Dream on: The obama administration's nonenforcement of immigration laws, the DREAM act, and the take care clause

Texas Law Review

Volumn 91, Issue 4, 2013, Pages 781-857

  Delahunty, Robert J ^a   Yoo, John C ^b  

^a UNIVERSITY OF ST THOMAS   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84875546731     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (454)

1. See Ross Douthat, All the President's Privileges, N.Y. Times, June 23, 2012, http://www.nytimes.com/2012/06/24/opinion/sunday/douthat-all-the-presidentsprivileges. html?_r=3&.& ("Obama campaigned as a consistent critic of the Bush administration's understanding of executive power....").
2. Charlie Savage, Barack Obama's Q&A, Bos. Globe, Dec. 20, 2007, http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/ (criticizing the Bush Administration's claim of plenary authority for the President).
3. See Melanie M. Marlowe, President Obama and Executive Independence, in The Obama Presidency in the Constitutional Order 47, 48 (Carol McNamara & Melanie M. Marlowe eds., 2011) (asserting that President Obama has been a "champion of the unitary executive" in areas such as "access to information, signing statements, control of administration, and national security").
4. For a study of the President's constitutional powers in those areas, see generally John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (2005).
5. See Robert J. Delahunty, War Powers Irresolution: The Obama Administration and the Libyan Intervention, Engage, Sept. 2011, at 122, 123, http://www.fed-soc.org/publications/ detail/engage-volume-12-issue-2-september-2011 ("As President Obama and other NATO leaders have repeatedly insisted, the Allies' overriding war aim is regime change....").
6. See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 22, 2012, http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-letobama-bypass-congress.html?pagewanted=all&_r=0 (noting that "[t]he Obama administration started down [the] path" of unilateral executive action "soon after Republicans took over the House of Representatives").
7. See generally Thomas E. Ricks, The Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006-2008 (2009).
8. See John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush 391-93 (2009) (explaining that because the Reagan Administration entered office with a Democrat-controlled House and was faced with a Democratcontrolled Senate after the 1986 election, it had an easier time changing policy "through a combination of executive orders, rule-making, and judicial appointments rather than new legislation").
9. The Administration has also made broad use of its discretionary powers under (its interpretations of) statutory laws. For example, it has "exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate" of the Affordable Care Act. Newland v. Sebelius, No. 1:12-cv-01123-JLK, slip op. at 14-15 (D. Colo. July 27, 2012).
10. Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't of Justice, to Selected U.S. Att'ys (Oct. 19, 2009), available at http://blogs.justice.gov/main/archives/192.
11. Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507 (2012).
12. Letter from James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (June 28, 2012), available at http://abcnews.go.com/ images/Politics/062812%20letter.pdf. The Department's decision seems likely to have been based on a 1984 memorandum of law to the Attorney General from the Justice Department's Office of Legal Counsel. Prosecution for Contempt of Congress of an Exec. Branch Official Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 102 (1984).
13. Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2006). The Pew Hispanic Center reported that as many as 1.4 million persons would be covered. Julia Preston & John H. Cushman Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. Times, June 15, 2012, http://www.nytimes.com/2012/06/16/us/us-to-stop-deporting-some-illegal-immigrants.html? pagewanted=all.
14. The name comes from a bill originally introduced into Congress in 2001, entitled the Development, Relief, and Education for Alien Minors Act, or the "DREAM Act, " S. 1291, 107th Cong. (2001). The most recent form of the DREAM Act was S. 952, 112th Cong. (2011).
15. Lamar Smith, Obama's Amnesty for Illegal Immigrants Is Against the Law, Christian Sci. Monitor, June 15, 2012, http:// www.csmonitor.com/Commentary/Opinion/2012/0615/Lamar-Smith-Obama-s-amnesty-for-illegalimmigrants-is-against-the-law.
16. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
17. The "amendment" was of course functional, not formal. Compare Clinton v. City of New York, 524 U.S. 417, 448-49 (1998) (striking down the Line Item Veto Act as an impermissible violation of the Presentment Clause).
18. See, e.g., Allen v. Wright, 468 U.S. 737, 754 (1984) ("This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court. ").
19. 521 U.S. 811 (1997).
20. We note that the Supreme Court seemingly intends to consider further aspects of "congressional standing" next Term. See United States v. Windsor, 133 S. Ct. 787 (2012) (mem.).
21. We note that the Supreme Court seemingly intends to consider further aspects of "congressional standing" next Term. See United States v. Windsor, 133 S. Ct. 787 (2012) (mem.).
22. We note that the Supreme Court seemingly intends to consider further aspects of "congressional standing" next Term. See United States v. Windsor, 133 S. Ct. 787 (2012) (mem.).
23. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2010).
24. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2010).
25. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2010).
26. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2010).
27. 8 U.S.C. § 1227 (2006).
28. 8 U.S.C. § 1227 (2006).
29. U.S. Immigration and Customs Enforcement, A Day in the Life of ICE Enforcement and Removal Operations, available at http://www.ice.gov/about/offices/ enforcement-removal-operations/.
30. Overview, ICE, http://www.ice.gov/about/overview/.
31. Overview, ICE, http://www.ice.gov/about/overview/.
32. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2090 (2008) (outlining "moral arguments" for legalizing the status of DREAMers, but suggesting a solution through legislative action).
33. Letter from Janet Napolitano, Sec'y, U.S. Dep't of Homeland Sec., to Senator Dick Durbin (Aug. 18, 2011), available at http://durbin.senate.gov/public/index.cfm/files/serve?File_id= 1180a746-c6d4-4fe9-b11f-cf9be50b6226.
34. see also Guillermo I. Martínez, 1.76 Million Dreamers Could Emerge from the Shadows, SunSentinel, Aug. 8, 2012, http://articles.sun-sentinel.com/2012-08-09/news/sfl-gmcol-dreamers-8912_1_dreamers-shadows application (reporting that while the government originally estimated that 800,000 DREAMers would be entitled to Deferred Action for Childhood Arrivals, the Migration Policy Institute estimates that there are as many as 1.76 million DREAMers).
