Erica Newland (The Protect Democracy Project) has posted The Householder Presidency on SSRN. Here is the abstract:
Modern separation-of-powers law is conceptually incoherent and conspicuously detached from constitutional text, structure, history, and precedent. In efforts to redirect or rationalize the doctrine—which has fortified presidential power at the expense of Congress, lower courts, executive agencies, and the American people—scholars have exhausted the traditional sources of constitutional interpretation. Yet the doctrine’s animating logic has remained elusive, making its trajectory hard to predict.
This Article shows that a grand theory has been hiding in plain sight. Today’s separation-of-powers jurisprudence extends a centuries-old American governance tradition that has long been invisible to structural constitutional law: Householder governance, the legal regime that vested white male household heads with dominion over the domestic sphere.
Drawing on twenty-first-century separation-of-powers jurisprudence and nineteenth-century case law concerning marital and family relations, enslavement, and self-defense, this Article shows that in recent decades, the Supreme Court and the executive branch have laundered the commitments underlying Householder governance—commitments to hierarchy, heteronomy, headship, Householder exceptionality, and personalist rule—into national governance. They have created a Householder presidency.
Situating modern separation-of-powers law within the Householder governance tradition brings to it conceptual coherence, historical grounding, and predictability. Separation-of-powers doctrine’s now-canonical rules—from the presumption of regularity to removal authority, executive privilege, and presidential immunity—are driven by the same commitments that underpinned Householder governance. Developments in administrative law, standing law, and the law of preliminary relief coalesce to reinforce the Householder president’s prerogatives. The proffered justifications for today’s separation-of-powers doctrine meanwhile replicate the justifications once offered for Householder governance, illuminating the illiberalism of the modern doctrine and how its internal logic is enforced. The Supreme Court plays the role in this jurisprudence that state supreme courts played in the nineteenth century: handmaiden to the Householder’s rule. Congress, lower courts, and the American people are demoted from participants in self-governance to subordinate household members who maintain a coverture-like relationship with the president.
This Article also shows that the architects of modern separation-of-powers law are institutionalists. It’s just that their commitments are rooted not in the civic institutions that men like James Madison and John Marshall built but rather in the household institutions they governed. Furthering the generations-long project of dismantling Householder governance and forging truly democratic governance will require dismantling the Householder presidency. This Article concludes by showing how to begin.
Highly Recommended!
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