Title

Presidential Whim

Document Type

Article

Publication Date

1-1-2020

Abstract

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of "presidential whim." The best prospects for checking presidential whim and enforcing the vision of the presidency set out in the new legal literature is congressional regulation of delegated presidential power. For example, Congress could mandate by statute that the President engage in some form of interagency review before exercising powers delegated by statute. Congress could forbid the use of social media platforms like Twitter as a means of exercising statutory power. Statutory procedural requirements would then enable a more effective practice of judicial review of presidential action focused on procedural compliance. Courts could also develop a procedural version of non-delegation doctrine to restrict unstructured delegations of power to the President.

Publication Title

Ohio Northern University Law Review

First Page

489

Comments

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