35. see also Guillermo I. Martínez, 1.76 Million Dreamers Could Emerge from the Shadows, SunSentinel, Aug. 8, 2012, http://articles.sun-sentinel.com/2012-08-09/news/sfl-gmcol-dreamers-8912_1_dreamers-shadows application (reporting that while the government originally estimated that 800,000 DREAMers would be entitled to Deferred Action for Childhood Arrivals, the Migration Policy Institute estimates that there are as many as 1.76 million DREAMers).
36. Heidi Timmerman, Dare to DREAM: Generation 1.5 Access to Affordable Postsecondary Education, 39 W. St. U. L. Rev. 67, 76 (2011).
37. See President Barack Obama, The State of the Union (Jan. 25, 2011), available at http://www.whitehouse.gov/the-press-office/2011/01/25/remarks-president-state-union-address (proclaiming the need to stop deporting talented young people that have been educated in the United States).
38. See Elisha Barron, Recent Development, The Development, Relief, and Education for Alien Minors (DREAM) Act, 48 Harv. J. on Legis. 623, 632-37 (2011) (summarizing the failed attempts to enact various versions of the DREAM Act from 2001 to 2011).
39. Carl Hulse, Taking Control, G.O. P Overhauls Rules in House, N.Y. Times, Jan. 5, 2011, http://www.nytimes.com/2011/01/06/us/politics/06cong.html?pagewanted=all&_r=0.
40. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
41. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
42. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
43. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
44. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
45. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
46. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
47. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
48. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
49. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
50. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
51. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
52. See Memorandum from Denise A. Vanison, Policy & Strategy, U.S. Citizenship & Immigration Servs. et al., to Alejandro N. Mayorkas, Dir., U.S. Citizenship & Immigration Servs., available at http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive immigration-reform.pdf (outlining administrative relief options designed to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization"). The Memo is marked "DRAFT" and is undated, but from internal evidence was provided in 2011.
53. Deferred Action for Childhood Arrivals, ICE, http://www.ice.gov/about/offices/ enforcement-removal-operations/publicadvocate/deferred-action-process.htm.
54. Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities (June 15, 2012), available at http://www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-deferred-action-processyoung-people-who-are-low.
55. See Barack Obama, A Nation of Laws and a Nation of Immigrants, Time, June 17, 2012, http://ideas.time.com/2012/06/17/A-NATION-OF-LAWS-AND-A-NATION-OF-IMMIGRANTS/ ("We prioritized our resources and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education.").
56. Letter from Professor Hiroshi Motomura et al., to President Barack Obama (May 28, 2012), available at www.nilc.org/document.html?id=754.
57. Letter from Professor Hiroshi Motomura et al., to President Barack Obama (May 28, 2012), available at www.nilc.org/document.html?id=754.
58. Moreover, it can be argued that Congress implicitly encourages, and perhaps desires, broad enforcement discretionary authority as an antidote to its own overregulation or overcriminalization. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 514, 546-47 (2001) (noting the proliferation of state and federal criminal statutes and explaining that enforcement discretion substantially alters the trade-offs that legislatures confront when defining crimes). We shall consider the application of Stuntz's insight by Adam B. Cox & Cristina M. Rodríguez to the immigration area in subpart IV(D).
59. Indeed, a constitutional system that separates lawmaking from law interpretation and law enforcement seems to argue against clear ex ante rules of any kind, and thus to promote some degree of discretionary decision making. See Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953, 1004 (1995) (discussing how the separation of legislative and executive power produces some pressures militating against ex ante rules, which may result in executive discretion).
60. Indeed, a constitutional system that separates lawmaking from law interpretation and law enforcement seems to argue against clear ex ante rules of any kind, and thus to promote some degree of discretionary decision making. See Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953, 1004 (1995) (discussing how the separation of legislative and executive power produces some pressures militating against ex ante rules, which may result in executive discretion).
61. Cf. Poe v. Ullman, 367 U.S. 497, 498, 507-08 (1961) (holding that, without a showing of a real enforcement threat, there is insufficient grounds to adjudicate the constitutionality of a uniformly unenforced statute that prohibited the use of contraceptive devices).
62. See United States v. Bajakajian, 524 U.S. 321, 324 (1998) (holding that it violates the Excessive Fines Clause of the Eighth Amendment to fine the respondent for the entire amount of money that he failed to declare upon leaving the country).
63. U.S.C. § 953 (2006) (subjecting to fine or imprisonment any U.S. citizen who "without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government... or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States"); see generally Michael V. Seitzinger, Cong. Research Serv., RL33265, Conducting Foreign Relations Without Authority: The Logan Act (2006) (exploring the history of the Logan Act).
64. For that very reason, critics of the modern administrative state consider it to be inherently lawless. See Richard A. Epstein, Why the Modern Administrative State Is Inconsistent with the Rule of Law, 3 N.Y.U. J.L. & Liberty 491, 495 (2008) ("[T]he administrative state gives rise to a peculiar blend of bureaucratic rule and discretion that does not comport with the historical conception of a rule of law, and its central concern with the control of arbitrary power. ").
65. 508 U.S. 182 (1993).
66. 508 U.S. 182 (1993).
67. 549 U.S. 497, 527 (2007).
68. 132 S. Ct. 2492 (2012).
69. 132 S. Ct. 2492 (2012).
70. See U.S. Const. art. II, § 3, cl. 5 (stating that the president "shall take [c]are that the [l]aws be faithfully executed").
71. President George Washington, Proclamation Regarding the Cessation of Violence and Obstruction of Justice in Protest of Liquor Laws (Sept. 15, 1792), available at http:// www.presidency.ucsb.edu/ws/index.php?pid=65427&st=st1.
72. George W. Carey, Separation of Powers and the Madisonian Model: A Reply to the Critics, 72 Am. Pol. Sci. Rev. 151, 156 (1978).
73. Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985).
74. John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L.J. 483, 488 (1995) (noting that Constitution itself imposes supermajority requirements in seven places and permits Congress to introduce additional veto points).
75. Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 184-85, 213-17 (1997) (arguing that the Senate filibuster in its present form imposes a supermajority requirement on legislation but does not promote deliberation).
76. The Federalist No. 63, at 425 (James Madison) (Jacob E. Cooke ed., 1961).
77. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
78. See Raines v. Byrd, 521 U.S. 811, 817 (1997) (explicating the argument against the Line Item Veto Act that lawmakers' decision making is adversely impacted by the President's ultimate cancellation power).
