Historical gloss and the separation of powers

Harvard Law Review

Volumn 126, Issue 2, 2012, Pages 412-485

  Bradley, Curtis A ^a   Morrison, Trevor W ^b  

^a DUKE UNIVERSITY   (United States)

^b Columbia Law School ^*  (United States)

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[No Author keywords available]

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EID: 84861845439     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (498)

1. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).
2. The proper characterization of past uses of force, then, is a specific example of the general issue of scope noted in section I.A. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. pp. 423-24 (2005). For a list of hundreds of instances in which the United States has used military force abroad since the Founding, see Richard F. Grimmett, Cong. Research Serv., R41677, Instances of Use of United States Armed Forces Abroad, 1798-2010 (2011), available at http://www.fas.org/sgp/crs/natsec /R41677.pdf.
3. See Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
4. Compare, e.g., Edwin Meese III & Todd Gaziano, Obama's Abuse of Power, Wash. Post, Jan. 6, 2012, at A17, available at http://www.washingtonpost.com/opinions/obamas-recess-appointaments-are-unconstitutional/2012/01/05/gIQAnWRfdP_story.html ("[F]or almost 90 years the executive branch has generally agreed that a recess as recognized by the Senate of at least nine to 10 days is necessary before the president can fill any vacancies with a recess appointment."), with Memorandum Opinion from Virginia A. Seitz, Assistant Att'y Gen., Office of Legal Counsel, to the Counsel to the President, Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions 6-7 (Jan. 6, 2012), available at http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf (relying on the "recess appointment practice of past Presidents" and "significant (albeit not uniform) evidence that the Executive Branch's view that recess appointments during intrasession recesses are constitutional has been accepted by Congress and its officers" to show that intrasession recess appointments are constitutional).
5. The only general treatment of the subject was written more than twenty-five years ago. See Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109 (1984). For discussions of historical practice focused on specific areas.
6. see, for example, Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev. 961 (2001)
7. and Jane C. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 Yale L.J. 845 (1996) (reviewing Louis Fisher, Presidential War Power (1995).
8. For notable examples of such scholarship, see Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915 (2005)
9. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006)
10. Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 617 (2010)
11. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008)
12. and Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. Chi. L. Rev. 865 (2007).
13. See generally Rebecca L. Brown, Essay, Tradition and Insight, 103 Yale L.J. 177 (1993)
14. William N. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol'y 193 (2009)
15. Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281 (2011)
16. The only general treatment of the subject was written more than twenty-five years ago. See Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109 (1984). For discussions of historical practice focused on specific areas.
17. Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation, " 58 S. Cal. L. Rev. 551 (1985).
18. See, e.g., Henry P. Monaghan, Presidential War-Making, 50 B.U. L. Rev. 19, 31 (1970) (distinguishing between relying on history in a way that would "freeze forever the scope of a constitutional guarantee framed in terms of individual liberty" and relying on it for "the distribution of political power between the legislative and executive branches")
19. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 400 (2006) ("Under some constitutional provisions, above all the Equal Protection Clause, the Burkean [tradition-based] approach is hard or perhaps impossible to square with entrenched understandings in American constitutional law.... ").
20. U.S. Const. art. I, § 8, cl. 8
21. see also Golan v. Holder, 132 S. Ct. 873, 885-87 (2012) (relying on historical practice in support of congressional power to grant copyright protection to works in the public domain)
22. Eldred v. Ashcroft, 537 U.S. 186, 200-04 (2003) (invoking historical practice in support of congressional power to extend copyrights). To take another example, when deciding whether particular state laws are preempted, the Supreme Court sometimes considers whether the laws fall within "fields of traditional state regulation. " E.g., N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).
23. U.S. Const. art. II, § 1, cl. 1.
24. Compare, e.g., Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 234 (2001) (arguing that the Article II Vesting Clause is a source of substantive presidential authority)
25. with Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 551-52 (2004) (arguing that the Vesting Clause is not a source of substantive presidential authority). For a classic treatment of the basis and scope of presidential power
26. see Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).
27. See U.S. Const. art. II, § 2, cl. 1
28. see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring) ("These cryptic words [of the Commander in Chief Clause] have given rise to some of the most persistent controversies in our constitutional history. ").
29. See U.S. Const. art. II, § 2, cl. 2.
30. Id. 15 See id. art. II, § 3.
31. Youngstown, 343 U.S. at 610-11 (Frankfurter, J., concurring).
32. For Supreme Court decisions, see, for example, Mistretta v. United States, 488 U.S. 361 (1989), in which the Court stated, "'traditional ways of conducting government... give meaning' to the Constitution. Our 200-year tradition of extrajudicial service is additional evidence that the doctrine of separated powers does not prohibit judicial participation in certain extrajudicial activity. " Id. at 401 (citation omitted) (quoting Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring). Also see Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court noted, "[p]ast practice does not, by itself, create power, but 'long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent....'" Id. at 686 (alteration in original) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915). For executive branch reasoning, see, for example, the Krass Memorandum, supra note 3: "[U]nder 'the historical gloss on the "executive Power" vested in Article II of the Constitution,' the President bears the 'vast share of responsibility for the conduct of our foreign relations....'" Id. at 6 (quoting Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003). For academic commentary, see the materials cited and discussed in the case studies in Part IV, pp. 461-85. See also William Howard Taft, Our Chief Magistrate and His Powers 135 (1916) ("Executive power is sometimes created by custom, and so strong is the influence of custom that it seems almost to amend the Constitution. ").
33. See Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring).
34. See Youngstown, 343 U.S. at 633
35. See Youngstown, 343 U.S. at 633
36. see also Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, Law & Contemp. Probs., Autumn 2004, at 169, 183 (describing Justice Frankfurter's practice-based approach as "complementary" to Justice Jackson's framework).
37. See 453 U.S. at 677-88
38. see also Garamendi, 539 U.S. at 415 ("Given the fact that the practice goes back over 200 years, and has received congressional acquiescence throughout its history, the conclusion '[t]hat the President's control of foreign relations includes the settlement of claims is indisputable.'" (quoting United States v. Pink, 315 U.S. 203, 240 (1942) (Frankfurter, J., concurring).
39. See 542 U.S. 507, 519 (2004) (plurality opinion) ("Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. " (quoting Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (codified at 50 U.S.C. § 1541 (2006)
40. see also, e.g., Zemel v. Rusk, 381 U.S. 1, 9 (1965) ("The use in the 1926 Act of language broad enough to permit executive imposition of area restrictions, after the Executive had several times in the recent past openly asserted the power to impose such restrictions under predecessor statutes containing substantially the same language, supports the conclusion that Congress intended in 1926 to maintain in the Executive the authority to make such restrictions. ").
41. See 299 U.S. 304, 327-28 (1936) ("A legislative practice such as we have here, evidenced not by only occasional instances, but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined. ").
42. See infra section IV. B, pp. 468-76.
43. See, e.g., David Gray Adler, The Constitution and the Termination of Treaties 149-207 (Harold Hyman & Stuart Bruchey eds., 1986)
44. Memorandum from John C. Yoo, Deputy Assistant Att'y Gen., and Robert J. Delahunty, Special Counsel, to John Bellinger, III, Senior Assoc. Counsel to the President and Legal Adviser to the Nat'l Sec. Council, Auth. of the President to Suspend Certain Provisions of the ABM Treaty 9 (Nov. 15, 2001) ("The executive branch has long held the view that the President has the constitutional authority to terminate treaties unilaterally, and the legislative branch seems for the most part to have acquiesced in it. ")
45. see also Goldwater v. Carter, 617 F.2d 697, 706 (D.C. Cir.) ("There is much debate among the historians and scholars as to whether in some instances the legislature has been involved at all
46. they are agreed that, when involved, that involvement with the President has taken many different forms. "), vacated on other grounds, 444 U.S. 996 (1979).
47. See Memorandum from Alberto R. Gonzales, Att'y Gen., to Hon. William H. Frist, Majority Leader, U.S. Senate, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 7 (Jan. 19, 2006), available at http://www.justice.gov/opa /whitepaperonnsalegalauthorities.pdf ("[A] consistent understanding has developed that the President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes.").
48. See See Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 6-9.
49. See The Pocket Veto Case, 279 U.S. 655, 689 (1929) ("Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character. ").
50. Ex parte Grossman, 267 U.S. 87, 118-19 (1925).
51. See, e.g., Josh Chafetz, Democracy's Privileged Few 10-19 (2007)
52. Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1384-1405 (1974)
53. Peter M. Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 Minn. L. Rev. 461, 466-84 (1987).
54. Peter M. Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 Minn. L. Rev. 461, 466-84 (1987).
55. see also Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15, 16 (1992) ("Past practice is consistent with exercise of the recess appointment power during an intrasession recess of eighteen days. ").
56. See 548 U.S. 557, 564 (2006).
57. See id. at 592 & n.22 (relying on Article 21 of the Uniform Code of Military Justice, enacted in 1950, "the language of which is substantially identical to the old Article 15 [of the Articles of War] and was preserved by Congress after World War II")
58. see also id. at 638 (Kennedy, J., concurring in part) ("In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. " (emphasis added).
59. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 Harv. L. Rev. 941 (2008) (examining in detail historical practice relating to congressional regulation of issues relating to war)
60. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008) (same). Yet another example is the congressional contempt power, which has no explicit basis in the constitutional text (beyond the Rules of Procedure Clause) but which is broadly accepted today, in part because of longstanding practice.
61. See Josh Chafetz, Democracy's Privileged Few 10-19, at 207-35. 35 552 U.S. 491, 498 (2008) (quoting Memorandum from President George W. Bush for the Att'y Gen., Compliance with the Decision of the International Court of Justice in Avena (Feb. 28, 2005) (internal quotation marks omitted).
62. See Josh Chafetz, Democracy's Privileged Few 10-19, at 532.
63. See Josh Chafetz, Democracy's Privileged Few 10-19, at 531 (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981).
64. See Josh Chafetz, Democracy's Privileged Few 10-19, at 532 (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981).
65. see also Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1705-06 (2011) (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010) (discussing this aspect of Medellín).
66. Medellín, 552 U.S. at 525-26.
67. 462 U.S. 919 (1983).
