Roiphe and Green on Presidential Control of the Department of Justice

Rebecca Roiphe, New York Law School, and Bruce A. Green, Fordham University School of Law, have posted Can the President Control the Department of Justice? which is forthcoming in the Alabama Law Review:

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice and the Independent Counsel disagreed about whether the President, as head of the executive branch under Article II, could direct individual prosecutions if he so chose. The Supreme Court in United States v. Nixon left the issue unresolved and has never revisited it.

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

H/t: Legal Theory Blog

National History Center Panels at AHA (and a Landmark LHB Post)

The National History Center yesterday sent out a list of its panels at the Annual Meeting of the American Historical Association next month in Washington, DC.  Links to the sessions are here.

Thursday, January 4
Understanding the Past to Plan the Future: Historical Inquiry and Philanthropic Grant-Making
History and Public Policy Centers: A Roundtable Discussion

Friday, January 5
The End of the Palestine Mandate
What Does Brexit Mean for British History?
Documenting the History of the First Federal Congress
Remembering Marilyn Young, Activist Historian: A Memorial Panel

Saturday, January 6
Federal Government Historians and the Public
The Possibilities and Pitfalls of Big History (AKA Big History Meets the History of Science)
Executive Orders and Presidential Power since FDR

(credit)

NHC Reception

Sunday, January 7
Nationalism: Notions and Practices

[Cue the confetti: This is the 10,000 post on Legal History Blog!]

Liptak on the Emoluments Kerfluffle

Here's the link to New York Times reporter Adam Liptak's story on the exchanges, in blog posts and court pleadings, between various scholars (including a Georgetown Law colleague of mine) over the emoluments clauses as they relate to litigation against President Trump.  Seth Barrett Tillman's latest SSRN posts on the controversy are here and here.

Weekend Roundup

• Recently posted in the Washington Post’s “Made By History” series is Victoria Saker Woeste’s The anti-Semitic origins of the war on "fake news."  It recounts “How Henry Ford tried to discredit the media in order to spread anti-Jewish propaganda.”  

• A scholars' brief on "the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States" is now up on SSRN.

• The Faculty Lounge has an announcement of a new project at Southern Methodist University, Women’s Rights in America: From Early Stirrings to Third Wave Feminism.

• Congratulations to Sarah Staszak, whose No Day in Court: Access to Justice and the Politics of Retrenchment (Oxford University Press, 2015) has recently won the J. David Greenstone Book Award from the American Political Science Association for best book published in the past two years in politics and history. 

• Of possible interest to legal historians of Asia: two back-to-back conferences on comparative law in Asia at the National University of Singapore, Sept.27-28, 2018. The deadline for registration is Sept.12. Details here.

• A follow-up to our recent post on teaching non-US and global legal history through film: Bram Fischer (2017) is about lawyers and the anti-apartheid struggle in South Africa. Trailer here (H/t: Rohit De). 

• The Constitutional Sources Project (ConSource) is co-hosting an art exhibit on the Bill of Rights at Cooper Union in New York City during Constitution Week (September 18-23). The exhibit is free and open to the public.

• Congratulations to Steven Brown, Auburn University, for wining the Hughes-Gossett Senior Prize for the best article in the Journal of Supreme Court History.  More. 

• Jeremi Suri, the Mack Brown Distinguished Chair for Leadership in Global Affairs at the University of Texas at Austin, delivers The Impossible Presidency: The Rise and Fall of America’s Highest Office, the 2017 William Roger Louis lecture, before the National History Center and the Woodrow Wilson Center’s History and Public Policy Program on Monday, September 11, 2017, 4:00pm-5:30pm, in the Wilson Center’s 6th Floor Moynihan Boardroom.

• A reminder that the Law Library of Congress will commemorate Constitution Day with a talk by Michael J. Klarman, Harvard Law School, on The Framers’ Coup: The Making of the United States Constitution (Oxford University Press, 2016), on Tuesday, September 12, 2017, from 1:00 p.m. to 2:00 p.m. in Room LJ-119, located on the first floor of the Thomas Jefferson Building, 10 First St. S.E., Washington, DC.