79. See Raines v. Byrd, 521 U.S. 811, 817 (1997) (explicating the argument against the Line Item Veto Act that lawmakers' decision making is adversely impacted by the President's ultimate cancellation power).
80. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
81. Peter L. Strauss, The President and Choices Not to Enforce, 63 Law & Contemp. Probs. 107, 110, 116-17 (2000).
82. Peter L. Strauss, The President and Choices Not to Enforce, 63 Law & Contemp. Probs. 107, 110, 116-17 (2000).
83. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-49 (1989).
84. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-49 (1989).
85. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-49 (1989).
86. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-49 (1989).
87. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-49 (1989).
88. For the Framers' awareness of republican political theory, see Bernard Bailyn, Intellectual Origins of the American Revolution 31 (1967) (observing the impression made by Enlightenment rationalism on the Framers).
89. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
90. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
91. The power to "dispense with" the laws was originally claimed on behalf of the papacy. The Pope's power to "dispense" with ordinary laws was sometimes likened to God's power to set aside the ordinary course of nature by working miracles. See, e.g., Elsa Marmursztejn, Penser la Dispense: Éclairages Théologiques sur le Pouvoir Pontifical (XIIIe-XIVe siècles), 78 Legal Hist. Rev. 63, 85-86 (2010) (equating the Pope's full power with the idea of omnipotence and discussing how it allows the Pope to grant dispensation from ecclesiastical law).
92. The power to "dispense with" the laws was originally claimed on behalf of the papacy. The Pope's power to "dispense" with ordinary laws was sometimes likened to God's power to set aside the ordinary course of nature by working miracles. See, e.g., Elsa Marmursztejn, Penser la Dispense: Éclairages Théologiques sur le Pouvoir Pontifical (XIIIe-XIVe siècles), 78 Legal Hist. Rev. 63, 85-86 (2010) (equating the Pope's full power with the idea of omnipotence and discussing how it allows the Pope to grant dispensation from ecclesiastical law).
93. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
94. See Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By 7-8 (noting that American lawyers of the Founding period relied "heavily and preeminently" on Blackstone).
95. William Blackstone, Commentaries *233-34 (citations omitted).
96. They could have learned it from David Hume's The History of England, which includes a full account of the legal history leading up to the Glorious Revolution and the constitutional settlement after it, and was widely read in America at the time. David Hume, The History of England: From the Invasion of Julius Caesar to the Abdication of James the Second, 1688 (1849-51).
97. U.S. Const. art. II, § 3.
98. See, e.g., William Rawle, A View of the Constitution of the United States of America 147-50 (2d ed. 1829) ("Every individual is bound to obey the law, however objectionable it may appear to him: the executive power is bound not only to obey, but to execute it. ").
99. Noah Webster, An American Dictionary of the English Language 32 (1828).
100. Noah Webster, An American Dictionary of the English Language 32 (1828).
101. Samuel Johnson, A General Dictionary of the English Language 736 (1755), available at http://johnsonsdictionaryonline.com/?page_id=7070&i=736.
102. Samuel Johnson, A General Dictionary of the English Language 736 (1755), available at http://johnsonsdictionaryonline.com/?page_id=7070&i=736.
103. Samuel Johnson, A General Dictionary of the English Language 736 (1755), available at http://johnsonsdictionaryonline.com/?page_id=7070&i=736.
104. Samuel Johnson, A General Dictionary of the English Language 736 (1755), available at http://johnsonsdictionaryonline.com/?page_id=7070&i=736.
105. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
106. David M. Driesen, Toward A Duty-Bound Theory of Executive Power, 78 Fordham L. Rev. 71, 83 (2009).
107. U.S. Const. art. II, § 3.
108. U.S. Const. art. II, § 3.
109. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
110. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
111. 5 U.S. (1 Cranch) 137 (1803).
112. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
113. The Debates in the Several State Conventions on the Adoption of the Federal Constitution 445-46 (Jonathan Elliot ed., 1907).
114. Akhil Reed Amar, America's Constitution: A Biography 179 (2005).
115. U.S. Const. art. II, § 1, cl. 8.
116. U.S. Const. art. II, § 1, cl. 8.
117. U.S. Const. art. II, § 1, cl. 8.
118. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
119. U.S. Const. art. 1, § 9, cl. 2.
120. The Pardon Clause implicitly refers to a facet of the dispensing power. See U.S. Const. art. II, § 2, cl. 1. ("[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. ").
121. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
122. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
123. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
124. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
125. James Wilson, Lectures on Law Part 2, in Collected Works of James Wilson 829, 878 (Kermit L. Hall & Mark David Hall eds., 2007).
126. Charter of Liberties and Frame of Government of the Province of Pennsylvania in America (1682), reprinted in Colonial Origins of the American Constitution: A Documentary History 271, 277 (Donald S. Lutz ed., 1998) ("[T]he Governor... shall take care, that all laws, statutes and ordinances... be duly and diligently executed. ").
127. Pa. Const. of 1776, § 20, available at http://avalon.law.yale.edu/18th_century/pa08.asp.
128. N.Y. Const. of 1777, art. XIX, available at http://avalon.law.yale.edu/18th_century/ ny01.asp.
129. Va. Const. of 1776, reprinted in 2 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1910, 1910-11 (Ben Perley Poore ed., 2d ed. 1878).
130. Va. Const. of 1776, reprinted in 2 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1910, 1910-11 (Ben Perley Poore ed., 2d ed. 1878).
131. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
132. See Christopher N. May, Presidential Defiance of "Unconstitutional" Laws 160 n.58 (1998) (cataloguing authorities on the Take Care Clause and its link to the elimination of certain executive powers).
133. See Christopher N. May, Presidential Defiance of "Unconstitutional" Laws 160 n.58 (1998) (cataloguing authorities on the Take Care Clause and its link to the elimination of certain executive powers).
134. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
135. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
136. See Christopher N. May, Presidential Defiance of "Unconstitutional" Laws 160 n.58 (1998) (cataloguing authorities on the Take Care Clause and its link to the elimination of certain executive powers).
137. Sir Edward Coke, The Case of Monopolies, in The Selected Writings and Speeches of Sir Edward Coke 394 (Steve Sheppard ed., 2003).
