American Executive Power in Historical Perspective
December 28, 2012
Bibliography: Mariano-Florentino Cuéllar, American Executive Power in Historical Perspective, 36 Harvard Journal of Law and Public Policy 53 (2013). Also issued as Stanford Public Law Working Paper No. 2194284.
Decisions made by the White House and senior officials in cabinet agencies often catalyze intense controversy about the scope of executive power in the United States. In this paper, I offer some context relevant to the discussion of such disagreements. First, I situate some of the recent debates about presidential power in the American system in their larger historical context — a context that showcases (at least during much of the 20th century) a recurring interest across parties and presidential administrations in robust, democratically sanctioned executive power. Second, I observe how the recent history of executive power is evolving in response to legislative and organizational developments. In particular, executive power to engage in quasi-adjudicatory decisions appears to be expanding as legislative committees and agencies increasingly overlap in jurisdiction, and foreign policy aspects of agency actions become more salient to the public. Tensions plainly persist, however, regarding accountability for executive decisions, the structure of the executive branch, and the limits of judicial power to