68. 462 U.S. 919 (1983), at 954-55.
69. 462 U.S. 919 (1983), at 968-69 (White, J., dissenting). For an argument that the Court should have distinguished between "[u]se of the veto as an instrument of the continuing political dialogue between President and Congress" and "its use to control, in random and arbitrary fashion, those matters customarily regarded as the domain of administrative law, " see Peter L. Strauss, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 Duke L.J. 789, 791-92.
70. Chadha, 462 U.S. at 944.
71. Chadha, 462 U.S. at 942 n.13 ("11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. ")
72. see also Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive 12 (2008) ("[A] long line of presidents stretching back to Woodrow Wilson challenged the legislative veto as an impermissible legislative interference with executive power. ").
73. Although this Article is primarily focused on issues of executive and legislative authority, historical practice is also potentially relevant to the scope of judicial authority, and, relatedly, the scope of judicial independence from political-branch control. See, e.g., Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 Ind. L.J. 153, 157 (2003) ("To understand judicial independence and its limits, then, we must look beyond 'doctrinal' independence as divined by courts, and examine the historical development of 'customary' independence as it has emerged in Congress. ").
74. See, e.g., Richard Craswell, Do Trade Customs Exist?, in The Jurisprudential Foundations of Corporate and Commercial Law 118, 122 (Jody S. Kraus & Steven D. Walt eds., 2000) ("[A]ny history of prior decisions will always underdetermine the possible patterns that might be ascribed to that history. ")
75. Martin S. Flaherty, Post-Originalism, 68 U. Chi. L. Rev. 1089, 1105 (2001) (reviewing David P. Currie, The Constitution in Congress: The Jeffersonians, 1801-1829 (2000) ("As a theoretical matter, custom has its own problems. Not least among these are the questions of what counts as the relevant custom, at what level of generality, and for how long. ").
76. James Madison famously expressed the view that some aspects of constitutional meaning would be "liquidated" or "fixed" through early practice. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ")
77. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) ("[P]ractice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. ").
78. See, e.g., Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1766 (1997) (describing strict originalism as holding that "any departure from the understandings of those discrete periods robs constitutional interpretation of its claim to legitimacy").
79. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, 575 (D.D.C. 1952)
80. see also, e.g., Powell v. McCormack, 395 U.S. 486, 546-47 (1969) ("That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. ").
81. For example, Justice Scalia is a proponent of originalism, see Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989), but he nevertheless takes account of post-Founding historical practice, see, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2621 (2011) (Scalia, J., concurring) ("[A]n Article III judge is required in all federal adjudications, unless there is a firmly established historical practice to the contrary. " (second emphasis added).
82. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).
83. See generally Larry Kramer, Fidelity to History-And Through It, 65 Fordham L. Rev. 1627, 1638 (1997) ("[T]o conceive the Constitution as a dynamic framework of evolving institutions and restraints makes history central to the interpretive enterprise. ")
84. Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365 (1997) (arguing for translation-style originalism)
85. Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993) (same).
86. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. U. L. Rev. 549, 550 (2009).
87. See generally Edmund Burke, Reflections on the Revolution in France (J.G.A. Pocock ed., 1987) (1790). For discussions of Burkean approaches to constitutional interpretation, see generally, for example, Sunstein
88. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 400 (2006) ("Under some constitutional provisions, above all the Equal Protection Clause, the Burkean [tradition-based] approach is hard or perhaps impossible to square with entrenched understandings in American constitutional law.... ").
89. and Thomas W. Merrill, Bork v. Burke, 19 Harv. J.L. & Pub. Pol'y 509 (1996).
90. See Edmund Burke, Reflections on the Revolution in France (J.G.A. Pocock ed., 1987) (1790), at 76 ("We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages. ")
91. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 400 (2006) ("Under some constitutional provisions, above all the Equal Protection Clause, the Burkean [tradition-based] approach is hard or perhaps impossible to square with entrenched understandings in American constitutional law.... ").
92. For an argument in favor of this approach to constitutional interpretation, see generally David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).
93. For a critique, see generally Adrian Vermeule, Essay, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482 (2007).
94. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 892 (1996).
95. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. at 905 (arguing that common law constitutionalism helps explain why "[t]he most important changes to the Constitution-many of them, at least-... have come about either through changes in judicial decisions, or through deeper changes in politics or in society")
96. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619, 664 (1994) (explaining that, under a Burkean approach, "institutions become effective in meeting the needs of society through a continuing process of adaptation that may or may not be consistent with the original intentions of the founders").
97. See generally Larry D. Kramer, The People Themselves (2004)
98. Mark Tushnet, Taking the Constitution Away from the Courts (1999)
99. Keith E. Whittington, Constitutional Construction (1999).
100. See generally, e.g., Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4 (2003)
101. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Cal. L. Rev. 1323 (2006)
102. Reva B. Siegel, The Supreme Court, 2007 Term-Comment: Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).
103. See, e.g., Stephen M. Griffin, American Constitutionalism 45 (1996) ("The meaning of most provisions in the Constitution is thus determined in the course of the interaction between the executive and the legislative branches. ")
104. Keith E. Whittington, Constitutional Construction (1999)., at 209-14 (discussing the role of nonjudicial actors, including political institutions, in constitutional construction).
105. See 1 Bruce Ackerman, We the People: Foundations 22 (1991)
106. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 999-98 (2008)
107. see also Brannon P. Denning & Glenn H. Reynolds, Constitutional "Incidents": Interpretation in Real Time, 70 Tenn. L. Rev. 281, 288 (2003) (recommending the use of "incident analysis"-a technique developed in international law-as a "supplement [to] traditional case analysis" in constitutional analysis).
108. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (referring to "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned").
109. See generally Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010).
110. See Michael J. Gerhardt, Non-Judicial Precedent, 61 Vand. L. Rev. 713, 764-76 (2008).
111. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855-56 (1992).
112. Mark Tushnet, Legislative and Executive Stare Decisis, 83 Notre Dame L. Rev. 1339, 1339-40 (2008).
113. See generally Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1495-96 (2010) (emphasizing the value of OLC precedents for similar reasons).
114. See generally Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1496-97.
115. On the countermajoritarian difficulty generally, see Alexander M. Bickel, The Least Dangerous Branch 16-23 (1962).
116. For a reconsideration of the countermajoritarian thesis, see Barry Friedman, The Will of the People (2009). And for a critique of the contention that the Court is in fact "majoritarian, "
117. see Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 Sup. Ct. Rev. 103.
118. See infra section II. A, pp. 433-38.
119. Louis Henkin, Foreign Affairs and the United States Constitution 132 (2d ed. 1996). For criticism of this tendency
120. see Thomas M. Franck, Political Questions /Judicial Answers (1992).
121. See, e.g., Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 Iowa L. Rev. 941, 976 (2004).
122. See Baker v. Carr, 369 U.S. 186, 217 (1962). The Court has not accorded equal weight to each of the six factors.
123. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion) ("These tests are probably listed in descending order of both importance and certainty. ")
124. Nixon v. United States, 506 U.S. 224, 228 (1993) (focusing on the first two Baker factors). For a recent decision emphasizing that the political question doctrine is "a narrow exception" to the judiciary's obligation to decide cases, and suggesting that the doctrine may have little application to cases involving the constitutionality of federal statutes
125. see Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-28 (2012).
126. Baker, 369 U.S. at 217.
127. See Restatement (Third) of the Foreign Relations Law of the UnitedStates § 204 cmt. a (1987) ("The authority [to recognize foreign governments] is implied in the President's express constitutional power to appoint Ambassadors (Article II, Section 2) and to receive Ambassadors (Article II, Section 3), and his implied power to conduct the foreign relations of the United States. ")
128. Robert J. Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 812 (2011) ("The constitutional provision that the President 'shall receive Ambassadors and other public Ministers' is the most often cited source of a plenary executive recognition power and has the longest historical pedigree. ").
129. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) ("Political recognition is exclusively a function of the Executive. ").
130. Compare Brief for the Respondent at 18-24, Zivotofsky, 132 S. Ct. 1421 (No. 10-699) (presenting detailed arguments that "[t]he Executive Branch has consistently exercised sole authority to recognize foreign states, and Congress has acquiesced in that practice, " id. at 18), with Petitioner's Reply Brief at 3-20, Zivotofsky, 132 S. Ct. 1421 (No. 10-699) (responding with detailed arguments that "[h]istory [r]efutes the [s]weeping '[r]ecognition [p]ower' [a]sserted by the Respondent, " id. at 3).
131. See Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1306 (2006). One reason why courts may decide to underenforce the Constitution is a sense that for some issues the political branches are better situated to make the relevant constitutional decision.
132. See Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 240 (2002) ("Underlying the political question doctrine... is the recognition that the political branches possess institutional characteristics that make them superior to the judiciary in deciding certain constitutional questions. ")
133. Kermit Roosevelt III, Aspiration and Underenforcement, 119 Harv. L. Rev. F. 193, 197-98 (2006).
134. See 462 U.S. 919 (1983).
135. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 709 (2011)
136. John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, Law & Contemp. Probs., Autumn 1993, at 293, 300-01.
137. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, at 709 ("The constitutional text is quite specific on many lowstakes issues, where agreement is more important to most political actors than achieving any particular outcome. ")
138. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. at 916 (1996). ("The text matters most for the least important questions. ").
139. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 710 (2011) ("[C]ourts and political actors turn to the text to 'formalistically' resolve separation of powers disputes that have low or uncertain stakes but abandon the text for 'functional' analyses of disputes with predictably serious political consequences. ").
140. We consider the relationship between constitutional law and politics in the separation of powers area more fully in a forthcoming essay, see Curtis A. Bradley & Trevor W. Morrison, Essay, Constitutional Practice as a Constraint on the President, 113 Colum. L. Rev. (forthcoming May 2013).
141. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 134 (1984).