138. Sir Edward Coke, The Case of Monopolies, in The Selected Writings and Speeches of Sir Edward Coke 394 (Steve Sheppard ed., 2003).
139. On Hale, see Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 Yale L.J. 1651, 1702-21 (1994).
140. Sir Matthew Hale, The Prerogatives of the King 177 (D.E.C. Yale ed., 1976).
141. Sir Matthew Hale, The Prerogatives of the King 177 (D.E.C. Yale ed., 1976).
142. For a fuller analysis of the traditional legal limitations on the royal dispensing power, see Glenn Burgess, Absolute Monarchy and the Stuart Constitution 197-98.
143. The Trial of Sir Edward Hales, in 11 A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 1166 (T.B. Howell ed., 1816).
144. The Trial of Sir Edward Hales, in 11 A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 1166 (T.B. Howell ed., 1816).
145. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
146. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
147. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
148. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
149. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
150. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
151. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
152. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
153. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
154. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
155. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
156. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
157. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
158. John Miller, James II 212 (2000).
159. John Miller, James II 212 (2000).
160. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
161. Ernest C. Thomas, Godden v. Hales, in Leading Cases in Constitutional Law Briefly Stated 17 (Charles L. Attenborough, 3d ed. 1901).
162. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
163. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
164. Tony Claydon, William III's Declaration of Reasons and the Glorious Revolution, 39 Hist. J. 87, 87-88 (1996).
165. Lois G. Schwoerer, Propaganda in the Revolution of 1688-89, 82 Am. Hist. Rev. 843, 851-60 (1977).
166. For example, in his Prince of Orange's Declaration, 19 December 1688, William noted: [The King's advisers] did invent and set on foot the King's dispensing Power; by virtue of which they pretend, that, according to Law, he can suspend and dispence with the Execution of the Laws, that have been enacted by the Authority of the King and Parliament, for the Security and Happiness of the Subject; and so have rendered those Laws of no Effect: Though there is nothing more certain, than that, as no Laws can be made but by the joint Concurrence of King and Parliament, so likewise Laws so enacted, which secure the publick Peace and Safety of the Nation, and the Lives and Liberties of every Subject in it, cannot be repealed or suspended but by the same Authority.
167. John Miller, James II 212 (2000).
168. Dennis Dixon, Godden v Hales Revisited-James II and the Dispensing Power, 27 J. Legal Hist. 129, 134-36 (2006).
169. Lucius Wilmerding, Jr., The President and the Law, 67 Pol. Sci. Q. 321, 335 (1952).
170. The omission of any explicit reference in the Constitution to the nonexistence of a dispensing power is fully intelligible in this light. First, as of 1787, the Vesting Clause could not be understood to confer a dispensing power; second, any lingering suggestion that the President had a dispensing power was erased by the Take Care Clause. Not given to superfluities, the drafters of the Constitution did not refer to dispensations.
171. See John E. O'Connor, William Paterson: Lawyer and Statesman 1745-1806, at 131 (1979) (describing Paterson's participation in the convention).
172. OPM v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (asserting as such in an opinion joined by Justice Blackmun).
173. "Prerogative" is also sometimes used to designate particular presidential authorities, such as the pardon power or the power to conduct the Nation's foreign affairs. That the President has "prerogative powers" in that sense is, of course, undeniable. See U.S. Const. art. II, § 2, cl. 1 ("The President shall be Commander in Chief of the Army and Navy of the United States... and he shall have Power to grant Reprieves and Pardons for Offenses against the United States.... "). Reliance on a claim of prerogative is different from the claim that execution of the law would, in a particular application, unconstitutionally interfere with or undermine the legitimate exercise of an Article II power.
174. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
175. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
176. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
177. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
178. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
179. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
180. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
181. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
182. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
183. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
184. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
185. Some scholars have asserted that "Locke was the preeminent influence on the American Founding. " George Thomas, As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government, 30 Presidential Stud. Q. 534, 537 (2000).
186. Thus, Clinton Rossiter wrote that "[t]he Lockian theory of prerogative has found a notable instrument in the President of the United States, and executive initiative has come to be the basic technique of constitutional dictatorship in this country. " Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies 218 (1948).
187. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
188. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
189. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 684 (1952) (Vinson, C.J., dissenting).
190. Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale L.J. 229, 339-51 (1990) (discussing Marshall's argument in the House of Representatives in which Marshall supported the use of executive power in the Robbins affair).
191. Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale L.J. 229, 339-51 (1990) (discussing Marshall's argument in the House of Representatives in which Marshall supported the use of executive power in the Robbins affair).
192. 135 U.S. 1 (1890).
193. 135 U.S. 1 (1890).
194. 517 U.S. 748 (1996).
195. 517 U.S. 748 (1996).
196. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
197. John Locke, The Second Treatise of Civil Government, in Two Treatises of Government § 143-44, at 194-95 (Thomas I. Cook ed., Hafner Publ'g Co. 1965) (1690).
198. See John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush 391-93 (2009) (explaining that because the Reagan Administration entered office with a Democrat-controlled House and was faced with a Democratcontrolled Senate after the 1986 election, it had an easier time changing policy "through a combination of executive orders, rule-making, and judicial appointments rather than new legislation").
199. See John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush 391-93 (2009) (explaining that because the Reagan Administration entered office with a Democrat-controlled House and was faced with a Democratcontrolled Senate after the 1986 election, it had an easier time changing policy "through a combination of executive orders, rule-making, and judicial appointments rather than new legislation").
200. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
201. 517 U.S. 748 (1996).
202. 517 U.S. 748 (1996).
203. 517 U.S. 748 (1996).
204. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
205. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
206. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
207. U.S. Const. art. IV, § 3, cl. 2.
208. Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 27-30 (2004).
209. U.S. Const. art. IV, § 3, cl. 1.
210. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
211. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
212. Dumas Malone, Jefferson and His Time 312 (1970).
213. Dumas Malone, Jefferson and His Time 312 (1970).
214. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
215. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
216. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
217. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
218. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
219. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
220. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
221. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
222. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
223. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
224. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
225. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
226. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
227. U.S. Const. art. IV, § 3, cl. 1.
228. U.S. Const. art. IV, § 3, cl. 1.
229. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
230. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
231. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
232. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
233. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
234. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
235. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
236. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
237. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
238. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
239. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
240. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
241. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
242. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
243. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
244. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
245. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
246. Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803), in 8 The Writings of Thomas Jefferson 261, 262 (Paul L. Ford ed., 1897).
