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The U.S. Supreme Court’s intervention into the recess appointments controversy during the Obama administration demonstrates how an overly legalistic conception of the Constitution’s separation of powers can undermine constitutional politics. The formalistic line drawing by the Court, without attention to larger constitutional objectives, not only legitimized partisan obstruction of the Senate but also prevented the president from ensuring the proper functioning of the government based on the duly enacted laws of Congress. This article argues that political contestation between the branches—structured by legitimate constitutional claims—could have restarted a stalled deliberative process whereas legal resolution distorted the political dynamics at play, giving the illusion of an imperial presidency while providing legal cover for congressional abdication.

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, accounts of how historical practice should inform the separation of powers often require \"acquiescence\" by the branch of government whose prerogatives the practice implicates. Such acquiescence is commonly seen as critical for historical practice to have the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the executive branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This fact necessitates a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which these reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent — war powers, congressional-executive agreements, and removal of executive officers.

In the aftermath of the Cuban Missile Crisis, questions persisted about how the potential cataclysm had been allowed to develop. A subsequent congressional investigation focused on what came to be known as the “photo gap”: five weeks during which intelligence-gathering flights over Cuba had been attenuated. ?In Blind over Cuba, David M. Barrett and Max Holland challenge the popular perception of the Kennedy administration’s handling of the Soviet Union’s surreptitious deployment of missiles in the Western Hemisphere. Rather than epitomizing it as a masterpiece of crisis management by policy makers and the administration, Barrett and Holland make the case that the affair was, in fact, a close call stemming directly from decisions made in a climate of deep distrust between key administration officials and the intelligence community. ?Because of White House and State Department fears of “another U-2 incident” (the infamous 1960 Soviet downing of an American U-2 spy plane), the CIA was not permitted to send surveillance aircraft on prolonged flights over Cuban airspace for many weeks, from late August through early October. Events proved that this was precisely the time when the Soviets were secretly deploying missiles in Cuba. When Director of Central Intelligence John McCone forcefully pointed out that this decision had led to a dangerous void in intelligence collection, the president authorized one U-2 flight directly over western Cuba—thereby averting disaster, as the surveillance detected the Soviet missiles shortly before they became operational.? The Kennedy administration recognized that their failure to gather intelligence was politically explosive, and their subsequent efforts to influence the perception of events form the focus for this study. Using recently declassified documents, secondary materials, and interviews with several key participants, Barrett and Holland weave a story of intra-agency conflict, suspicion, and discord that undermined intelligence-gathering, adversely affected internal postmortems conducted after the crisis peaked, and resulted in keeping Congress and the public in the dark about what really happened.? Fifty years after the crisis that brought the superpowers to the brink, Blind over Cuba: The Photo Gap and the Missile Crisis offers a new chapter in our understanding of that pivotal event, the tensions inside the US government during the cold war, and the obstacles Congress faces when conducting an investigation of the executive branch.

The Constitution’s division of powers from which E. Corwin famously asserted an “invitation to struggle” in the making of US foreign policy (1957, 171) has become overshadowed by partisan conflict in the contemporary era. Although much of the extant literature points to Congress’s subsidiary role in foreign policy relative to the presidency-centered model, the appeal of partisanship has worked to further deepen congressional abrogation and extend presidential unilateralism (Lindsay in Congress and the politics of U.S. Foreign Policy. The Johns Hopkins University Press, Baltimore, 1994; Kriner in After the rubicon: congress, presidents, and the politics of waging war. University of Chicago Press, Chicago, 2010; Potter in Pres Stud Quart 46(4):849–867, 2016). Our analysis illustrates a puzzle. On one hand, there are growing levels of majority support in the USA for political leadership on the world stage. But on the other hand, our analysis of congressional behavior such as voting, lawmaking, and oversight shows relatively clear patterns of congressional decline—Congress no longer exercises much of its power in foreign affairs, neither in form or substance. Partisan incentives for congressional abdication to the presidency carry at least one additional risk we point to: Congressional capitulation from its constitutional duty places democracy in the jeopardy that the Framers’ design was intended to prevent.

In an original assessment of all three branches, Jasmine Farrier reveals a new way in which the American federal system is broken. Turning away from the partisan narratives of everyday politics,Constitutional Dysfunction on Trial diagnoses the deeper and bipartisan nature of imbalance of power that undermines public deliberation and accountability, especially on war powers. By focusing on the lawsuits brought by Congressional members that challenge presidential unilateralism, Farrier provides a new diagnostic lens on the permanent institutional problems that have undermined the separation of powers system in the last five decades, across a diverse array of partisan and policy landscapes. As each chapter demonstrates, member lawsuits are an outlet for frustrated members of both parties who cannot get their House and Senate colleagues to confront overweening presidential action through normal legislative processes. But these lawsuits often backfire - leaving Congress as an institution even more disadvantaged. Jasmine Farrier argues these suits are more symptoms of constitutional dysfunction than the cure.Constitutional Dysfunction on Trial shows federal judges will not and cannot restore the separation of powers system alone. Fifty years of congressional atrophy cannot be reversed in court.

This paper analyzes the roles played by the legislative, executive, and business sector in Mexico’s 2013 tax reform, drawing on original field-research findings. I examine each of these actors’ influence over the public period of congressional debate, as well as the typically invisible agenda-setting stage and the adoption of executive decrees following the legislative process. I find that Congress remains subordinated to the executive in budgetary matters and that business is more central in shaping the details of the tax bill. The tax reform achieved little, leaving the overall fiscal capacity of the Mexican State largely unchanged. Este artículo analiza el papel del legislativo, el ejecutivo y el sector empresarial en la reforma fiscal de 2013 a partir de los hallazgos del trabajo de campo. Se examina la influencia de estos tres actores, tanto en el período de debate público en el congreso como durante el establecimiento de la agenda de la reforma y en los decretos del ejecutivo posteriores al proceso legislativo. Se muestra que el poder legislativo continúa subordinado al ejecutivo en temas presupuestarios y que el sector empresarial tuvo una mayor influencia para definir los detalles de la nueva ley tributaria. La reforma tributaria logró poco, dejando la capacidad recaudatoria del Estado mexicano sin mayor cambio.

In this highly provocative volume, Mickey Edwards argues that conservatives today have abandoned their principles and have become champions of that which they once most feared. The conservative movement was based on a distinctly American kind of conservatism which drew its inspiration directly from the United States Constitution--in particular, an overriding belief in individual liberty and limited government. But today, Edwards argues, the mantle of conservatism has been seized by a group that threatens the health of the entire federal system. Edward concludes with a blueprint for reclaiming conservatism.

Abstract A chief reason that the President is insufficiently constrained when exercising statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha.

During his first term in office, Pres. George W. Bush made reference to the \"unitary executive\" ninety-five times, as part of signing statements, proclamations, and executive orders. Pres. Barack Obama's actions continue to make issues of executive power as timely as ever. Unitary executive theory stems from interpretation of the constitutional assertion that the president is vested with the \"executive power\" of the United States. In this groundbreaking collection of studies, eleven presidential scholars examine for the first time the origins, development, use, and future of this theory.