142. See, e.g., David J. Bederman, Custom as a Source of Law 111 (2010) (noting that for historical practice to inform the interpretation of separation of powers, one must ask "whether the opposing branch in the separation-of-powers struggle has actually accepted or 'acquiesced' in the practice")
143. Harold H. Bruff, Balance of Forces 66 (2006) ("Th[e] 'Madisonian' acquiescence doctrine... requires a full understanding and acceptance on the part of the branches of government... before a practice can gloss the Constitution. ")
144. Peter J. Spiro, War Powers and the Sirens of Formalism, 68 N.Y.U. L. Rev. 1338, 1356 (1993) (reviewing John Hart Ely, War and Responsibility (1993) ("[T]he other branch must have accepted or acquiesced in the action. ")
145. Jane C. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 Yale L.J. 880 (1996) ("Congress... must not only be on notice of an executive practice and accompanying claim of authority to act it also must accept or acquiesce in that practice and claim of authority. ")
146. cf. Louis Fisher, Constitutional Conflicts Between Congress and the President 19 (5th rev. ed. 2007) ("Custom is a source of executive power-particularly when Congress fails to challenge and check. ").
147. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 680, 686 (1981) (stating that "[c]rucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement, " id. at 680, and basing that conclusion on "the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the [International Emergency Economic Powers Act] and the Hostage Act, and from the history of acquiescence in executive claims settlement, " id. at 686)
148. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 7 ("This historical practice [relating to war powers] is an important indication of constitutional meaning, because it reflects the two political branches' practical understanding, developed since the founding of the Republic, of their respective roles and responsibilities with respect to national defense....")
149. Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 235 (1994) (referring to historical practice as reflecting "the considered constitutional judgments of the political branches")
150. Harold Hongju Koh, The National Security Constitution 70 (1990) (describing "quasi-constitutional custom" as including "executive practice of which Congress has approved or in which it has acquiesced [and] formal and informal congressional actions with which the president has consistently complied, " and characterizing these customs as "carry[ing] greater normative weight than self-serving justifications that one branch may offer, without another branch's endorsement")
151. H. Jefferson Powell, Essay, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 539 (1999) ("Agreement between the political branches on a course of conduct is important evidence that the conduct should be deemed constitutional. ").
152. Pub. L. No. 93-148, § 2(c), 87 Stat. 555, 555 (1973) (codified at 50 U.S.C. § 1541(c) (2006).
153. For articulations of the judicial supremacist view, see generally, for example, Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359 (1997)
154. and Frederick Schauer, Judicial Supremacy and the Modest Constitution, 92 Calif. L. Rev. 1045 (2004). For leading departmentalist accounts, see generally Tushnet
155. See generally Larry D. Kramer, The People Themselves (2004)
156. and Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994).
157. See Walter Dellinger & H. Jefferson Powell, Marshall's Questions, 2 Green Bag 2d 367, 375-76 (1999) (discussing an 1800 speech given by John Marshall while in the House of Representatives, which reveals that he thought "the courts are not the only institutions whose province and duty includes the exposition and interpretation of the law")
158. See Josh Chafetz, Democracy's Privileged Few 10-19, at 532 (quoting Dames & Moore v. Regan, 453 U.S. 1694-97 (1981). (collecting sources reflecting that the Supreme Court has never had a monopoly on constitutional interpretation)
159. H. Jefferson Powell, The Province and Duty of the Political Departments, 65 U. Chi. L. Rev. 365, 379 (1998) (book review) ("It is, to appropriate a phrase, the province and duty of the political departments, within their respective spheres, to say what the law of the Constitution is. ").
160. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 7 ("This historical practice [relating to war powers] is an important indication of constitutional meaning, because it reflects the two political branches' practical understanding, developed since the founding of the Republic, of their respective roles and responsibilities with respect to national defense....")
161. See, e.g., Uruguay Round Agreements, 18 Op. O.L.C. at 233-34 (referring to the "practical construction placed on [the Constitution] by the executive and legislative branches acting together" and "the practical statesmanship of the political branches").
162. See, e.g., Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 401 (2006) ("If Congress and President Bush have settled on certain accommodations, there is reason to believe that those accommodations make institutional sense. ").
163. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. p. 426 (2006)
164. There is reason to doubt the tenability of a purely functional or a purely formal approach to the separation of powers. See generally M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603 (2001). Still, those approaches represent two important themes in the scholarly and judicial reasoning in this area. For an argument that functionalism and formalism both err by contending that the Constitution embeds an overarching, general separation of powers principle (as opposed to a variety of clause-specific principles, operating at various levels of generality)
165. see John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942-50 (2011).
166. See, e.g., United States v. Midwest Oil Co., 236 U.S. 459, 472-73 (1915) ("Both officers, lawmakers and citizens naturally adjust themselves to any long-continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. ").
167. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 294 (2011) ("A power often does not remain in the branch in which it was initially placed, but may instead effectively be exercised elsewhere on account of the implicit bargains and accommodations that reflect the interests and capacities of the branches. ")
168. J. Gregory Sidak, To Declare War, 41 Duke L.J. 27, 63 (1991) ("Regardless of the initial assignment of powers under the Constitution, and as long as transaction costs are not too high, the Coase Theorem suggests that the three branches will be able to reassign those powers in any manner that achieves greater efficiency in the production of public goods. " (footnote omitted).
169. U.S. Const. art. II, § 2, cl. 2.
170. See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 405-06 (2000).
171. Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 101
172. See Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307, 313-14 (2006).
173. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. at 313-14, 357-60. (2006).
174. Cf. Bond v. United States, 131 S. Ct. 2355, 2365 (2011) ("The structural principles secured by the separation of powers protect the individual as well. ").
175. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev., at 68 (2011) ("By requiring formality, the Constitution raises transaction costs and thus intentionally discourages certain bargains that otherwise could be struck between the branches of the federal government in the production of public goods. ").
176. In effect, this idea amounts to saying that there are "political safeguards" of separation of powers akin to the purported political safeguards of federalism. See Jesse H. Choper, Judicial Review and the National Political Process 275 (1980) (arguing that judicial review to police the boundaries of executive and legislative power is unnecessary because "[e]ach branch... has tremendous incentives jealously to guard its constitutional boundaries and assigned prerogatives against invasion by the other, " and "[i]f either branch perceives a constitutional violation of this kind,...[it] possesses an impressive arsenal of weapons to demand observance of constitutional dictates by the other"). On the political safeguards of federalism, see generally Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000)
177. and Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
178. 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring in the judgment)
179. see also Made in the USA Found. v. United States, 242 F.3d 1300, 1311 n.27 (11th Cir. 2001) ("[H]istorical practice may illuminate any prudential considerations governing the advisability or inadvisability of judicial intervention in a given controversy. ").
180. Goldwater, 444 U.S. at 997-98 (Powell, J., concurring in the judgment)
181. see also Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev., at 723-24 (2011) ("It is an article of faith among contemporary courts and constitutional theorists that the legislative and executive branches will police and prevent one another's attempts at aggrandizement, making judicial supervision of separation of powers necessary only to maintain a level playing field between the competitive branches. ").
182. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev., p. 419.
183. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
184. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 654. (1952)
185. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 654. (1952)
186. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 960 (2005), ("Courts and theorists continue to embrace Madison's understanding of competition among empire-building branches as the primary dynamic of the constitutional separation of powers. "). In referring to this conception of separation of powers as the "Madisonian conception, " we take no position on whether The Federalist No. 51 accurately or fully reflected Madison's thoughts on the matter. Cf. Samuel Kernell, "The True Principles of Republican Government": Reassessing James Madison's Political Science, in James Madison: The Theory and Practice of Republican Government 92, 93 (Samuel Kernell ed., 2003) (arguing that The Federalist No. 51 "does not represent Madison's sincere theoretical views on the Constitution"). It is sufficient for our purposes that the system described in The Federalist No. 51 is the one envisioned by many scholars and judges. Nor are we claiming, of course, that Madison himself necessarily supported a historical gloss approach to constitutional interpretation like that discussed by Justice Frankfurter in Youngstown.
187. James Madison famously expressed the view that some aspects of constitutional meaning would be "liquidated" or "fixed" through early practice. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. "), at 318.
188. James Madison famously expressed the view that some aspects of constitutional meaning would be "liquidated" or "fixed" through early practice. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. "), at 319.
189. James Madison famously expressed the view that some aspects of constitutional meaning would be "liquidated" or "fixed" through early practice. See The Federalist No. 37, at 16 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. "), at 17.
190. See generally Larry D. Kramer, The People Themselves (2004), at 98 (describing the Madisonian model as anticipating that, "[t]o preserve his or her own power, a member of Congress would be alert to attempts by the president to make the presidency more powerful; and similarly for the president").
191. Posner & Vermeule, The Credible Executive
192. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 884 (2005)
193. see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) ("Publius's view of separation of powers presumes three branches with equivalent ambitions of maximizing their powers, yet legislative abdication is the reigning modus operandi. ")
194. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. at 2313 (2006), ("Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. "). Even if modern separation of powers did work the way that Madison envisioned, it is not clear that it would produce socially optimal outcomes.
195. See Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 4, 27 (2009) ("[Madison's] argument lacks any mechanism to ensure that competition among institutions promoting their interests or ambitions will promote a state of affairs that is both patterned and desirable overall.... "). But that point is separate from the issue we are addressing here.
196. See generally Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132 (1999).
197. The President's veto power and certain other features of the Constitution were included in part as a reaction by the Founders to the dominance of state legislatures under the Articles of Confederation. See, e.g., The Federalist No. 48 (James Madison), Myers v. United States, 272 U.S., at 306 (1926) ("The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex. "). For an account of how the President's veto power can have significant effects on legislation even when it is not exercised
198. see Charles M. Cameron, Veto Bargaining (2000).
199. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 138 (1999). Unilateral presidential action is a recurring phenomenon. For discussion of various unilateral actions by President Obama
200. see Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 23, 2012, at A1.
201. See, e.g., Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 Yale L.J. 1230, 1255 (2007) ("[V]eto power functions ex ante as a disincentive even to begin the legislative reform process.... ").
202. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 146. (1999).
203. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. at 886. (2008).
204. See Eric A. Posner & Adrian Vermeule, The Executive Unbound 23-24, 26-27 (2010)
205. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 144. (1999).
206. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 144. (1999).
207. see also John Ferejohn & Rick Hills, Blank Checks, Insufficient Balances 35 (Apr. 26, 2012) (unpublished manuscript), available at http://www.utexas.edu/law/colloquium/papers-public/2011-2012/04-26-12
208. The Federalist No. 37, at 312 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ")
209. see also The Federalist No. 37, at 441 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ") (noting "[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments").