247. Jeremy D. Bailey, Thomas Jefferson and Executive Power 15-22 (2007).
248. Gary J. Schmitt, Jefferson and Executive Power: Revisionism and the "Revolution of 1800, " Publius, Spring 1987, at 7, 22-25.
249. Gary J. Schmitt, Jefferson and Executive Power: Revisionism and the "Revolution of 1800, " Publius, Spring 1987, at 7, 22-25.
250. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in Abraham Lincoln: Speeches and Writings 1859-1865, at 585, 585 (Don E. Fehrenbacher ed., 1989).
251. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in Abraham Lincoln: Speeches and Writings 1859-1865, at 585, 585 (Don E. Fehrenbacher ed., 1989).
252. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in Abraham Lincoln: Speeches and Writings 1859-1865, at 585, 585 (Don E. Fehrenbacher ed., 1989).
253. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in Abraham Lincoln: Speeches and Writings 1859-1865, at 585, 585 (Don E. Fehrenbacher ed., 1989).
254. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in Abraham Lincoln: Speeches and Writings 1859-1865, at 585, 585 (Don E. Fehrenbacher ed., 1989).
255. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
256. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
257. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
258. See Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868) ("The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. ").
259. Daniel A. Farber, Lincoln's Constitution 76 (2003).
260. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
261. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
262. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
263. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
264. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
265. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
266. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
267. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
268. 17 Fed. Cas. 144 (C.C.D. Md. 1861).
269. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
270. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
271. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
272. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
273. Act of Aug. 6, 1861, Sess. I, ch. 63, § 3, 12 Stat. 326, 326.
274. 67 U.S. (2 Black) 635 (1863).
275. 67 U.S. (2 Black) 635 (1863).
276. 67 U.S. (2 Black) 635 (1863).
277. 67 U.S. (2 Black) 635 (1863).
278. 67 U.S. (2 Black) 635 (1863).
279. 67 U.S. (2 Black) 635 (1863).
280. 60 U.S. (19 How.) 393 (1857).
281. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
282. For general discussion, see James G. Randall, Constitutional Problems Under Lincoln 371-85 (1926).
283. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
284. Charter of Liberties and Frame of Government of the Province of Pennsylvania in America (1682), reprinted in Colonial Origins of the American Constitution: A Documentary History 271, 277 (Donald S. Lutz ed., 1998) ("[T]he Governor... shall take care, that all laws, statutes and ordinances... be duly and diligently executed. ").
285. Charter of Liberties and Frame of Government of the Province of Pennsylvania in America (1682), reprinted in Colonial Origins of the American Constitution: A Documentary History 271, 277 (Donald S. Lutz ed., 1998) ("[T]he Governor... shall take care, that all laws, statutes and ordinances... be duly and diligently executed. ").
286. Charter of Liberties and Frame of Government of the Province of Pennsylvania in America (1682), reprinted in Colonial Origins of the American Constitution: A Documentary History 271, 277 (Donald S. Lutz ed., 1998) ("[T]he Governor... shall take care, that all laws, statutes and ordinances... be duly and diligently executed. ").
287. Phillip Shaw Paludan, The Presidency of Abraham Lincoln 155 (1994).
288. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
289. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
290. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
291. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
292. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
293. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
294. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
295. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
296. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 215, 215.
297. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
298. Louis Henkin, Foreign Affairs and the United States Constitution 13-14 (2d ed. 1996).
299. Louis Henkin, Foreign Affairs and the United States Constitution 13-14 (2d ed. 1996).
300. Louis Henkin, Foreign Affairs and the United States Constitution 13-14 (2d ed. 1996).
301. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
302. See, e.g., Bruce Ackerman, The Decline and Fall of the American Republic 4-5 (2010) (maintaining that executive power is the greatest potential threat to the Constitution and citing the war on terror as an example of illegality).
303. Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law 650, 650 (2d ed. 1993).
304. Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law 650, 650 (2d ed. 1993).
305. Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law 650, 650 (2d ed. 1993).
306. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
307. See Richard F. Grimmett, Cong. Research Serv., R41199, The War Powers Resolution: After Thirty-Six Years 49-69 (2010) (indicating that presidents cite inherent executive and Commander in Chief powers as a source of authority when disclosing military actions to Congress as required by the War Powers Act).
308. 50 U.S.C. §§ 1541-48 (2006).
309. See Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 86 (2010) (reporting that the Resolution is in effect "a dead letter" because of Congress's inability to enforce it).
310. U.S. Const. art. I, § 8, cl. 1, 3.
311. Gary J. Schmitt, Jefferson and Executive Power: Revisionism and the "Revolution of 1800, " Publius, Spring 1987, at 7, 22-25.
312. U.S. Const. art. I, § 7, cl. 2.
313. See Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379, 403 (1985) (explaining that flexible standards can help avoid unnecessary punishment).
314. See Charles R. Adrian & Charles Press, Decision Costs in Coalition Formation, 62 Am. Pol. Sci. Rev. 556, 557 (1968) (concluding that decision costs are, in part, a function of information gathering).
315. U.S. Const. art. I, § 10.
316. 304 U.S. 64 (1938).
317. 304 U.S. 64 (1938).
318. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
319. Stephen Reinhardt, The Judicial Role in National Security, 86 B.U. L. Rev. 1309, 1309-10 (2006) (characterizing the war on terror as a "war without end" and lamenting the threats to civil liberties posed by such an indefinite conflict).
320. 344 U.S. 149 (1952).
321. 343 U.S. 579 (1952).
322. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 44-47 (1993).
323. Caltex, 344 U.S. at 151-52, 156.
324. Caltex, 344 U.S. at 151-52, 156.
325. 101 U.S. 16 (1879).
326. 101 U.S. 16 (1879).
327. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
328. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952).
