Shalev Gad Roisman (University of Arizona – James E. Rogers College of Law) has posted The Exclusive Powers Presidency on SSRN. Here is the abstract:
Over the last decade, the Roberts Court has quietly transformed separation of powers law by centering the President’s “exclusive” powers. Yet the Court does not seem to understand what it means to call a power “exclusive,” or what consequences may flow from organizing separation of powers law around this concept. Scholars, meanwhile, have yet to confront the exclusive powers-turn head on.
This Article identifies the underlying conception of exclusivity that animates the Court’s recent doctrine and explains what it means for the separation of powers. It argues that the Roberts Court has adopted a distinctive conception of exclusivity consisting of two principles: (1) The Sole Ownership Principle—the notion that, if the President’s power is exclusive, only the President has any authority that falls under it; and (2) The Noninterference Principle—the notion that no other branch can interfere with an exercise of the President’s exclusive power, even if that branch is exercising its own constitutional powers. Taken together, these principles have an unsparing doctrinal force. As the Article shows, given the presidential powers that the Court has deemed “exclusive,” taking this conception to its logical conclusion would lead to an essentially unconstrained presidency in some of the most important areas of modern governance.
This is not merely a theoretical concern. The second Trump administration has repeatedly invoked exclusive-powers reasoning to justify unprecedented and expansive executive action in various domains. And it – or future administrations – might yet go considerably further on exclusive power grounds. Ultimately, while the exclusive powers conception yields clear answers in resolving disputes between the branches of government, it proves incompatible with foundational features of the Constitution’s separation of powers and other strands of the Court’s own doctrine. The Article concludes by charting potential paths out of the exclusive powers presidency.
Highly recommended. I believe this a new version of a paper that was posted on LTB last May.