210. INS v. Chadha, 462 U.S. 919, 947 (1983).
211. The Federalist No. 73, at 441 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ") (noting "[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments"). (emphasis added).
212. The Federalist No. 51, at 319. (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ") (noting "[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments").
213. See, e.g., R. Douglas Arnold, The Logic of Congressional Action 5 (1990) ("Although [members of Congress] are not single-minded seekers of reelection, reelection is their dominant goal. ")
214. Morris P. Fiorina, Congress: Keystone of the Washington Establishment 39 (1977) ("[T]he primary goal of the typical congressman is reelection. ")
215. David R. Mayhew, Congress: The Electoral Connection 13 (1974) ("United States congressmen are interested in getting reelected-indeed, in their role here as abstractions, interested in nothing else. " (footnote omitted)
216. Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L.J. 1119, 1125 (2011) ("There is nary a political scientist who does not believe that the electoral connection-whether viewed as a rosy aim to further the public good or a craven attempt to extract interest-group rents-is Congress's most distinctive feature. ").
217. See, e.g., Richard F. Fenno, Jr., Congressmen in Committees 1 (1973) (describing the goals espoused by representatives as "re-election, influence within the House, and good public policy, " as well as private gain and career success after leaving the House (emphasis omitted)
218. David W. Rohde, Parties and Leaders in the Postreform House 40 (1991) (same).
219. R. Douglas Arnold, The Logic of Congressional Action, at 5. (1990) ("Although [members of Congress] are not single-minded seekers of reelection, reelection is their dominant goal. ")
220. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 144 (1999).
221. see also Neal Devins, Party Polarization and Congressional Committee Consideration of Constitutional Questions, 105 Nw. U. L. Rev. 737, 762 (2011) ("Although each of the 535 members of Congress has a stake in Congress's institutional authority to independently interpret the Constitution, parochial interests overwhelm this collective good. ").
222. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 956 (2005)
223. see also Neal Devins, Presidential Unilateralism and Political Polarization: Why Today's Congress Lacks the Will and the Way to Stop Presidential Initiatives, 45 Willamette L. Rev. 395, 399-400 (2009) ("[T]he President's personal interests and the presidency's institutional interests are often one and the same. ").
224. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 136 (1999).
225. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 956-57 (2005)
226. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 145 (1999).
227. see also Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 399 (2005) ("Thanks both to the singularity of the office and the power to execute, Presidents are well positioned to advance their policy agenda and, in so doing, expand the power of the presidency.").
228. See generally Gregory L. Hager & Jeffery C. Talbert, Look for the Party Label: Party Influences on Voting in the U.S. House, 25 Legis. Stud. Q. 75 (2000) (arguing that party membership influences congressional voting patterns even after controlling for ideological preferences)
229. Samuel C. Patterson & Gregory A. Caldeira, Party Voting in the United States Congress, 18 Brit. J. Pol. Sci. 111 (1988) (noting that while aggregate levels of party voting in Congress vary according to time and congressional chamber, partisan cleavages play a significant role in legislative life).
230. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 2324-25 (2005).
231. Douglas Kriner, Can Enhanced Oversight Repair "The Broken Branch"?, 89 B.U. L. Rev. 765, 784 (2009).
232. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 959 (2005). (noting that the President and Congress will battle over power "only when they have been pressed into the service of someone's independent political agenda, not because of anyone's intrinsic interest in the power of the institutions themselves").
233. The House and Senate each have counsel's offices that engage in constitutional analysis, but they do not function like OLC. See, e.g., James E. Fleming, The Constitution Outside the Courts, 86 Cornell L. Rev. 215, 247 n.158 (2000)
234. (reviewing Mark Tushnet, Taking the Constitution Away from the Courts (1999) ("The Senate and House also have their own offices of legal counsel-the Office of Senate Legal Counsel and the General Counsel to the House-but those bodies (more than the executive branch's Office of Legal Counsel) mainly engage in constitutional review in a defensive posture, after legislation has been passed and is being challenged in litigation. "). For a discussion of those offices
235. see Louis Fisher, Constitutional Analysis by Congressional Staff Agencies, in Congress and the Constitution 64, 75-81 (Neal Devins & Keith E. Whittington eds., 2005). For a discussion of the differences between executive branch and congressional participation in litigation
236. see Amanda Frost, Congress in Court, 59 UCLA L. Rev. 914 (2012). It is possible that, owing to senators' longer terms in office, the Senate has a somewhat greater institutional focus than the House. These longer terms, however, do not remove the collective action problems, the party politics, or the different expectations that the public has about the presidency.
237. See, e.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound at 27 (2010), ("Much of what presidents do is arbitrate internal conflicts among executive departments and try to aggregate competing views into coherent policy over time. ")
238. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2263 (2001) ("[B]ureaucracy also has inherent vices (even pathologies), foremost among which are inertia and torpor. ").
239. Eric A. Posner & Adrian Vermeule, The Executive Unbound at 27 (2010)
240. Neomi Rao, Public Choice and International Law Compliance: The Executive Branch Is a "They, " Not an "It, " 96 Minn. L. Rev. 194, 197 (2011).
241. See generally Kagan, Eric A. Posner & Adrian Vermeule, The Executive Unbound at 2281-319 (2010) (describing tools used by President Clinton to exercise control over the executive bureaucracy).
242. See, e.g., Posner & Vermeule, The Credible Executive, Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 867-68 (2005) ("By tying policies to institutional mechanisms that impose heavier costs on ill-motivated actors than on well-motivated ones, the well-motivated executive can credibly signal his good intentions and thus persuade voters that his policies are those that voters would want if fully informed. "). For an analysis of one kind of voluntarily imposed constraint on executive power
243. see generally Jon D. Michaels, The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond, 97 Va. L. Rev. 801 (2011) (discussing two cases where the Executive imposed constraints upon itself with respect to intelligence technologies and foreign investment).
244. See Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. at 637 (2010).
245. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 141 (1999).
246. 462 U.S. 919, 959 (1983). Despite Chadha, Congress still frequently includes legislative veto provisions in statutes, even though these provisions are presumably not judicially enforceable. When signing bills that contain these provisions, Presidents often issue signing statements challenging the constitutionality of the veto provisions. See Louis Fisher, Cong. Research Serv., RS22132, Legislative Vetoes After CHADHA 5 (2005), available at http://www.loufisher.org/docs/lv/4116.pdf.
247. See David Epstein & Sharyn O'Halloran, Delegating Powers 11 (1999)
248. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. at 887 (2008).
249. Douglas Kriner, Can Enhanced Oversight Repair "The Broken Branch"?, 89 B.U. L. Rev. at 769-71 (2009).
250. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. at 953-54 (2005)
251. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 141-43 (1999).
252. See Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. at 341 (2006). In some U.S. states, by contrast, legislatures face a single subject rule when enacting bills.
253. See, e.g., Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803, 812 (2006).
254. See, e.g., Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. p. 436 (2006).
255. See Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 734-35 (2012)
256. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. at 145 (1999).
257. See Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. at 742, 753 (2012)
258. Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev. 573, 594, 604 (2008).
259. See, e.g., Douglas Kriner & Liam Schwartz, Divided Government and Congressional Investigations, 33 Legis. Stud. Q. 295, 297 (2008) (finding that congressional investigative activity is higher under divided government than under unified government).
260. For the Congressional Research Service's extensive Oversight Manual, which for over thirty years has staked out Congress's positions in this area, see Frederick M. Kaiser et al., Cong. Research Serv., RL30240, Congressional Oversight Manual (2011), available at http://www.fas.org/sgp/crs/misc/RL30240.pdf.
261. See Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. at 775-76 (2012), ("[I]t is clear that there are always at least some legislators who act from a genuine desire to promote the public good" and thus have "an incentive to make vigorous, but judicious, use of [soft law] congressional powers.... ").
262. Congress acted more systematically to rein in executive authority in the early 1970s, through the enactment of important framework statutes such as the War Powers Resolution (directing the President to consult with Congress and obtain authorization before introducing the armed forces into hostilities), the Congressional Budget and Impoundment Control Act of 1974 (asserting congressional control over the federal budgetary process), and the Case-Zablocki Act (requiring presidential reporting of executive agreements). See Richard H. Pildes, Law and the President, 125 Harv. L. Rev. 1381, 1383 (2012)
263. (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound at 27 (2010) ("Only in the 1970s did this general thrust in the direction of enhanced presidential power confront more complex terrain. "). But overall-and in contrast to earlier periods in U.S. history-the trend since the beginning of the Cold War has been away from congressional checks on presidential power.
264. See, e.g., Jack Goldsmith, Power and Constraint 30-33 (2012).
265. See, e.g., Richard H. Pildes, Law and the President, 125 Harv. L. Rev. at 1381 (2012), ("It is widely recognized that the expansion of presidential power from the start of the twentieth century onward has been among the central features of American political development. ").
266. See generally Arthur M. Schlesinger, Jr., The Imperial Presidency (1973).
267. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers 222-23 (2007).
268. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers 222 (2007).
269. Pub. L. No. 93-148, § 2(c), 87 Stat. 555, 555 (1973) (codified at 50 U.S.C. § 1541(c) (2006).
270. In 1949, after a long history of settlement of claims against foreign nations by the executive branch, Congress enacted a claims settlement statute that set forth a procedure pursuant to which funds resulting from future settlements could be distributed. In Dames & Moore v. Regan, 453 U.S. 654, 680 (1981), the Court concluded that, "[b]y creating a procedure to implement future settlement agreements, Congress placed its stamp of approval on such agreements. "
271. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring).
272. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 637-38 (1952).
273. See Memorandum from Alberto R. Gonzales, Att'y Gen., to Hon. William H. Frist, Majority Leader, U.S. Senate, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 7 (Jan. 19, 2006), available at http://www.justice.gov/opa /whitepaperonnsalegalauthorities.pdf ("[A] consistent understanding has developed that the President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes.").
