Houston Law Review
Publication Title (Abbreviation)
Hous. L. Rev.
The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a phenomenon that can often be detected in Court opinions sustaining executive authority: reliance on unrealistic assumptions. This Article identifies a series of recurring devices through which the Court has rejected challenges to executive power by relying on factually dubious premises. While these questionable assumptions do not necessarily vitiate the executive authority they help to uphold, repeated resort to them at least casts doubt on the constitutional basis for executive primacy in the modern era.
© 2016 Nat Stern
Separation of Powers, Executive Authority, and Suspension of Disbelief, 54
Hous. L. Rev.
Available at: https://ir.law.fsu.edu/articles/439
First published in Houston Law Review.