may lay claim to it as well. In a sense, presidents have granted themselves the power to transform their office through the accumulation of actions and events. Violating the Constitution eventually becomes the act of amending it.
Related essay by Damon Linker in NYT:
With a blitz of moves in his 100 days in office, President Trump has sought to greatly enlarge executive power. The typical explanation is that he’s following and expanding a legal idea devised by conservatives during the Reagan administration, the unitary executive theory.
It’s not even close. Mr. Trump has gone beyond that or any other mainstream notion. Instead, members of his administration justify Mr. Trump’s instinctual attraction to power by reaching for a longer tradition of right-wing thought that favors explicitly monarchical and even dictatorial rule.
Those arguments — imported from Europe and translated to the American context — have risen to greater prominence now than at any time since the 1930s. (...) The tradition begins with legal theorist Carl Schmitt and can be followed in the work of the political philosopher Leo Strauss, thinkers affiliated with the Claremont Institute, a California-based think tank with close ties to the Trump movement, and the contemporary writings of the legal scholar Adrian Vermeule.
A Unitary-Executive Theorist Says Trump Administration Is “Too Unitary”
What's the administration thinking here?
Professor Saikrishna Prakash has published a new article. His earlier article on the so-called “decision of 1789” was cited in Seila Law. From the abstract:
President Donald Trump’s Executive Orders embrace the unitary executive. But the peculiar version they embrace ignores the many exceptions and qualifications on the unitariness of our Constitution’s executive branch. The Executive Orders fail to heed these limitations because they neglect the obvious point that not all executive power rests with the President. Some are to be exercised in conjunction with the Senate and others are granted to Congress. Among other constraints that the EOs fail to acknowledge, the President cannot create or alter offices, lacks absolute authority over foreign affairs, and cannot suspend laws on foreign affairs grounds or otherwise. Trump is not the first President to make such mistakes, and he will not be the last. Presidents never tire of insisting that if previous presidents asserted some authority—“he did it; they did it,”—they may lay claim to it as well. In a sense, presidents have granted themselves the power to transform their office through the accumulation of actions and events. Violating the Constitution eventually becomes the act of amending it.
Related essay by Damon Linker in NYT:
With a blitz of moves in his 100 days in office, President Trump has sought to greatly enlarge executive power. The typical explanation is that he’s following and expanding a legal idea devised by conservatives during the Reagan administration, the unitary executive theory.
It’s not even close. Mr. Trump has gone beyond that or any other mainstream notion. Instead, members of his administration justify Mr. Trump’s instinctual attraction to power by reaching for a longer tradition of right-wing thought that favors explicitly monarchical and even dictatorial rule.
Those arguments — imported from Europe and translated to the American context — have risen to greater prominence now than at any time since the 1930s. (...) The tradition begins with legal theorist Carl Schmitt and can be followed in the work of the political philosopher Leo Strauss, thinkers affiliated with the Claremont Institute, a California-based think tank with close ties to the Trump movement, and the contemporary writings of the legal scholar Adrian Vermeule.