274. See, e.g., February 2, 2006 Letter from Scholars and Former Government Officials to Congressional Leadership in Response to Justice Department Whitepaper of January 19, 2006, 81 Ind. L.J. 1415, 1419 (2006) ("[T]o say that a President may undertake certain conduct in the absence of contrary congressional action does not mean that he may undertake that action where Congress has addressed the issue and disapproved of executive action. ")
275. cf. Neal Katyal & Richard Caplan, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 Stan. L. Rev. 1023, 1027 (2008) ("[T]oday's surveillance program, in many key respects, looks strikingly similar to the one blessed by [President Roosevelt].... [W]e believe that the facts reveal that both programs were illegal. ").
276. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
277. See Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev. at 603 (2008). (suggesting that nonbinding congressional resolutions and other forms of soft law are "better indicator[s] of legislative views than legislative inaction").
278. U.S. Const. art. II, § 2, cl. 2.
279. See generally Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. p. 474. (1992).
280. See generally Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239 (1992).
281. See generally William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67 (1988) (arguing that legislative inaction should rarely be given much, if any, weight in divining actual collective will or desire of the enacting legislature).
282. Note, moreover, that when members of Congress succeed in using soft law and related tools to constrain executive action, the result will be the absence of an exercise of executive power. Such absences need to be taken into account when defining the scope of the executive practice to which Congress can be said to have acquiesced.
283. 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring in the judgment).
284. See Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. at 1712 (2011) (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010) (discussing this aspect of Medellín). n.93 (describing the role of OLC bill comments in the interaction between an administration and Congress over pending legislation)
285. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 711-12 (2005) (describing the bill comment process).
286. The Constitutional Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 126 (1996).
287. See generally Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307, 313-14 (2006).
288. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive, at 14-16, 33-38 (2008).
289. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive, at 27 ("Only if there has been presidential acquiescence in a departure from the unitary executive could such a practice justifiably be regarded as an established part of the structure of our government. "). Other scholars who have examined the Founding materials have contested Calabresi and Yoo's version of the original understanding.
290. See, e.g., Martin S. Flaherty, Relearning Founding Lessons: The Removal Power and Joint Accountability, 47 Case W. Res. L. Rev. 1563 (1997)
291. Victoria F. Nourse & John P. Figura, Toward a Representational Theory of the Executive, 91 B.U. L. Rev. 273 (2011) (book review). We take no position here on who has the better of the argument.
292. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive, at 25-26 (2008).
293. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive, at 25.
294. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 8.
295. Myers v. United States, 272 U.S. 52, 171 (1926).
296. See Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev., at 134 (1984) (arguing that "the custom in question must consist of acts; mere assertions of authority to act are insufficient").
297. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010)
298. see also Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 556-57 (1977) (Rehnquist, J., dissenting) ("[T]he principle of separation of powers... may not be signed away by the temporary incumbent of the office which it was designed to protect. ")
299. Al-Bihani v. Obama, 619 F.3d 1, 47 n.26 (D.C. Cir. 2010) (Kavanaugh, J., concurring in denial of rehearing en banc) ("In court, the Executive Branch does not always press the most expansive possible argument in support of its legal authority-whether for reasons of policy, politics, litigation strategy, international concern, or otherwise. Courts must be careful before enshrining such concessions into binding judicial precedent protected by stare decisis that a future Executive could not readily undo. ").
300. Merrill, Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev., at 513 (2006) (emphasis omitted).
301. Merrill, Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. at 515, 518-19 (discussing the virtues of constitutional interpretation that "preserve[s] continuity with the past").
302. See, e.g., Lon L. Fuller, The Morality of Law 81 (1964) (discussing the importance of "congruence between official action and the law")
303. see also Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive, at 4 (2008) ("[A] foundational principle of law is that to some degree what the law is on the books is determined by what it actually is in practice. ")
304. Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev. 731, 790 (2010) ("Any acceptable theory of constitutional adjudication should... have two qualities: (1) It must be normatively acceptable and (2) It must be able to account for most (though not necessarily every last bit) of the current constitutional order. ").
305. See H.L.A. Hart, The Concept of Law 94-99 (2d ed. 1994) (discussing secondary "rules of recognition")
306. see also, e.g., Jules L. Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139, 148 (1982) (discussing legal positivism's preoccupation with official practice)
307. Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev., at 791 (2010) ("That law is what officials accept and apply as law is not a new insight.... ")
308. Stefan Sciaraffa, The Ineliminability of Hartian Social Rules, 31 O.J.L.S. 603, 604 (2011) (discussing "the Hartian insight that customary practice is an ineliminable and fundamental feature of legal systems"). Of course, debates among legal philosophers over the nature and basis of law are complex and ongoing, and we do not mean to enter those debates here. Instead, our point is merely to identify another reason why an interpreter might accord significance to historical practice in this context.
309. Cf. INS v. Chadha, 462 U.S. 919, 967-68 (1983) (White, J., dissenting) (arguing that the Court's decision to invalidate the "legislative veto" was insensitive to this problem).
310. 343 U.S. 579, 654 (1952) (Jackson, J., concurring).
311. 343 U.S. 579, 654 (1952) (Jackson, J., concurring). p. 454.
312. See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 329 (1936) (explaining, in declining to invalidate a congressional delegation of foreign affairs authority to the President, that "[t]he uniform, long-continued and undisputed legislative practice" of making broad delegations to the President in foreign affairs "rests upon an admissible view of the Constitution which, even if the practice found far less support in principle than we think it does, we should not feel at liberty at this late day to disturb"). We note, however, a tension between judicial review and a flexible, practice-based approach to law. Allowing the law to develop through practice can make it easier for it to respond over time to changing conditions. Yet judicial intervention poses the risk of freezing the evolution of customary practice, both by creating binding precedent and by serving as a new focal point around which the political branches will conduct their relations.
313. Cf. Thompson v. Oklahoma, 487 U.S. 815, 854-55 (1988) (O'Connor, J., concurring in the judgment) (noting parallel issue in connection with the Supreme Court's application of the "evolving standards of decency" test in Eighth Amendment jurisprudence). That said, judicial review has its own potential advantages, including the ability to clarify the law, protect third parties, and respond to potential inefficiencies in the way that the practice is being generated.
314. See, e.g., Memorandum from David J. Barron, Acting Assistant Att'y Gen., Office of Legal Counsel, to Joan E. Donoghue, Acting Legal Adviser, Dep't of State, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act 8 (June 1, 2009) [hereinafter Barron Memorandum], available at http://www.justice.gov/olc/2009/section7054.pdf.
315. See, e.g., Memorandum from David J. Barron, Acting Assistant Att'y Gen., Office of Legal Counsel, to Joan E. Donoghue, Acting Legal Adviser, Dep't of State, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act 8 (June 1, 2009) [hereinafter Barron Memorandum], available at http://www.justice.gov/olc/2009/section7054.pdf. pp. 452-53.
316. See, e.g., David J. Barron, Acting Assistant Att'y Gen., Office of Legal Counsel, to Joan E. Donoghue, Acting Legal Adviser, Dep't of State, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act 8, at 8 (June 1, 2009) [hereinafter Barron Memorandum], available at http://www.justice.gov/olc/2009/section7054.pdf. ("[T]his Office has 'repeatedly objected on constitutional grounds to Congressional attempts to mandate the time, manner and content of diplomatic negotiations,' including in the context of potential engagement with international fora." (quoting Memorandum from Walter Dellinger, Assistant Att'y Gen., Office of Legal Counsel, to Alan Kreczko, Legal Adviser, Nat'l Sec. Council, Re: WTO Dispute Settlement Review Commission Act 3 (Feb. 9, 1995)
317. see also id. at 8-9 & nn.9-11 (discussing similar executive branch precedents from the Carter, Reagan, George H.W. Bush, and Clinton Administrations).
318. See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev., at 1500-01 (2010). (discussing and defending this practice).
319. For an overview of the "hostilities" issue as applied to the Libya operation, see generally Trevor W. Morrison, "Hostilities, " 1 J.L. (1 Pub. L. Misc.) 233 (2011).
320. Letter from Monroe Leigh, Legal Adviser, Dep't of State, and Martin R. Hoffmann, Gen. Counsel, Dep't of Def., to Clement J. Zablocki, Chairman, Subcomm. on Int'l Sec. & Scientific Affairs of the H. Comm. on Int'l Relations (June 3, 1975), reprinted in War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident: Hearings Before the Subcomm. on Int'l Sec. & Scientific Affairs of the H. Comm. on Int'l Relations, 94th Cong. 39 (1975).
321. See Libya and War Powers: Hearing Before S. Comm. on Foreign Relations, 112th Cong. 14 (June 28, 2011) [hereinafter Libya Hearings] (statement of Harold Hongju Koh, Legal Adviser, Dep't of State).
322. See supra section I.B.1, pp. 424-28.
323. See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev., at 1455-56. (2010).
324. Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. at 1497-1504 (arguing that OLC appropriately accords special precedential weight to its opinions addressing executive power issues, especially when others in the executive branch have acted in reliance on those opinions)
325. see also Powell, Dames & Moore v. Regan, 453 U.S., at 536 (1981), at 536 ("From an executive branch perspective, therefore, presidential assertions of authority, and executive branch legal opinions interpreting the Constitution, are legal authorities that shape the contours within which lawyers should address constitutional issues-especially in the areas of foreign affairs and national security where there is relatively little judicial precedent. ").
326. Koh, Dames & Moore v. Regan, 453 U.S., at 70 (1981) ("[A]ccommodations between two or more branches... carry greater normative weight than self-serving justifications that one branch may offer, without another branch's endorsement, to defend its own actions as constitutional. ").
327. For somewhat similar reasons, the Supreme Court has stated that, when interpreting a federal statute administered by an administrative agency, it "will normally accord particular deference to an agency interpretation of 'longstanding' duration. " Barnhart v. Walton, 535 U.S. 212, 220 (2002) (quoting N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522 n.12 (1982).
328. Cf. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1233-34 (2006) (describing certain Supreme Court uses of the canon of constitutional avoidance to resist legislation potentially stripping federal courts of jurisdiction, and arguing that, "[i]f it is permissible for courts to employ avoidance for such [self-protective] purposes, it seems appropriate to grant the executive branch that option as well").