329. Caltex, 344 U.S. at 156.
330. Youngstown, 343 U.S. at 585.
331. Youngstown, 343 U.S. at 585.
332. See Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 221 (2002) (characterizing Black's opinion as contributing sound principles of law and the proper guidance for the interpretation of constitutional separation of powers issues during wartime).
333. See Youngstown, 343 U.S. at 679 (Vinson, C.J., dissenting) (arguing that to view the case as considering "the possibility of executive seizure of a farm, a corner grocery store or even a single industrial plant" can "arise only when one ignores the central fact of this case-that the Nation's entire basic steel production would have shut down completely if there had been no Government seizure").
334. See Youngstown, 343 U.S. at 583 (showing that the steel mills seized by the President were located in the United States).
335. See Youngstown, 343 U.S. at 583 ("The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. ").
336. E.R. Turner, Parliament and Foreign Affairs, 1603-1760, 34 Eng. Hist. Rev. 172, 172 (1919).
337. Justice Jackson's concurrence is much more on target when it says: "Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. " Youngstown, 343 U.S. at 643 (Jackson, J., concurring).
338. For an American case illustrating this principle, see Mitchell v. Harmony, 54 U.S. (13 How.) 115, 135 (1851) (stating that it is for the "political department of the government" to indemnify a military officer who "in his zeal for the honor and interest of his country" trespasses on private rights).
339. Proceedings in the Case of Ship-Money, Between the King and John Hampden, in 1 A Complete Collection of State Trials and Proceedings for High-Treason and Other Crimes and Misdemeanors 505 (4th ed. 1776).
340. D.L. Keir, The Case of Ship-Money, 52 Law Q. Rev. 546 (1936) (describing the historical background behind the Ship Money decision and its later overruling).
341. Black does observe, however, that "[e]ven though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. " Youngstown, 343 U.S. at 587.
342. Black does observe, however, that "[e]ven though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. " Youngstown, 343 U.S. at 587.
343. Black does observe, however, that "[e]ven though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. " Youngstown, 343 U.S. at 587.
344. Black does observe, however, that "[e]ven though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. " Youngstown, 343 U.S. at 587.
345. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
346. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 44-47 (1993).
347. See Youngstown, 343 U.S. at 588 ("The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress--it directs that a presidential policy be executed in a manner prescribed by the President. ").
348. See Youngstown, 343 U.S. at 588 ("The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress--it directs that a presidential policy be executed in a manner prescribed by the President. ").
349. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
350. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
351. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
352. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
353. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
354. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
355. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
356. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
357. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
358. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
359. United States v. Midwest Oil Co., 236 U.S. 459, 466 (1915) (internal quotation marks omitted).
360. This tendency was exhibited not only in the Midwest Oil case, but also more recently in Dames & Moore v. Regan, 453 U.S. 654, 669, 672, 674 (1981), which can also be considered a "prerogative" case.
361. We take the distinction between "justification" and "excuse" from J.L. Austin, A Plea for Excuses: The Presidential Address, 57 Proc. Aristotelian Soc'y 1 (1957), a classic paper by a leading "ordinary language" philosopher.
362. We take the distinction between "justification" and "excuse" from J.L. Austin, A Plea for Excuses: The Presidential Address, 57 Proc. Aristotelian Soc'y 1 (1957), a classic paper by a leading "ordinary language" philosopher.
363. We take the distinction between "justification" and "excuse" from J.L. Austin, A Plea for Excuses: The Presidential Address, 57 Proc. Aristotelian Soc'y 1 (1957), a classic paper by a leading "ordinary language" philosopher.
364. See Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 722 ("The Faithful Execution Clause imposes a duty of faithful law execution on the only officer who enjoys the executive power. Whether the chief executive executes the law himself or whether he executes through his executive subordinates, the president must faithfully execute the law. "). This is not to deny that in other respects the Take Care Clause is a conveyance of power. Like the general grant of the executive power, the duty to "take Care that the Laws be faithfully executed" both restricts and empowers the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. Enforcement also implies interpretation. In order to carry out the laws, an Executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision making to the Executive.
365. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
366. See Letter from Andrew Fois, Assistant Att'y Gen., U.S. Dep't of Justice, to Senator Orrin Hatch, Chairman, U.S. Senate Comm. on the Judiciary (Mar. 22, 1996), available at http://journaloflaw.us/0%20JoL/1-1/JoL1-1.pdf (expounding on President Clinton's directive to the Department of Justice to decline to defend the constitutionality of § 567 of the National Defense Authorization Act for Fiscal Year 1996).
367. See Placing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 183 (1996) (articulating the position of the Department of Justice that the bill "unconstitutionally constrains the President's exercise of his constitutional authority as Commander-in-Chief [and] undermines his constitutional role as the United States' representative in foreign relations").
368. 142 Cong. Rec. H12 (daily ed. Jan. 3, 1996) (statement of President William J. Clinton).
369. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 426-27 (2008) (articulating the argument for presidential equality and asserting the Executive Branch could independently and equally interpret the Constitution).
370. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (explaining that the right to exclude aliens "is inherent in the executive power to control the foreign affairs of the nation").
371. Fiallo v. Bell, 430 U.S. 787, 792 n.4 (1977).
372. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 274 (same).
373. Gerald N. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1842-43 (1993) (describing a period in early American history when several states passed laws governing immigration).
374. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
375. We should not be interpreted as saying that the President's constitutional responsibilities with respect to foreign policy enable him to make domestic law. That is not the case, even where the President has "plainly compelling" reasons for attempting to enforce a (non-self-executing) Article II treaty against a recalcitrant state. See Medellin v. Texas, 552 U.S. 491, 524-27 (2008) (holding that the terms of a non-self-executing treaty can only become domestic law through the passage of legislation by Congress). Nor are we saying that the Constitution requires that any conflict between a federal statutory mandate and a presidential foreign policy goal must always be resolved in favor of the latter. What we are saying (and what we take the Supreme Court in Arizona to have said) is that when the President's obligation to enforce the law is balanced against his obligation to protect the nation's security and vital national interests, the President may reasonably conclude that the latter is weightier, and defend his nonenforcement decision on that basis. Congress and the President's critics may, of course, reasonably disagree, instigating a political contest over the decision.
376. 132 S. Ct. 2492 (2012).
377. 132 S. Ct. 2492 (2012).
378. 132 S. Ct. 2492 (2012).