• Until just recently we missed quite a symposium on Native American Law in the Modern Era in the Albany Government Law Review 10:1.  Contributions include  Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest, by Joseph William Singer; Indians, Race, and Criminal Jurisdiction in Indian Country, by Alex Tallchief Skibine; Anishinaabe law and "The Round House,” by Matthew L.M. Fletcher; The Doctrine of Christian Discovery: Its Fundamental Importance in United States Indian Law and the Need for its Repudiation and Removal, by Joseph J. Heath, Esq.; and The Anglocentric Supremacy of the Marshall Court, by Neyooxet Greymorning.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Fisher's "Supreme Court Expansion of Presidential Power"

Louis Fisher, scholar in residence at The Constitution Project in Washington, DC, has published Supreme Court Expansion of Presidential Power: Unconstitutional Leanings with the University Press of Kansas.

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives.

The book has a pretty terrific dedication, or at least it seems so to us, as Congress returns to session during another fraught moment in the Presidency of Donald J. Trump:

To Justice Robert Jackson, who wrote in the Steel Seizure Case: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

Fisher discusses the book on Just Security. 

Weekend Roundup

• From the Washington Post's "Made by History" section: Ronit Stahl (University of Pennsylvania) and Jennifer Mittelstadt (Rutgers University) on why "Trump’s trans ban isn’t just anti-gay. It’s anti-military"; Cornelius L. Bynum (Purdue University) on "How the stroke of a pen changed the army forever"; Sarah Seo (Iowa Law) on "How the fight over civil forfeiture lays bare the contradictions in modern conservatism"; and more.

• From the Take Care blog: Bernadette Meyler (Stanford Law School) on "Undemocratic Pardoning."

• The Rice University History Department has posted a nice tribute to Thomas Haskell, who passed away on July 12. Another lovely one, by Amy Kittelstrom, appears here, on the U.S. Intellectual History Blog.

• On Vermont Public Radio, Felicia Kornbluh (University of Vermont) remembers the Americans with Disabilities Act.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

More on the Emoluments Clause

In a recent Weekend Roundup, we noted the New York Times op-ed on the Emoluments Clause by Joshua Blackman and Seth Barrett Tillman (as well as John Mikhail’s paper on how dictionaries published between 1523 and 1806 defined "emoluments").  The legal historians Gautham Rao and Jed Handelsman Shugerman have now replied to Blackman and Tillman in Slate. 

Goldstein on the Vice Presidency

Joel K. Goldstein, St. Louis University School of Law, has published History and Constitutional Interpretation: Some Lessons from the Vice Presidency, Arkansas Law Review 69 (2016): 647-694:

This article discusses the use of history in constitutional interpretation by focusing on the Constitution’s provisions relating to the vice presidency.  Professor Goldstein argues that the vice presidency is successful today because it has evolved in response to practice, consequential considerations, and structure, while pushing away from the framers’ original design.

CFP: Constraining the Executive Branch

[Via Notice and Comment, we have the following CFP.]

The Chapman Law Review is pleased to invite article submissions on the theme: “Constraining the Executive Branch.” Publications will appear in a symposium edition, and authors will receive an honorarium.

The executive branch is often criticized for overreaching its powers. Legal issues arise regarding constraining such powers through legislation and litigation. There are various tools Congress, the states, and private parties can use to constrain the Executive Branch, each varying in its level of effectiveness and appropriateness.

Kagan on Chae Chan Ping Now

Michael Kagan, University of Nevada, Las Vegas, William S. Boyd School of Law, has posted Is the Chinese Exclusion Case Still Good Law? (The President Is Trying to Find Out), which is forthcoming in the Nevada Law Journal:

Though barely mentioned in the early court filings, the lurking issue in the constitutional challenges to Pres. Trump’s immigration bans – what opponents call the “Muslim ban” – is whether the 1889 Chinese Exclusion Case can still guide immigration law in the 21st Century.

