This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar illustrates, these latter acts of executive lawmaking raise special concerns about separation of powers and politically motivated decision-making. They counsel in favor of judicial caution in accepting such acts and, more generally, in favor of a more cautious approach to the creation of federal common law, which invites such acts.
Throughout most of its national history, Venezuela has been the victim of long and tyrannical dictatorships, broken only by brief spells of semi-democratic government. Constitution after constitution has fallen before the whims of self made generals. Numerous major revolts and countless minor civil uprisings have scarred the country, all having the twofold objective of acquiring for their leaders national power for power's sake and the privilege of organizing Venezuela as a private economic and political domain.In almost all instances the politicians have travelled a bloody road to national power. Having once established themselves in the presidency, they demonstrated considerable reluctance to observe the functional separation of powers decreed by the constitution. As a result of this attitude the legislature and judiciary were weakened to the point of impotency. The raison d'être of these branches thus came to be the legalization of the programs and activities of the executive, even if this meant, as it often did, violating the constitution. The purpose of this article is to examine the evolution and application of executive power.
Major crises can threaten political regimes by empowering demagogues and promoting authoritarian rule. While existing research argues that national emergencies weaken formal checks on executive authority and increase public appetites for strong leadership, no research evaluates whether crises increase mass support for the president's institutional authority. We study this question in the context of the coronavirus/COVID-19 pandemic with an experiment embedded in a national survey of more than 8,000 U.S. adults. We find no evidence that the public evaluated policies differently if they were implemented via unilateral power rather than through the legislative process, nor did the severity of the pandemic at either the state, local, or individual levels moderate evaluations of executive power. Instead, individuals' partisan and ideological views were consistently strong predictors of policy attitudes. Perhaps paradoxically, our results suggest that elite and mass polarization limit the opportunity for crises to promote public acceptance of strengthened executive authority.