Working Paper No. 10-36:
The President's Sphere of Action
Date Posted: August 2010
Abstract (below) | Full text (most recent) on SSRN
To what extent can the President say what the law is? An answer to this question is usually sought by focusing on the President’s affirmative powers and duties. This article takes a different approach by examining the constitutional limits on the President’s interpretive authority. The Constitution confers on each branch the means of self-defense commensurate to its constitutional powers, and it gives the President the ability to check the other branches quickly and with precision. By contrast, Congress and the Supreme Court may challenge the President, but their processes require greater consensus and move more slowly. The President enjoys a wide sphere of action as seen by the type of limits placed on his powers and the significant means given to the President to defend his office from the other branches. The structure and design of these constitutional limits supports a powerful and independent authority for the President to say what the law is.