H/t: Legal Theory Blog

NHC's Congressional Briefing on the History of Executive Orders

[We have the following announcement.]

The National History Center will hold a Congressional briefing on the history of executive orders on Friday, February 17, at 10 a.m. in the Rayburn House Office Building, Room 2103, Washington, DC.

How does the flurry of executive orders issued by President Trump in his first few weeks in office compare to previous presidents' use of this power?  Three leading authorities on the subject will discuss the origins of the executive order and how it has been exercised in the past.

Speakers:  Julia Azari (Marquette), Matt Dallek (George Washington University), and Andrew Rudalevige (Bowdoin)

RSVPs are requested, here.

Snyder's "House of Truth"

Brad Snyder, University of Wisconsin School of Law, has just published The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press):

In 1912, a group of ambitious young men, including future Supreme Court justice Felix Frankfurter and future journalistic giant Walter Lippmann, became disillusioned by the sluggish progress of change in the Taft Administration. The individuals started to band together informally, joined initially by their enthusiasm for Theodore Roosevelt’s Bull Moose campaign. They self-mockingly called the 19th Street row house in which they congregated the “House of Truth,” playing off the lively dinner discussions with frequent guest (and neighbor) Oliver Wendell Holmes, Jr. about life’s verities. Lippmann and Frankfurter were house-mates, and their frequent guests included not merely Holmes but Louis Brandeis, Herbert Hoover, Herbert Croly - founder of the New Republic - and the sculptor (and sometime Klansman) Gutzon Borglum, later the creator of the Mount Rushmore monument.

Weaving together the stories and trajectories of these varied, fascinating, combative, and sometimes contradictory figures, Brad Snyder shows how their thinking about government and policy shifted from a firm belief in progressivism - the belief that the government should protect its workers and regulate monopolies - into what we call liberalism - the belief that government can improve citizens’ lives without abridging their civil liberties and, eventually, civil rights. Holmes replaced Roosevelt in their affections and aspirations. His famous dissents from 1919 onward showed how the Due Process clause could protect not just business but equality under the law, revealing how a generally conservative and reactionary Supreme Court might embrace, even initiate, political and social reform.

Across the years, from 1912 until the start of the New Deal in 1933, the remarkable group of individuals associated with the House of Truth debated the future of America. They fought over Sacco and Vanzetti’s innocence; the dangers of Communism; the role the United States should play the world after World War One; and thought dynamically about things like about minimum wage, child-welfare laws, banking insurance, and Social Security, notions they not only envisioned but worked to enact. American liberalism has no single source, but one was without question a row house in Dupont Circle and the lives that intertwined there at a crucial moment in the country’s history.

Professor Snyder's story on the book in Politico Magazine is here.  And here are some endorsements:

“For the first time, we have the real story of this incredible little galaxy that included such disparate figures as Felix Frankfurter, Walter Lippmann, and Gutzon Borglum, and reached out to cultivate and invigorate the aged Justice Oliver Wendell Holmes--with profound and lasting influence on the course of American politics. Brad Snyder tells this story with verve and insight. This is a major work in the history of this nation’s public life.” -- John Milton Cooper, Jr., author of Woodrow Wilson: A Biography

“With his deep understanding of history and the law, Brad Snyder has crafted a notably illuminating and refreshing book. Deeply researched and finely written, The House of Truth brings to life a group of brilliant friends whose passion for justice helped shape what became known as the American Century.” -- David Maraniss, author of Once in a Great City: A Detroit Story

“This dazzling book provokes reconsideration of the Progressive era, legal reform and modern American liberalism. I know of no other work that so ably transports its readers into the packed and exciting years of the early twentieth century.” -- Laura Kalman, Professor of History, University of California, Santa Barbara

The ABA, the Court-Packing Plan, and the Anti-Parliamentarian Tradition

In revising the materials for my legal history course, I reminded myself of an interesting example of what might be called the tactical comparative constitutionalism of the organized bar.  It was March 5, 1937, exactly one month after President Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court.  The chieftains of the American Bar Association, in a process studied by Stephen Botein, Rayman Solomon, and others, had already begun organizing the opposition.  To give a lofty tone to his appeal to the public to rally to the Court, President Frederick Stinchfield liked to invoke an eminent foreign observer of the American scene.  “‘To the people we come sooner or later,’ says James Bryce in The American Commonwealth," Stinchfield editorialized in the ABA Journal:   ‘It is upon their wisdom and self restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.’”