379. 525 U.S. 471 (1999).
380. 525 U.S. 471 (1999).
381. George C. Herring, From Colony to Superpower: U.S. Foreign Relations Since 1776, at 355-57 (2008).
382. See generally Kiyo Sue Inui, The Gentlemen's Agreement: How It Has Functioned, 122 Annals Am. Acad. Pol. & Soc. Sci. 188 (1925).
383. See Thomas A. Bailey, The Root-Takahira Agreement of 1908, 9 Pac. Hist. Rev. 19 (1940).
384. Greg Russell, Theodore Roosevelt's Diplomacy and the Quest for Great Power Equilibrium in Asia, 38 Presidential Stud. Q. 433 (2008) (analyzing Roosevelt's strategic objectives in Asia).
385. Peter E. Quint, The Separation of Powers Under Nixon: Reflections on Constitutional Liberties and the Rule of Law, 1981 Duke L.J. 1, 14, 16-17.
386. Peter E. Quint, The Separation of Powers Under Nixon: Reflections on Constitutional Liberties and the Rule of Law, 1981 Duke L.J. 1, 14, 16-17.
387. Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297; see Train v. City of New York, 420 U.S. 35, 41-42 n. 8 (1975) (summarizing the provisions of the Act).
388. In 1803, Jefferson informed Congress that he had decided not to expend some $50,000 that it had appropriated for gunboats, finding the expenditure unnecessary. Note, Impoundment of Funds, 86 Harv. L. Rev. 1505, 1508 n.7 (1973). Jefferson was careful to say, however, that his action was a delay rather than a refusal to spend; and he expended the funds on gunboats in the following year.
389. In 1803, Jefferson informed Congress that he had decided not to expend some $50,000 that it had appropriated for gunboats, finding the expenditure unnecessary. Note, Impoundment of Funds, 86 Harv. L. Rev. 1505, 1508 n.7 (1973). Jefferson was careful to say, however, that his action was a delay rather than a refusal to spend; and he expended the funds on gunboats in the following year.
390. In 1803, Jefferson informed Congress that he had decided not to expend some $50,000 that it had appropriated for gunboats, finding the expenditure unnecessary. Note, Impoundment of Funds, 86 Harv. L. Rev. 1505, 1508 n.7 (1973). Jefferson was careful to say, however, that his action was a delay rather than a refusal to spend; and he expended the funds on gunboats in the following year.
391. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
392. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
393. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
394. U.S. Const. art. II, § 2, cl. 1.
395. U.S. Const. art. II, § 2, cl. 1.
396. U.S. Const. art. II, § 2, cl. 1.
397. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
398. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2090 (2008) (outlining "moral arguments" for legalizing the status of DREAMers, but suggesting a solution through legislative action).
399. This is not to say that no "law" can deal with an individual case. An act of Congress (posthumously) made the Marquis de Lafayette a U.S. citizen. See Act of Aug. 6, 2002 Pub. L. No. 107-209, 116 Stat. 931 (conferring honorary citizenship on Lafayette). But as a general matter, "laws" consist of rules, and hence may be applied to more cases than one.
400. See Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Aff. 83, 92-95 (1993) (observing that it was Aristotle who made the major contribution to incorporating equity into concepts of justice).
401. Roger A. Shiner, Aristotle's Theory of Equity, 27 Loy. L.A. L. Rev. 1245, 1251-53 (1994) (suggesting that Aristotle's account of equity provides us a way to understand equity beyond linking it to gaps in the law to acting as a rectification of law's misleading universality).
402. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
403. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
404. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
405. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
406. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
407. Aristotle, The Nicomachean Ethics 98 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) (350 B.C.E.).
408. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
409. Myers v. United States, 272 U.S. 52, 291-92 (1926) (Brandeis, J., dissenting).
410. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2090 (2008) (outlining "moral arguments" for legalizing the status of DREAMers, but suggesting a solution through legislative action).
411. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2090 (2008) (outlining "moral arguments" for legalizing the status of DREAMers, but suggesting a solution through legislative action).
412. Julia Preston, A Crackdown on Employing Illegal Workers, N.Y. Times, May 29, 2011, http://www.nytimes.com/2011/05/30/us/politics/30raid.html?pagewanted=all&_r=0.
413. System for Tracking Visa Overstays Is Almost Ready, Wash. Times, Mar. 6, 2012, http://www.washingtontimes.com/news/2012/mar/6/system-for-tracking-visa-overstays-is-almostready/.
414. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 492, 497 (1999) (Ginsburg, J., concurring in part and concurring in the judgment) (leaving open the possibility of judicial review of a claim of selective deportation based on an alien's exercise of First Amendment rights).
415. See Yick Wo v. Hopkins, 118 U.S. 356, 368-70 (1886) (establishing that the selective enforcement of ordinances against only Chinese immigrants violates "the nature and the theory of our institutions of government" which "do not mean to leave room for the play and action of purely personal and arbitrary power").
416. See Bridges v. Wixon, 326 U.S. 135, 162 (1945) (Murphy, J. concurring) (asserting that "the First Amendment and other portions of the Bill of Rights make no exception in favor of deportation laws, " including freedom of speech).
417. Miriam Jordan, Immigration-Policy Details Emerge, Wall St. J., Aug. 3, 2012, http://online.wsj.com/article/SB10000872396390443545504577567441019730890.html.
418. See Barack Obama, A Nation of Laws and a Nation of Immigrants, Time, June 17, 2012, http://ideas.time.com/2012/06/17/A-NATION-OF-LAWS-AND-A-NATION-OF-IMMIGRANTS/ ("We prioritized our resources and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education.").
419. Robert Pear, Fewer Youths to be Deported in New Policy, N.Y. Times, Aug. 18, 2011, http://www.nytimes.com/2011/08/19/us/19immig.html?pagewanted=all (discussing the new Obama Administration policy that would suspend deportation proceedings for low-priority cases).
420. Robert Pear, Fewer Youths to be Deported in New Policy, N.Y. Times, Aug. 18, 2011, http://www.nytimes.com/2011/08/19/us/19immig.html?pagewanted=all (discussing the new Obama Administration policy that would suspend deportation proceedings for low-priority cases).
421. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., concurring in part and dissenting in part).
