Politics & National Security

The Powers of the Presidency -- A Legal Research Bleg

By Paul Rosenzweig
Saturday, June 4, 2016, 10:22 AM

Any law students out there who want to work on a legal research project on the powers of the presidency? [Sorry, no pay involved.]

Here's the idea: Earlier this week I noted the power of the President to shut down US telecommunications in time of national emergency, and I spectulated that we had often granted Presidents substantial discretion because, in the end, we trusted their judgment and doubted their dictatorial tendencies. Today, in the New York Times, Eric Posner picked up on that theme in an op-ed entitled: "And if Elected: What President Trump Could or Couldn’t Do." As Posner writes: "Under the principle of separation of powers, the president shares power with Congress and the judiciary. The party system, the press and American political traditions may constrain him as well. But what would this mean in practice if Mr. Trump wins?" He then follows with a short summary of some of the areas where the President has substantial discretion to act.

Ben has written about discretionary interstitial powers of choice and priority setting within the Executive Branch. But now, I am more interested in the formal grants of discretionary authority to ban immigrants, waive sanctions, assert control over factors of production and the like. (So, let's leave aside regulatory authorities or assertions of raw Article II power for now, and focus only on those areas which, as Justice Jackson put it, the Presdient is acting with the express or implied authority of Congress and his power is at its zenith). It strikes me that it would be really valuable to have a compendium of such statutory authorities in the law enforcement, national security, homeland security and intelligence arenas.

Of course, like most law professor/pundits I have ideas and no time to execute them. If there are any students who fancy a summer research project and, ultimately, co-authoring a short paper with me on the topic, shoot me a note at: psrosenzweig@lawfareblog.com.