Separation of Powers

Separation of Powers

Judge Brett Kavanaugh
Winter 2013 course
M, T, W, Th, F 9:00am - 12:15pm in WCC Room 3016
3 classroom credits

This course will examine the structure of our national government and our system of separated powers with checks and balances. We will examine a variety of cases and disputes concerning separation of powers issues; as we do so, we will focus not only on court decisions but also on how officials and lawyers in the Legislative Branch and Executive Branch have handled – and should have handled – those controversies. During the course, we also will discuss ongoing and current events that illustrate the continuing significance of our three-branch constitutional structure. General topics will include: the process for electing the President; the appointment and removal of executive officers; the role of the President in the legislative process, including the veto power; the interaction of the three Branches with respect to war and the foreign policy and national security of the United States; Presidential power with respect to criminal law enforcement and prosecution; the President's authority to issue signing statements and to decline to execute unconstitutional laws; the congressional spending authority and power of the purse; congressional oversight of the executive branch; the scope of executive privileges, particularly with respect to congressional inquiries; the roles of the President and the Senate in the appointment of Supreme Court Justices and inferior court judges; and the role of the Judiciary in refereeing disputes and power struggles between the Legislative and Executive Branches.

As we explore these topics, we will examine historical precedents and controversies relating to these issues. We will also explore more modern separation of powers controversies and debates, such as: the post-September 11 Supreme Court, Presidential, and congressional decisions and actions with respect to the war against al Qaeda; the similarities and changes in war powers matters in the Bush and Obama Administrations; the actions of the President and the Senate in the appointments of Supreme Court Justices and executive branch officials; the independent counsel law and investigations of executive officials; executive privilege and impeachment controversies; and the functions of the Attorney General, Counsel to the President, and Assistant Attorney General for the Office of Legal Counsel in formulating legal advice for the President.

The textbook will be Shane and Bruff, Separation of Powers Law (3rd ed. 2011). Enrollment is limited to 35 students. Students will have to submit short reaction emails for every third class. There will be an in-class, open-laptop, 3-hour examination. Alternatively, students may do a paper in lieu of the exam. Papers will not be due during the Winter Term itself but will be due in February 2013.

Subject Areas: Constitutional Law & Civil Rights, Government Structure & Function