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Madison's NightmareHow Executive Power Threatens American Democracy$
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Peter M. Shane

Print publication date: 2009

Print ISBN-13: 9780226749396

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226749426.001.0001

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Checks and Balances in Law and History

Checks and Balances in Law and History

(p.27) 2 Checks and Balances in Law and History
Madison's Nightmare
University of Chicago Press

This chapter investigates the legal debates that surround the current growth of presidential power. The 2006 confirmation battle concerning Supreme Court Justice Samuel Alito brought to many citizens' consciousness the fact of a disagreement among constitutional scholars and practitioners about something called “the unitary presidency.” The issue dividing presidentialists and pluralists is whether the President's constitutionally based administrative powers include the authority to take over or command all policy making discretion that Congress has delegated to anyone within the executive branch. The Constitution simply does not command the unitary presidency in domestic affairs that the presidentialists imagine. It gives Congress and the courts considerably more influence than presidentialists would prefer in delimiting presidential authority. The inherited Constitution from the Framers provides profound roles for both Congress and the judiciary in setting the appropriate bounds of executive power.

Keywords:   presidential power, unitary presidency, presidentialists, Constitution, Congress, presidential authority, executive power

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