Article   |   Volume 164, Issue 7

Constitutional Arrogance

By
164 U. Pa. L. Rev. 1649 (2016)

August 2016












My argument is that the presidency of the United States has the institutional disposition and capacity for constitutional arrogance—to take unilateral actions challenging its constitutional boundaries and extending its powers at other authorities’ expense. While every federal branch is prone to push its respective powers to—if not beyond—its limits (which is why the Constitution requires “[a]mbition must be made to counteract ambition”), there are several, unique forces incentivizing the presidency, as an institution, to have the disposition and the ability to aggrandize its authority.

My perspective is grounded in institutionalism, which seeks to illuminate the context of presidential actions, to situate such actions within the arc of developing presidential authority over time, and to provide a basic language for understanding presidential power.5 From this perspective, I suggest, in Part III, that the most potent constraints on constitutional arrogance are judicial review, public opinion, concerns about historical legacy, and conventions. Although law provides a conceptual framework and grammar, these considerations provide some resistance to, but do not always curb, the presidency’s propensity and capacity to take advantage of constitutional indeterminacy and undertake unilateral action with the purpose or effect of aggrandizing itself and wresting power from other branches, particularly Congress.

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