Faculty Bibliography

Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution. That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. The article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency, and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself. The role of presidential norms in constituting a working government raises a pressing question for public law theory: What happens when these norms break down—when the extralegal system ceases to enforce them? The article sketches a spectrum of judicial responses, each of which finds occasional (though often implicit) support in the case law. Prescriptively, it argues that when the norms of the presidency collapse, the norms of the judiciary appropriately adjust. Underlying judicial deference is an antecedent question of institutional choice: should the court or the president decide the question at issue? The court’s answer to that question is predicated on (sometimes unarticulated) institutional assumptions about how the presidency actually functions—that the presidency is governed by norms that restrain self-dealing or promote considered judgment. Absent such norms, the court is confronted with a very different institutional choice; a court that ignores these presidential norms decides the legal question on false premises. Courts, however, are and should remain limited players in a norm-based constitutional order. Norms often do not implicate an independent and judicially enforceable legal claim. And the more society depends on courts to check norm breaching by political actors, the more fragile norms of the judiciary may become. Ultimately, it is extra-judicial institutions that sustain or erode the norm-based features of the presidency, and of American constitutional democracy.