Executive Power

Pete Souza

Debates over the proper scope of executive power in the United States have been a feature of U.S. law and politics dating back to before the nation’s founding. Article II of the Constitution vests the president with “the executive power” and the power to act as the military’s Commander in Chief, but the post-9/11 presidency has been characterized as a striking expansion of executive power, particularly in the area of national security.

Latest in Executive Power

Executive Power

Take More Care: Did the President Tell Subordinates to Violate the Law?

On April 5, President Trump met with officials from the Department of Homeland Security at a U.S. Border Patrol station in Calexico, California. According to CNN, the president told Border Patrol agents that they should disobey court orders and turn back asylum seekers at the border.


Documents: Government Motions to Dismiss Border Emergency Lawsuits

On Tuesday, the Trump administration filed motions to dismiss in two lawsuits challenging President Trump’s use of a national emergency declaration to build a wall on the U.S.-Mexico border. The suits, Center for Biological Diversity v. Trump and Alvarez v. Trump, were filed in the U.S. District Court for the District of Columbia immediately following Trump’s Feb. 15 emergency declaration. The government motions to dismiss in both cases are available in full below.

Executive Power

The Senate vs. The President: A Moot Court on the President’s Treaty Withdrawal Powers

Yesterday, Mar. 28, I had the pleasure of moderating an incredibly interesting panel discussion at the Annual Meeting of the American Society of International Law (ASIL). The focus of the discussion was S.J. Res. 4, a real law introduced this past January by a bipartisan coalition of Senators, led by Sen. Tim Kaine (D-Va.). Modeled on a proposal I outlined in Lawfare last summer, S.J. Res.


Speaker Pelosi and the Norms of Impeachment

Speaker Nancy Pelosi has now joined Gerald Ford as a House leader putting on the record an influential view of the boundaries of impeachment. In 1970, when Ford was House minority leader, he spoke from the floor arguing against any boundaries at all: An impeachable offense, said the future president, was whatever the House decided that it was at any given time.

Executive Power

Documents: Cummings Request for Documents Related to Security Clearance Processes and White House Response

On March 1, House Oversight Committee Chairman Elijah Cummings sent the following letter to White House counsel Pat Cipollone requesting documents related to the White House’s security clearance process in light of news reports that the president personally granted a top-secret clearance to Jared Kushner over the objections of security officials. Cipollone's response is below.

Cummings Request

Executive Power

How the Appropriations Bill Can Strengthen ‘Remain in Mexico’

While Congress and cable news chatter about emergency powers and President Trump’s wall, there’s a far more important immigration fight under way on the southwestern border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome.

Federal Law Enforcement

Document: D.C. Circuit Rejects Andrew Miller's Subpoena Challenge

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit rejected former Roger Stone associate Andrew Miller’s challenge to a grand jury subpoena issued in the course of the the special counsel’s investigation. Miller had argued that the subpoena was invalid because Robert Mueller’s appointment as special counsel was unlawful. The three-judge panel of Judges Judith Rogers, Sri Srinivasan and Karen Henderson unanimously affirmed a district court ruling that held Miller in civil contempt after he refused to comply with the subpoena.

Executive Power

Congress Should Limit the Emergency Powers of All Presidents

President Trump claims that the law allows him to spend billions of dollars on a wall that Congress refused to fund. House Democrats, along with Republican Rep. Justin Amash, have introduced a joint resolution that would rescind the emergency proclamation. That proposal is an important start, but Congress should do more.

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