422. Miriam Jordan, Immigration-Policy Details Emerge, Wall St. J., Aug. 3, 2012, http://online.wsj.com/article/SB10000872396390443545504577567441019730890.html.
423. Miriam Jordan, Immigration-Policy Details Emerge, Wall St. J., Aug. 3, 2012, http://online.wsj.com/article/SB10000872396390443545504577567441019730890.html.
424. For example, the nonenforcement measure applies equally to those immigrants already ordered removed and within the 90-day removal period. See 8 U.S.C. § 1231(a)(1)(A) (Supp. II 2009) ("[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the 'removal period'). ").
425. A simple and schematic illustration may be in order. Suppose that the total population of deportable immigrants is 10,000, of whom 5,000 are DREAMers and 5,000 are criminal aliens. Suppose also that ICE's enforcement budget is $1,000, and that the cost of proceeding against and deporting a single illegal immigrant is $1. If ICE used the whole of its budget without distinguishing between the two kinds of deportable immigrants, it would spend $500 on deporting 500 DREAMers and $500 in deporting 500 criminals. But assume that ICE had reasonably concluded that the deportation of a criminal created 2 units of value, whereas that of a DREAMer created only 1 unit of value. Then it would be rational for ICE to dedicate the whole of its budget to deporting 1,000 criminals, thus creating 2,000 units of value, rather than to deporting 500 of each kind, with a yield of only 1,500 value units. This appears to be how the Administration would have us think about its action. But the situation is more complicated. First, DREAMers had been a low enforcement priority for about a year before the June 15 nonenforcement decision. So let us assume that instead of spending $500 on their deportation, ICE had been spending only $50. Then the nonenforcement decision would shift $50 to enforcement against the criminal class, creating a net value gain of only 50 (2 × 50)-50), not 500 (2,000-1,500). Second, assume that the cost of background checks and other expenses related to the "deferred action" program amounted to 10 cents per DREAMer, and that all 5,000 DREAMers applied for that relief. The cost of the new program would then be $50-a sum equal to the amount that ICE had been spending on enforcement against them. In that case, there would be no additional funding available for enforcement against the criminal class, and so no gain in value. Finally, suppose that 5 DREAMers had outstanding deportation orders against them, and that it would cost only 10 cents to complete the removal of each of them. Nonenforcement against these DREAMers would then make an additional 50 cents available for enforcement against the criminals. But the value of deporting the 5 DREAMers would be 5, whereas dedicating 50 cents more to enforcement against criminals would yield only 1 unit of value.
426. Although the Administration has declared that the removal of aliens convicted of serious crimes is a high priority, there is obviously a significant enforcement shortfall in that and related areas. A recent report by the Inspector General of DHS found that more than 800,000 individuals who had been ordered deported, removed, and excluded are still in the United States. Office of Inspector Gen., Dep't of Homeland Sec., OIG-13-11 (Revised), Improvements Needed for SAVE to Accurately Determine Immigration Status of Individuals Ordered Deported 1 (2012). Further, DHS had erroneously identified about 12% of these cases (including cases of those with criminal records), as having a lawful immigration status. Individuals erroneously verified for benefits included some who had committed felonies ranging from citizenship fraud to aggravated assault. One person who had been ordered deported in 2000 after multiple criminal convictions including a weapons offense applied in 2009 for a Transportation Security Administration card granting access to secure areas of transportation facilities and was erroneously confirmed to be in lawful status. ICE finally removed this person in 2012. So far as we are aware, the Administration has said nothing about dedicating resources allegedly saved from its DREAMers program to improving enforcement in deporting, or disqualifying from benefits, those under removal orders who have criminal records.
427. See Barack Obama, A Nation of Laws and a Nation of Immigrants, Time, June 17, 2012, http://ideas.time.com/2012/06/17/A-NATION-OF-LAWS-AND-A-NATION-OF-IMMIGRANTS/ ("We prioritized our resources and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education.").
428. See U.S. Gov't Accountability Office, GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process 85 (2005) (defining "reprogramming").
429. 437 U.S. 153 (1978).
430. 437 U.S. 153 (1978).
431. 437 U.S. 153 (1978).
432. 437 U.S. 153 (1978).
433. As the Court said in Hill, [It is] the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws....
434. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
435. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
436. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
437. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
438. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
439. See Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) ("[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.
440. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
441. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
442. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2090 (2008) (outlining "moral arguments" for legalizing the status of DREAMers, but suggesting a solution through legislative action).
443. See Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57, 71 (contrasting the view of constituencies that claim that federal immigration law is overenforced with those claiming it to be underenforced, and concluding that both critiques "are accurate").
444. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
445. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
446. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 474-75 (2001) (acknowledging the wide outer limits of nondelegation precedents and citing cases to that effect).
447. For discussion and application of the theory of the firm to Congress, see David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L. Rev. 947, 960-67 (1999).
448. For discussion and application of the theory of the firm to Congress, see David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L. Rev. 947, 960-67 (1999).
449. See, e.g., 26 U.S.C. § 11 (Supp. I 2009) (containing portions of tax code dealing with corporate income tax and its exceptions).
450. For discussion and application of the theory of the firm to Congress, see David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 Cardozo L. Rev. 947, 960-67 (1999).
451. See Dalton v. Specter, 511 U.S. 462, 464-65 (1994) (describing the congressional delegation of base closing authority to both a special commission and the President).
452. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
453. See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 546-47 (2009) (concluding that the President may not act in opposition to Congress and decide whom to admit, though he may decide whom to deport under the authority delegated to the Executive by Congress).
454. Consider a very simple analogy: Suppose the Legislature sets the speed limit at 60 m.p.h., but does not cover enforcement costs fully. The police might quietly decide to enforce a 70-m.p.h. limit, and disregard drivers traveling between 60 and 70 m.p.h. If knowledge of this policy became widespread, it would likely cause many drivers who previously had been law compliant to drive at up to 70 m.p.h. That effect alone would likely damage the public's respect for the law and weaken its habits of compliance. Imagine next that the police commissioner made a formal, public announcement that motorists driving illegally but below 70 m.p.h. would not be stopped and charged. Not only would that announcement likely encourage more noncompliance, but it could do considerably more harm to the public's regard for the law.