329. See Harold H. Bruff, Bad Advice: Bush's Lawyers in the War on Terror 81 (2009) ("This reliance on the judicial principle of stare decisis [by OLC] constrains decision and gives opinions a life beyond the political administration in which they are generated, creating a body of law within the executive branch that endures. ")
330. cf. Stuart Minor Benjamin, Bootstrapping, Law & Contemp. Probs., Summer 2012, at 115, 130 ("[O]nce they have some ability to shape their agenda and some ability to exercise volition in reaching their conclusions, actors have the ability to aggrandize their power through bootstrapping. The degree of that ability differs for Justices versus members of Congress and the President, but it is far from clear that this difference in degree translates into a dispositive difference in the approach one should take to their bootstrapping. ").
331. U.S. Const. art. I, § 8, cl. 2.
332. U.S. Const. art. II, § 2, cl. 1.
333. See, e.g., Spiro, David J. Bederman, Custom as a Source of Law, at 1355 (2010) ("Ultimately, war powers law does not lend itself to refined parchment solutions. It is rather the 'court of history,' an accretion of interactions among the branches, that gives rise to basic norms governing the branches' behavior in the area. ")
334. Stromseth, Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev., at 873 (1984) ("Arguments invoking historical practice play... a central role in modern debates over war powers.... ").
335. See, e.g., Ely, David J. Bederman, Custom as a Source of Law, at 3 (2010) (arguing that the original understanding of the Constitution was that "all wars, big or small, 'declared' in so many words or not... had to be legislatively authorized" (footnote omitted)
336. Fisher, Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev., at 4 (1984) ("On numerous occasions the delegates to the constitutional convention emphasized that the power of peace and war... would not be given to the President. ")
337. Francis D. Wormuth & Edwin D. Firmage, To Chain the Dog of War 18 (2d ed. 1989) (discussing the debate over the Declaration of War Clause at the Constitutional Convention and recognizing that "[t]he power to initiate war was left to Congress")
338. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 679 (1972) (describing the drafting of the Declaration of War Clause and noting that "war-making fell almost automatically to Congress")
339. William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L. Rev. 695, 699 (1997) (offering "an explanation for why the Founders would have wanted Congress alone to have the power to start war").
340. See generally Henry P. Monaghan, Presidential War-Making, 50 B.U. L. Rev. 19, 31 (1970)
341. Robert F. Turner, Truman, Korea, and the Constitution: Debunking the "Imperial President" Myth, 19 Harv. J.L. & Pub. Pol'y 533 (1996)
342. John C. Yoo, Applying the War Powers Resolution to the War on Terrorism, 6 Green Bag 2d 175 (2003).
343. Henry P. Monaghan, Presidential War-Making, 50 B.U. L. Rev., at 31 (1970).
344. See, e.g., Louis Henkin, War Powers "Short of War, " 50 U. Miami L. Rev. 201, 204 (1995) ("History shows that Presidents have exercised authority to engage in 'little wars,' to deploy forces 'short of war,' in a number of cases-a goodly number-of differing importance. ").
345. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2060 (2005) (listing military engagements in which Congress authorized the use of military force without declaring war)
346. Robert F. Turner, Truman, Korea, and the Constitution: Debunking the "Imperial President" Myth, 19 Harv. J.L. & Pub. Pol'y, at 568-69 (1996) (noting that "congressional leaders unanimously supported [Truman's] actions").
347. 50 U.S.C. §§ 1541-1548 (2006).
348. Id. § 1544. The sixty-day limit can be extended to ninety days under certain circumstances. Id. 222 See, e.g., Krass Memorandum, supra note 3, at 8-9 ("By allowing United States involvement in hostilities to continue for 60 or 90 days, Congress signaled in the [War Powers Resolution] that it considers congressional authorization most critical for 'major, prolonged conflicts such as the wars in Vietnam and Korea,' not more limited engagements. " (quoting Deployment of U.S. Armed Forces into Haiti, 18 Op. O.L.C. 173, 176 (1994)
349. Deployment into Haiti, 18 Op. O.L.C. at 175-76 ("[T]he structure of the War Powers Resolution ('WPR') recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces.... ")
350. cf. Jack Goldsmith, War Power: The President's Campaign Against Libya is Constitutional, Slate (Mar. 21, 2011, 6:48 PM), http://www.slate.com/id/2288869/ ("The WPR...acknowledge[s] an inherent presidential power to use military force within that [sixty-day] window.").
351. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2059-2060 (2005) (listing military engagements in which Congress authorized the use of military force without declaring war)
352. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev., at 389-90 (2006).
353. See, e.g., Fisher, Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev., at 44 (1984) ("Although the Constitution does not expressly direct the President to protect American life and property in foreign countries, Presidents have sent U.S. forces abroad for that purpose on many occasions. ")
354. John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, Law & Contemp. Probs., Autumn 1993, at 317 ("[T]here is substantial historical precedent for unilateral executive action in this regard.... ")
355. Jane C. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 Yale L.J., at 882 (1996) ("The second category of historical practice that meets the Frankfurter standard, in my judgment, is the longstanding presidential practice of using limited force to rescue American citizens abroad whose lives are in imminent danger. ").
356. The authority to protect U.S. citizens abroad is not mentioned in section 2(c) of the War Powers Resolution, but some of the key congressional supporters of the Resolution later conceded that such an authority should have been included. See John Hart Ely, War and Responsibility (1993), at 117. Of course, there are sometimes debates about the scope of this authority.
357. In the few instances in recent years in which Congress has imposed funding cutoffs for U.S. military operations, such as in Somalia and Rwanda, it has included an exception for the protection of U.S. personnel and citizens. See Richard F. Grimmett, Cong. Research Serv., RS20775, Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments 3 (2007), available at http://assets.opencrs.com /rpts/RS20775_20070116.pdf.
358. See generally Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 Geo. Wash. L. Rev. 89, 107-20 (2008) (cataloguing Founding-era understandings of the different functions of a declaration of war).
359. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2061-2062 (2005) (listing military engagements in which Congress authorized the use of military force without declaring war)
360. The proper characterization of past uses of force, then, is a specific example of the general issue of scope noted in section I.A. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. pp. 423-24 (2005). For a list of hundreds of instances in which the United States has used military force abroad since the Founding, see Richard F. Grimmett, Cong. Research Serv., R41677, Instances of Use of United States Armed Forces Abroad, 1798-2010 (2011), available at http://www.fas.org/sgp/crs/natsec /R41677.pdf.
361. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
362. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf. at 7 (quoting Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980) (internal quotation mark omitted).
363. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf. at 7 (quoting Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980) (internal quotation mark omitted).
364. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf. at 7 (quoting Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980) (internal quotation mark omitted).
365. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 8
366. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 8 (describing such a conflict as "a planned military engagement that constitutes a 'war' within the meaning of the Declaration of War Clause").
367. Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, to the Att'y Gen., Authority to Use Military Force in Libya 7, 14 (Apr. 1, 2011) [hereinafter Krass Memorandum], available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf., at 7.
368. A bill that would have authorized the campaign was defeated in the House of Representatives on a tie vote of 213-213. See Campbell v. Clinton, 203 F.3d 19, 20 (D.C. Cir. 2000). Somewhat similar opposition developed with respect to the Libya campaign, especially after the expiration of the War Powers Resolution's sixty-day period for obtaining congressional authorization. A resolution that would have authorized the Libyan operations was defeated in the House on a vote of 295-123, and a resolution that would have disallowed the use of ground forces in Libya passed the House on a vote of 268-145. See Richard F. Grimmett, Cong. Research Serv., RL33532, War Powers Resolution: Presidential Compliance 13, 14 (2012), available at http://www.fas.org/sgp/crs/natsec/RL33532.pdf.
369. Joint Resolution Regarding United States Policy Toward Haiti, Pub. L. No. 103-423, 108 Stat. 4358 (1994).
370. Statement on Signing Legislation on United States Policy on Haiti, 30 Weekly Comp. Pres. Doc. 2184 (Oct. 25, 1994).
371. For a criticism of OLC's Libya opinion on this and related grounds, see Michael J. Glennon, The Cost of "Empty Words": A Comment on the Justice Department's Libya Opinion, Harv. Nat'l Sec. J. F. (2011), http://harvardnsj.com/wp-content/uploads/2011/04/Forum_Glennon _Final-Version.pdf.
372. For a criticism of OLC's Libya opinion on this and related grounds, see Michael J. Glennon, The Cost of "Empty Words": A Comment on the Justice Department's Libya Opinion, Harv. Nat'l Sec. J. F. (2011), http://harvardnsj.com/wp-content/uploads/2011/04/Forum_Glennon _Final-Version.pdf. p. 463.
373. See Pub. L. No. 93-148, § 2(c), 87 Stat. 555, 555 (1973) (codified at 50 U.S.C. § 1541(c) (2006).
374. See Overview of the War Powers Resolution, 8 Op. O.L.C. 271, 274 (1984) ("The Executive Branch has taken the position from the very beginning that § 2(c) of the [War Powers Resolution] does not constitute a legally binding definition of Presidential authority to deploy our armed forces. ").
375. In 1995, the House of Representatives defeated, by a vote of 217-201, a bill that would have deleted most of the key elements of the Resolution. See Richard F. Grimmett, Cong. Research Serv., RL33532, War Powers Resolution: Presidential Compliance, at 23 (2012), available at http://www.fas.org/sgp/crs/natsec/RL33532.pdf.
376. For example, in its 2002 joint resolution approving the use of military force against Iraq, Congress stated that the resolution "is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution" and that "[n]othing in this joint resolution supersedes any requirement of the War Powers Resolution. " Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(c), 116 Stat. 1498, 1501.
