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foreign relations, national security, constitutional law, international law, separation of powers, presidential power

Subject Categories

Conflict of Laws | Constitutional Law | International Law | Law


A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at the expense of the political branches. In this Essay, I sketch out the possibility that power holders may often seek to expand or contract the scope of presidential authority based on whether it advances partisan rather than institutional objectives. More specifically, when the constitutional allocation of presidential authority is unbundled along discrete issue dimensions, partisan power holders may have an incentive to stake out a vision of presidential authority that increases the chance of carrying out their favored issues and that makes it more difficult to carry out issues that favor the political opposition. And as the parties' electoral bases and elites become more polarized in terms of ideology and presidential*390 voting patterns, such partisan divisions regarding the allocation of presidential authority are likely to become more pronounced. This Essay illustrates this dynamic by examining the conflicting positions on presidential power adopted by the administrations of President Barack Obama and his predecessors on issues like human rights, war powers, and executive branch oversight of the administrative state.