Stinchfield’s predecessor, William L. Ransom, evidently had less faith in the "broad good sense and attachment to the great principles of the Constitution" of the American people than Bryce did.  After FDR’s legislative triumphs in 1935, he certainly doubted Congress’s will to resist the president.  The ABA should “stop quoting from James Bryce or any other Englishman, in favor of the American tradition of the powers and functions of the Courts,” he counseled Stinchfield in a letter surviving in Newton Baker's papers at the Library of Congress.  “This counsel is not due to prejudice against things British, but to a realization that the President’s fight is veering toward an advocacy of the parliamentary system (executive and legislative powers merged and made supreme, with no judicial curb), and that the President will claim that liberty and individualism have not been destroyed in England.” 

The Court-packing plan died that summer, but the denunciation of “parliamentarism” survived, especially among senators of the president’s party seeking to justify their opposition to FDR's agenda.  For example, the majority report on a proposal to reform agencies' procedures explained, “The basic purpose of this administrative law bill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism with complete destruction of the division of governmental power between the Federal and the State Governments and with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch wherein are included the administrative agencies and tribunals of that Government.”

Although Congressional Republicans are big believers in American exceptionalism, I don’t expect them to invoke the anti-parliamentarian tradition until a constitutional crisis forces them to do so.  When the time comes, I hope it works.

Lederman on Military Trials of Civilians during the Civil War and Its Aftermath

"The Arrival at the Scaffold" (LC)

Martin Lederman, Georgetown University Law Center, has posted The Law (?) of the Lincoln Assassination.

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?

Waxman on Hughes and the Power to Wage War Successfully

Matthew C. Waxman, Columbia Law School, has posted The Power to Wage War Successfully, which is forthcoming in the Columbia Law Review:

Hughes, 1916 (LC)

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. It was in that address that he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day — namely a national draft and intrusive federal economic regulation. It also shows, however, how he struggled unsuccessfully to define when war powers should turn off, or revert to peacetime powers. The story of Hughes’s defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of wars against transnational terrorist groups.

H/t: Legal Theory Blog

Weekend Roundup

• Last Thursday, the Icesi Law School in Cali, Colombia, held a conference to commemorate twenty-five years of the Constitution of Colombia (right).

• Forthcoming in December from Carolina Academic Press: The Death Penalty as Torture: From the Dark Ages to Abolition, by John D. Bessler, and Law Professor and Accidental Historian: The Scholarship of Michael A. Olivas, edited by Ediberto Román.

• The Franklin D. Roosevelt Presidential Library and Museum will present Listening to the Roosevelts: Franklin D. Roosevelt–The War Years at 7:00 p.m. on Wednesday, September 28, 2016, in the Henry A. Wallace Center at the FDR Presidential Library and Home.  Mary E. Stuckey, professor of communication at Georgia State University, presents, with selected audio recordings of FDR during World War II. 

• The Canadian Journal of Women and Law seeks submissions for a special issue 30(2) to be published in December 2018 on Race, Gender and Law: A tribute to the scholarship of Sherene Razack, guest edited by Gada Mahrouse, Carmela Murdocca, and Leslie Thielen-Wilson.  H/t: H-Law.

• Seth Barrett Tillman on Ireland and World War II.

• On Talk Radio Europe: an interview with Ian Burney (University of Manchester) on his new book (with Neil Pemberton), Murder and the Making of English CSI, which we announced here

• CFP: Annual Comparative Law Work-in-Progress Workshop, UCLA School of Law, April 28-29, 2017. Interested? Submit your paper by Feb.1, 2017.