377. See Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 196 (1980) ("The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. ")
378. See Libya and War Powers: Hearing Before S. Comm. on Foreign Relations, 112th Cong. 14 (June 28, 2011), at 53 (statement of Harold Hongju Koh, Legal Adviser, Dep't of State) (confirming that the position expressed in the 1980 OLC memorandum "continues to reflect the views of the executive branch"). On other occasions executive officials have been more equivocal. See, e.g., H. Con. Res. 82, Directing the President to Remove Armed Forces from Operations Against Yugoslavia, and H.J. Res. 44, Declaring War Between the United States and Yugoslavia: Markup Before the H. Comm. on Int'l Relations, 106th Cong. 32-33 (1999) (statement of Barbara Larkin, Assistant Sec'y of State) ("This Administration, like previous Administrations, takes the view that the President has broad authority as Commander-in-Chief, and under his authority to conduct foreign relations, to authorize the use of force in the national interest. ")
379. See Libya and War Powers: Hearing Before S. Comm. on Foreign Relations, 112th Cong. 14 (June 28, 2011), at 37 (statement of Michael Matheson, Principal Deputy Legal Adviser, Dep't of State) ("This Administration has not taken a formal stance on the constitutionality of the 60-day provision to this point, but has taken the view that it is unwise and should be repealed. "). On still other occasions executive officials have seemed to oppose the idea that the Resolution lawfully constrains the President's authority. See, e.g., Yoo, supra note 216, at 175 ("[T]he President's power to engage U.S. Armed Forces in military hostilities is not limited by the War Powers Resolution. ").
380. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers, at 23 (2007).
381. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers, at 29 (2007). (suggesting that Congress can "us[e] the media to air arguments against military action, and by underscoring the risks involved, [it] may temper any rally effects the president would otherwise enjoy"). A particularly vivid example, relating not to the decision whether to commence a military operation but to the decision whether and how to continue one, is Senator Gravel's decision, before the Supreme Court handed down its decision in the Pentagon Papers case, to release to the public 4100 pages of the Pentagon Papers-substantially more than the newspapers ever ultimately published.
382. See Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev., at 745-50 (2012) (discussing this episode).
383. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers, at 222 (2007). ("Modern presidents consistently heed the distinctly political threat posed by large, cohesive, and opposing congressional majorities.... ").
384. U.S. Const. art. II, § 2, cl. 2.
385. In the first fifty years of its constitutional history, the United States concluded sixty treaties and only twenty-seven executive agreements. Between 1939 and 1989, however, it concluded over 11,000 executive agreements and only about 700 treaties. See Cong. Research Serv., 106th Cong., Treaties and Other International Agreements: The Role of the United States Senate 39 (Comm. Print 2001) [hereinafter CRS Treaty Study].
386. The other two types of executive agreements are those concluded by the President pursuant to authority granted in an Article II treaty, and "sole executive agreements" concluded by the President based on his own constitutional authority. Congressional-executive agreements are by far the most common type of executive agreement. See R. Roger Majak, Cong. Research Serv., 95th Cong., International Agreements: An Analysis of Executive Regulations and Practices 22 (Comm. Print 1977).
387. See Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239. In arguing many years later that the postal agreements were constitutional, then-Solicitor General William Howard Taft reasoned that, "where long usage, dating back to a period cotemporary with the adoption of the Constitution, sanctions an interpretation of that instrument different from that which would be reached by the ordinary rules of construction were the question a new one, the usage will be followed. " Postal Conventions with Foreign Countries, 19 Op. Att'y Gen. 513, 515 (1890).
388. See Jeanne J. Grimmett, Cong. Research Serv., 97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties 2 (2004), available at http://fpc.state.gov/documents/organization/35430.pdf
389. Detlev F. Vagts, Editorial Comment, The Exclusive Treaty Power Revisited, 89 Am. J. Int'l L. 40, 41 (1995).
390. See CRS Treaty Study, Cong. Research Serv., 106th Cong., Treaties and Other International Agreements: The Role of the United States Senate, at 40-41 (Comm. Print 2001).
391. See, e.g., Made in the USA Found. v. United States, 242 F.3d 1300, 1319-20 (11th Cir. 2001) (holding that "in the context of international commercial agreements such as NAFTA-given the added factor of Congress's constitutionally-enumerated power to regulate commerce with foreign nations, as well as the lack of judicially manageable standards to determine when an agreement is significant enough to qualify as a 'treaty'-the issue of what kinds of agreements require Senate ratification pursuant to the Art. II, § 2 procedures presents a nonjusticiable political question").
392. Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 233 (1994).
393. Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. at 234 (1994).
394. see also Memorandum from Walter Dellinger, Assistant Att'y Gen., Office of Legal Counsel, to Ambassador Michael Kantor, U.S. Trade Representative, Re Whether the GATT Uruguay Round Must be Ratified as a Treaty (July 29, 1994), reprinted in 140 Cong. Rec. 19,492, 19,494 n.5 (1994) ("[T]he longstanding practice of regarding trade agreements as subject to the ordinary procedures of bicameral passage and presentment to the President offers significant support for the conclusion that it is sufficient here. ").
395. Restatement (Third) of the Foreign Relations Law of the United States § 303, cmt. e (1987).
396. Louis Henkin, Foreign Affairs and the United States Constitution 132 (2d ed. 1996). For criticism of this tendency, at 217 (footnote omitted). In a footnote, Henkin added the qualification that "doubts might spark if it were used for an agreement traditionally dealt with by treaty and that seems to ask for the additional 'dignity' of a treaty, for example, a major alliance or disarmament arrangement. " Id. n. *.
397. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 805 (1995).
398. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. at 873-74, 896. (1995).
399. For articulations of the constitutional moments theory, see 1 Bruce Ackerman, We the People: Foundations 266-94 (1991)
400. Bruce Ackerman, We the People: Transformations 3-31 (1998).
401. For critiques of the theory, see, for example, Richard A. Posner, Overcoming Law 215-28 (1995)
402. Michael J. Gerhardt, Ackermania: The Quest for a Common Law of Higher Lawmaking, 40 Wm. & Mary L. Rev. 1731 (1999) (book review)
403. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 Stan. L. Rev. 759 (1992) (book review)
404. Suzanna Sherry, The Ghost of Liberalism Past, 105 Harv. L. Rev. 918 (1992) (book review).
405. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., at 897 (1995). (recognizing this burden and contending that, "[o]ver the next half-century, Congress consolidated these precedents by passing statutes that used the congressional-executive agreement as a tool for the control of foreign policy")
406. Letter from Bruce Ackerman, Professor, Yale Law Sch., and David Golove, Professor, Univ. of Ariz. Coll. of Law, to President William Clinton 3 (Sept. 21, 1994), quoted in Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1280 (1995) ("After a half-century of successful use of the Congressional-Executive Agreement, it is far too late to question Congress' powers under Article [I]. ").
407. See Tribe, Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., at 1223-28 (1995).
408. Tribe, Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., at 1280 (1995).
409. Tribe, Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., at 1281 (1995).
410. see also GATT Implementing Legislation: Hearings on S. 2467 Before the S. Comm. on Commerce, Sci., & Transp., 103d Cong. 299 (1994) (statement of Laurence H. Tribe, Professor, Harvard Law Sch.) ("What the text of the Treaty Clause will not permit cannot be validated by so-called congressional 'precedent.'").
411. Memorandum from Laurence H. Tribe, Professor, Harvard Law Sch., to Walter Dellinger et al., The Constitutional Requirement of Submitting the Uruguay Round as a Treaty 6-7 (Oct. 5, 1994) (on file with the Harvard Law School Library).
412. See, e.g., Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev., at 996-1002 (2001) (contending that the post-World War II practice does not support full interchangeability for agreements in the areas of arms control and human rights)
413. John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 Mich. L. Rev. 757, 800 (2001) ("Customary practice indicates that the political branches have observed discernable lines in the use of these instruments of national policy. ").
414. See Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1252-54 (2008).
415. See Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. at 1239-40 (2008).
416. See Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. at 1306 (2008).
417. Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. at 1241 (2008). However, Hathaway also concludes that Article II treaties are still required for issues that fall outside Congress's Article I authority. See id. at 1339. Under the Supreme Court's decision in Missouri v. Holland, 252 U.S. 416 (1920), Article II treaties may regulate issues Congress cannot reach by legislation. Like a number of other scholars, Hathaway assumes that this decision does not apply to congressional-executive agreements, which are premised in part on Congress's Article I authority and do not involve the same process protection for federalism provided by the Article II requirement of supermajority senatorial consent.
418. See Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J., at 1339 (2008).
419. see also, e.g., Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1442 (2001) ("If Missouri v. Holland is correct that the treatymaking power exceeds Congress's lawmaking power, then treaties and congressional-executive agreements are not interchangeable. " (footnote omitted)
420. David Sloss, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963, 1995 (2003) ("[C]ongressionalexecutive agreements should be subject to the same judicially enforced federalism limitations as ordinary legislation. ").
421. Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 235 (1994).
422. Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. at 240 (1994).
423. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. at 908 (1995).
424. Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J., at 1353 (2008). (arguing that the Senate "relinquish[ed] its sole power to provide 'advice and consent' in favor of shared authority to approve congressional-executive agreements" when it "repeatedly and with little overt resistance" gave way to this practice in the last half century).
425. Even taking into account the Senate's filibuster practice, minority senators have greater ability to block Article II treaties than to block congressional-executive agreements. See id. at 1311-12 (noting that the filibuster carries political risks and pointing out that the seven-vote difference between the filibuster-proof majority and the Article II supermajority is not trivial).
426. See John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 Mich. L. Rev., at 804-05 (2001).
427. Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev., at 997 (2001) (quoting S. Exec. Rep. No. 102-22, at 81 (1991).
428. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., at 903 (1995).
429. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev., p. 446 (1995).
430. Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev., at 997-98 (2001) (observing that Ackerman and Golove's characterization of the senatorial statements "seems to substantially underestimate their significance, as more recent practice is bearing out").
431. The U.S. State Department authorizes the negotiation of international agreements on behalf of the United States pursuant to what is referred to as the "Circular 175 procedure" (named after a State Department Circular first issued in 1955). See Circular 175 Procedure, U.S. Dep't of State, http://www.state.gov/s/l/treaty/c175 (last visited Oct. 27, 2012)
432. U.S. Dep't of State, Foreign Affairs Manual §§ 720-727 (2006), available at http://www.state.gov/documents /organization/88317.pdf. In considering the proper form for an international agreement, the State Department looks to eight factors, including "[p]ast U.S. practice as to similar agreements" and "[t]he preference of the Congress as to a particular type of agreement." Foreign Affairs Manual, supra, § 723.3.
433. See Phillip R. Trimble & Jack S. Weiss, The Role of the President, the Senate and Congress with Respect to Arms Control Treaties Concluded by the United States, 67 Chi.-Kent L. Rev. 645, 661-62 (1991).
