Suchergebnisse

My contribution to the 2013 Constitutional Law Schmooze poses a question about the downside of executive power, at least in the enforcement context. If executive power to enforce the law presupposes the duty to use it, what happens when the executive branch would rather not? Perhaps reframing the question will help. What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act ("DOMA") have in common, besides the letter "d"? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind—and at the outset, I set aside the "Just say no" response, which is an exercise of executive power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, "Fine, I'll do it, but let's just be clear—I don't want to." In the discussion that follows, I first flush out these responses with my five examples—the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of executive power.

"The execution of laws is more important than the making of them" : reconciling executive power with democracy -- Executive power and the Virginia executive -- Executive power and the constitution of 1787 -- "To place before mankind the common sense of the subject" : declarations of principle -- The real revolution of 1800 : Jefferson's transformation of the inaugural address -- To "produce a union of the powers of the whole" : Jefferson's transformation of the appointment and removal powers -- The Louisiana purchase -- To "complete their entire union of opinion" : the twelfth amendment as amendment to end all amendments -- "To bring their wills to a point of union and effect" : declarations and presidential speech -- Development and difficulties.

Since September 11, 2001, long-standing debates over the nature and proper extent of executive power have assumed a fresh urgency. What is executive power? When did it first emerge, and why? And what is the role of the executive within the American regime? In this book, eleven leading scholars of American politics and political theory address these and related questions, in essays on topics ranging from Aristotle and the Roman Republic to the presidencies of George W. Bush and Barack Obama.