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ARTICLE CONTENTS INTRODUCTION 5 1. A PRELIMINARY PARSING 13 II. COMMANDERS IN CHIEF--NEITHER UNCOMMON NOR AUTONOMOUS 18 A. Commanders in Chief Before the Constitution 19 1. English and British Practice [...], The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of "commander in chief" is as obvious as it is unequivocal--it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief's power begins and ends. In particular, establishing the Clause's limits is an acute and persistent problem. Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause's elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistendy directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the "first General and Admiral." The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term "commander in chief" would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them. To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these otlier clauses. How we read the Commander-in-Chief Clause matters. Without a sense of the Clause's alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article's assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.

A. Politics in the Office of the State Attorney General Attorneys general frequently seek higher office, so much so that the "AG" label has been described as shorthand for "Aspiring [...]

ARTICLE CONTENTS INTRODUCTION I. MODERN MISCONCEPTIONS A. Impeachment and Removal B. A Case of Mistaken Conflation C. The Beguiling Role of Judicial Independence II. THE MEANING OF TENURE "DURING GOOD [...], Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held--land, licenses, employment, etc.--could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.

Conventional wisdom regards impeachment as the only means of removing federal judges, so that the good-behavior tenure provision of Article III must be understood as an awkward cross-reference to the [...]

No foreign affairs scholar writes on a clean slate. Many eminent scholars and judges have labored to make sense of the Constitution's allocation of foreign affairs powers. Although these attempts [...], This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the U.S. government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitution contains enormous gaps in foreign affairs that must be filled by extratextual considerations. In particular, modern scholarship incorrectly regards the text as largely unhelpful in resolving three central foreign affairs puzzles: (1) What is the source of foreign affairs powers conventionally believed to lie with the President but apparently beyond the President's explicit textual powers? (2) What is the source of Congress's authority to regulate foreign affairs matters that do not seem encompassed by Congress's enumerated powers? (3) How should one allocate foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the powers to set foreign policy, to enter into executive agreements, and to terminate treaties? Contrary to the trend in modern scholarship, this Article argues that the constitutional text provides a sound guide for resolving these puzzles. The authors derive four basic principles from the Constitution's text (and its history). First, the President has a 'residual' foreign affairs power from Article II, Section 1's grant of 'the executive Power.' The executive power, as described by political theorists consulted by the Framers--such as Locke, Montesquieu, and Blackstone--included foreign affairs power. By using a common phrase infused with that meaning, the Constitution establishes a presumption that the President has the foreign affairs powers that were traditionally part of the executive power. Second, the Framers thought the traditional executive had too much authority over foreign affairs, so they specifically allocated many key powers (including war, commerce, and treaty-making), in whole or in part, to other branches. These are allocations away from the President, and thus, despite having 'the executive Power,' the President cannot claim independent authority in these areas. Third, although Congress lacks a general power over foreign affairs, it has two textual fonts of foreign affairs power: powers specifically given to it (such as war and commerce) and its power to carry into execution powers granted to other branches by the Constitution. The latter is a derivative power, exercisable in conjunction with the President, to give effect to the President's executive power over foreign affairs. Finally, although the President has broad residual power over foreign affairs, that power does not extend to matters not part of the traditional executive power. Hence, the President cannot claim lawmaking or appropriations power in foreign affairs.

CONTENTS I. METHODOLOGY 550 A. The Primacy of the Constitutional Text 551 B. The Source of Confusion Regarding Originalism 556 C. More on Whose Original Understanding Counts and Why 558 [...]

Legislative history indicates that the Framers of the Constitution intended to give the president sole power for executing and overseeing the administration of federal law. This means that when it is not explicitly prohibited by statute, the president's wishes take precedence over those of any other government official. This theory of presidential power is supported by the 'Take Care Clause' and the 'Written Opinions Clause' of the constitution.

Taking the Constitution Away from the Courts. By Mark Tushnet.(*) Princeton: Princeton University Press, 1999. Pp. 242. $29.95. The courts occupy a rather privileged place in the hearts of most [...]