434. See Phillip R. Trimble & Alexander W. Koff, All Fall Down: The Treaty Power in the Clinton Administration, 16 Berkeley J. Int'l L. 55, 56 (1998).
435. See Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law 589-90 (4th ed. 2011).
436. Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law at 590 (excerpting a letter sent by Sen. Joseph R. Biden, Jr., and Sen. Jesse Helms, the chairman and ranking member, respectively, of the Senate Foreign Relations Committee, to Secretary of State Colin Powell).
437. See David E. Sanger, Clinton Says 'New Isolationism' Imperils U.S. Security, N.Y. Times, Oct. 15, 1999, at A1.
438. See David E. Sanger, Obama to Seek Ratification of Nuclear Test Ban Treaty, N.Y. Times, Feb. 19, 2010, at A13.
439. In the first fifty years of its constitutional history, the United States concluded sixty treaties and only twenty-seven executive agreements. Between 1939 and 1989, however, it concluded over 11,000 executive agreements and only about 700 treaties. See Cong. Research Serv., 106th Cong., Treaties and Other International Agreements: The Role of the United States Senate 39 (Comm. Print 2001) [hereinafter CRS Treaty Study]., at 26. In 1978, the Senate issued the International Agreements Consultation Resolution, which calls for the President to "have timely advice of the Committee on Foreign Relations" in determining "whether a particular international agreement should be submitted as a treaty. " S. Res. 536, 95th Cong. (1978).
440. See 22 U.S.C. § 7401(a) (2006) ("The United States shall not become a party to the International Criminal Court except pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States on or after November 29, 1999. ").
441. See, e.g., Lauren Morello, U.S. Pushes for Law of the Sea Ratification as New Arctic Mapping Project Begins, N.Y. Times (July 29, 2009), http://www.nytimes.com/cwire/2009/07/29 /29climatewire-us-pushes-for-law-of-the-sea-ratification-as-89174.html.
442. U.S. Const. art. II, § 2, cl. 2.
443. U.S. Const. art. II, § 4.
444. See 1 Annals of Cong. 370-71 (1789) (Joseph Gales ed., 1834) (providing that the Secretary was to be "appointed by the President, by and with the advice and consent of the Senate; and to be removable by the President").
445. 1 Annals of Cong. at 578-79.
446. See Fisher, David J. Bederman, Custom as a Source of Law, at 49-52 (2010).
447. 1 Annals of Cong. 580 (1789).
448. See, e.g., Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 40 (Harold C. Syrett ed., 1969)
449. Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006). Those taking this position would do so only for the removal of presidentially appointed officers, not those "inferior officers" whose appointment Congress has permissibly vested in the courts or department heads. See U.S. Const. art. II, § 2, cl. 2 ("[B]ut the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. "). The Supreme Court has confirmed that "[t]he authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. " Myers v. United States, 272 U.S. 52, 161 (1926).
450. See, e.g., John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev., at 1964-65 (2011) n.135 ("The debate said nothing about Congress's authority under the Necessary and Proper Clause to reserve for itself limited power to remove an official who performed some executive functions. ")
451. Peter L. Strauss, On the Difficulties of Generalization-PCAOB in the Footsteps of Myers, Humphrey's Executor, Morrison, and Freytag, 32 Cardozo L. Rev. 2255, 2259 (2011) ("[T]he decision of 1789, as such, was not to state explicitly [the President's] authority to remove, but rather to reject proposals that would have provided for senatorial participation in removal. ").
452. See, e.g., 1 Corwin on the Constitution 332 (Richard Loss ed., 1981) (discussing the variation of opinion among House members who voted in favor of the Decision of 1789)
453. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 41 (1997).
454. Tenure of Office Act of 1867, ch. 154, § 1, 14 Stat. 430, 430 (repealed 1887).
455. See Andrew Johnson, Veto Message to the Senate (Mar. 2, 1867), reprinted in 8 A Compilation of the Messages and Papers of the Presidents 3690 (James D. Richardson ed., 1917) [hereinafter Messages and Papers].
456. See A Compilation of the Messages and Papers of the Presidents 3502.
457. See 1 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors 6-10 (1868) (reciting articles of impeachment)
458. Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors 6-10 (1868) (reciting articles of impeachment) at 486-87, 496-98 (describing Senate vote).
459. See Grover Cleveland, Message to the Senate (Mar. 1, 1886), reprinted in 11 Messages and Papers, A Compilation of the Messages and Papers of the Presidents at 4960
460. see also Louis Fisher, Grover Cleveland Against the Senate, 7 Cong. Stud. 11 (1979)
461. Jerry L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 Yale L.J. 1362, 1383-84, 1462-63 (2010).
462. Act of July 12, 1876, ch. 179, § 6, 19 Stat. 78, 80-81.
463. 272 U.S. 52 (1926).
464. 272 U.S. at 161 (concluding that for Congress "to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power... would be... to infringe the constitutional principle of the separation of governmental powers").
465. 272 U.S. at 117 ("[A]s [the President's] selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible. ").
466. 272 U.S. at 175 ("This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ")
467. James Madison famously expressed the view that some aspects of constitutional meaning would be "liquidated" or "fixed" through early practice. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 2003) (stating that the meaning of the Constitution, like that of all laws, would be "liquidated and ascertained by a series of particular discussions and adjudications"). The Supreme Court has also endorsed this proposition. See Myers v. United States, 272 U.S. 52, 175 (1926) ("[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. ")
468. Myers, 272 U.S. at 163.
469. Myers, 272 U.S. at 163.
470. Myers, 272 U.S. at 166-70 (describing this resistance).
471. Myers, 272 U.S. at 172.
472. Myers, 272 U.S. at 170.
473. Myers, 272 U.S. at 171.
474. Bowsher v. Synar, 478 U.S. 714, 726 (1986).
475. See The Constitutional Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 170 (1996) ("Congress has the general authority to legislate in ways that in fact terminate an executive branch officer's or employee's tenure by defunding a position.... ")
476. Fisher, David J. Bederman, Custom as a Source of Law, at 80 (2010) ("Congress may remove an individual by abolishing the office. "). An early example (though outside the Article II context) is the Repeal Act of 1802, which terminated a number of federal judgeships previously created by the Judiciary Act of 1801 and in so doing removed the incumbents. See Repeal Act, ch. 8, 2 Stat. 132 (1802) (eliminating judgeships created by the Judiciary Act of 1801, ch. 4, § 21, 2 Stat. 89, 96).
477. Veto of a Bill Requiring Senate Confirmation of the Director and Deputy Director of the Office of Management and Budget, 1973 Pub. Papers 539 (May 18, 1973). Congress failed to override the veto. See 119 Cong. Rec. 16,773 (1973).
478. See Status of the Dir. of Cent. Intelligence Under the Nat'l Sec. Intelligence Reform Act of 2004, 29 Op. O.L.C., 2005 WL 3733197, at *6 (Jan. 12, 2005) ("Congress may not accomplish a removal through 'ripper' legislation, whereby Congress ostensibly abolishes an office while simultaneously recreating it and requiring a new appointment."); Constitutional Separation of Powers, 20 Op. O.L.C. at 171 (same).
479. Fisher, David J. Bederman, Custom as a Source of Law, at 83 (2010).
480. See, e.g., 15 U.S.C. § 41 (2006) (permitting the President to remove members of the Federal Trade Commission "for inefficiency, neglect of duty, or malfeasance in office").
481. 295 U.S. 602, 632 (1935).
482. 295 U.S. at 626.
483. 295 U.S. at 631.
484. 295 U.S. at 627-28.
485. 295 U.S. at 631-32. Even with respect to purely executive officials, Congress retains "a wide assortment of tools to force federal workers out of office, even at the top policymaking level. " Fisher, David J. Bederman, Custom as a Source of Law, at 80 (2010). These tools include the power to conduct oversight investigations, which can reveal incompetence or abuse and thus effectively force removal or resignation. See id. at 81.
486. 487 U.S. 654, 696-97 (1988).
487. See 28 U.S.C. § 596(a)(1) (2006). The Act provided for the appointment of an independent counsel by a special division of the U.S. Court of Appeals for the D.C. Circuit, upon application to it by the Attorney General. See id. §§ 592-593.
488. Morrison, 487 U.S. at 691. For a defense of a functional approach similar to the one the Court would ultimately adopt in Morrison, see Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 622-25 (1984).
489. Morrison, 487 U.S. at 691-92 (finding "no real dispute that the functions performed by the independent counsel are 'executive' in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch, " but stating "we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President").
490. The Constitutional Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 169 (1996).
491. It is noteworthy that although the Solicitor General as amicus curiae in Morrison argued against the constitutionality of the removal restrictions in the independent counsel statute, his brief "emphasize[d] that the removability of members of 'independent agencies' presents a quite different question" and identified numerous grounds upon which the Court might be able to distinguish the independent counsel from independent agencies. Brief for the United States as Amicus Curiae Supporting Appellees at 32-33, Morrison, 487 U.S. 654 (No. 87-1279), 1988 WL 1031600, at *32-33.
492. 130 S. Ct. 3138 (2010).
493. 130 S. Ct. at 3148.
494. 130 S. Ct. at 3148-49.
495. 130 S. Ct. at 3151.
496. Jack M. Beerman, An Inductive Understanding of Separation of Powers, 63 Admin. L. Rev. 467, 491 (2011)
497. see also Peter L. Strauss, On the Difficulties of Generalization-PCAOB in the Footsteps of Myers, Humphrey's Executor, Morrison, and Freytag, 32 Cardozo L. Rev., at 2274 (2011) (arguing that PCAOB confirms that "[i]n at least some settings, Congress can create elements of the executive branch whose heads are removable only 'for cause'").
498. See PCAOB, 130 S. Ct. at 3159-61. Even if it is true that "[t]he Court's logic [in PCAOB] can lead to the conclusion that even one layer of for-cause removal protection is unconstitutional, " Neomi Rao, A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB, 79 Fordham L. Rev. 2541, 2544 (2011), historical gloss is potentially significant precisely because it can alter what otherwise might seem to follow logically from conceptual constitutional reasoning.