• The Singapore War Crimes Trial Web Portal was launched on Aug.29, 2016. Have a look here. H/t: World Legal History Blog

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Lederman on History's Lessons for Wartime Military Tribunals

Martin Lederman, Georgetown University Law Center, has posted If George Washington Did it, Does that Make it Constitutional? History's Lessons for Wartime Military Tribunals, which is forthcoming in the Georgetown Law Journal:    

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a

Joshua Hett Smith House, Treason Hill (wiki)

1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.

Rudenstine on "The Supreme Court, National Security, and the Constitutional Order"

New from Oxford University Press: The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (August 2016), by David Rudenstine (Cardozo School of Law). A description from the Press:

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch.

David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.

A few blurbs:

"David Rudenstine's new book is a calmly worded expression of outrage at the Supreme Court's violation of the rights of the individual in the name of deference to the Executive branch of the government. Massively documented, this troubling account of secret courts, unregulated surveillance, and unlawful detentions could not be more timely at a point when the future composition of the Court hangs in the political balance. It is not often that scholarship impeccably performed intersects with the urgent needs of the country and of Democracy." -- Stanley Fish 

"A compelling account of how courts have abdicated their responsibility when it comes to holding the executive branch accountable to constitutional limits in the realm of national security. Rudenstine persuasively shows that judicial deference has afforded the executive a blank check, and illustrates why such an approach is fundamentally irresponsible." -- David Cole

More information is available here.

Kent and Mortenson Periodize the President's National Security Power

Andrew Kent, Fordham University School of Law, and Julian Davis Mortenson, University of Michigan Law School, have posted The Search for Authorization: Three Eras of the President's National Security Power, which is forthcoming in the Cambridge Companion to the United States Constitution:

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

Gould on Wilson v. Hughes: "The First Modern Clash Over Federal Power"

New from the University Press of Kansas: The First Modern Clash over Federal Power: Wilson versus Hughes in the Presidential Election of 1916 (2016), by Lewis L. Gould (University of Texas). Here's a description from the Press:

Fully examined for the first time in this engrossing book by one of America’s preeminent presidential scholars, the election that pitted Woodrow Wilson against Charles Evan Hughes emerges as a clear template for the partisan differences of the modern era. The 1916 election dramatically enacted the two parties’ fast-evolving philosophies about the role and reach of federal power. Lewis Gould reveals how, even more than in the celebrated election of 1912, the parties divided along class-based lines in 1916, with the Wilson campaign in many respects anticipating the New Deal while the Republicans adopted the small government, anti-union, and anti-regulation positions they have embraced ever since. The Republicans dismissed Wilson’s 1912 win as a fluke, the result of Theodore Roosevelt’s “Progressive” apostasy splitting the party. But in US Supreme Court Justice Hughes, whose electoral prowess had been proven in two successful runs for governor of New York, the Republicans had anointed a flawed campaigner whose missteps in California sealed his fate very late in the election. Wilson’s strong performance as the head of a united Democratic government (for the first time since 1894), along with Americans’ uncertainty about the outbreak of war in Europe, led to victory.

Along with the ins and outs of the race itself, Gould’s book explores the election’s broader meaning—as, for the first time, the popular election of the Senate coincided with a presidential election, and the women’s suffrage movement gathered steam. The year 1916 also marked the restoration of a two-party competition for president and, as we see in this enlightening book, the beginning of the two-party battle for the hearts and minds of Americans that continues to this day.

There are a number of nice blurbs, but for our readers, this one jumps out:

"Few living historians know as much about the presidency during the Theodore Roosevelt, Taft and Wilson eras as Lew Gould. With this sprightly and absorbing book, he takes us back to an understudied election that proved pivotal for the future of democracy, the Democratic and Republican parties, the Executive Branch, and war and peace. Highly recommended!"—Laura Kalman

More information is available here.