Daphna Renan, "Institutional Settlement" in a Provisional Constitutional Order, 108 Calif. L. Rev. 1995 (2020).
Abstract: I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the ♦provisionality♦ of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems or puzzles that a Constitution-by-Convention poses for public law: a duality at the crux of the presidential office; the unsettled nature of the separation of powers itself; and the role of courts in an unstable constitutional order. In particular, I will argue that our unwritten Constitution provides a challenge not just to Textualism but to the very idea of the separation of powers as a legalistic concept that courts can and should robustly enforce. At the same time, our unsettled presidency raises crucial questions about how courts should respond when litigation implicates presidential norms—or norm breaches—that pertain not just to the legitimacy of executive action, but to the legitimacy of the courts as well.