Legal History

Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet despite the significance of this practice, its origins are...

This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws...

Gregory Ablavsky’s Federal Ground explains how the national government and American law were transformed in the federal territories that compose modern Ohio and Tennessee. Ablavsky’s careful research and fresh perspective will make his work a vital reference for histo­rians, but this Book Review also highlights the book’s significance for le­gal ac­a­demics and lawyers. Ablavsky has collected extraordinary evidence about property...

Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary—and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas—such as abortion, affirmative action, or gun rights—they face a conundrum: To protect the legitimacy...

DELEGATION AT THE FOUNDING

Julian Davis Mortenson & Nicholas Bagley*

This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized...

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue...

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from...

Shortly after John Wilkes Booth assassinated Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theatre. Johnson’s decision implicated a fundamental constitu­tional question that was heatedly debated throughout the Civil War: When, if ever, may the federal...