From our nation’s founding on, we have debated (and increasingly litigated) the appropriate balance of power among the executive (the President), legislative (Congress), and judicial (the courts) branches of government. Emerging issues have amplified those debates. Many appear attributable to Congress retreating from its historical policymaking role. In that legislative vacuum, recent Presidents, seemingly more often than in the past, have pushed policymaking initiatives through executive orders, agency action, and their discretion to enforce federal laws. And many of those presidential acts have been challenged in federal court, leaving the courts to resolve thorny legal issues with profound policy implications.
The seminar will focus on the evolution of presidential power, with a focus on the 21st century. The course has three aims. Two of those are substantive. The first is to familiarize students with the historical aspects of presidential power. As explained below, the course will cover a host of legal issues involving the President, with some attention paid to historical foundations. The second is to emphasize legal developments involving the President over the last 25 years. Whatever one thinks about any particular President, most would agree that 21st century Presidents have attempted to assert presidential power and authority in new, and oftentimes untested, ways. And by all accounts, that trend shows few signs of abating, especially in the continuing absence of legislative action. Accordingly, the course materials will emphasize legal disputes arising during the Bush, Obama, Trump, Biden, and Trump 2.0 Administrations.
The third aim is more practical. Students will come away with a practical understanding of how the President receives legal advice and how the Department of Justice represents the President (as well as other actors in the executive branch) in court.