In my first AdLaw Bridge Series post, I reviewed David Pozen‘s Self-Help and the Separation of Powers, which was just published in the Yale Law Journal. As I mentioned in that post, the article’s practical (and political) implications should not be overlooked. Professor Pozen is careful to note, repeatedly, that the purpose of the paper is not to defend the current administration’s invocation of self-help countermeasures. The paper nevertheless provides a helpful reframing of executive discretion from going-it-alone tactics to countermeasures justified by the other branches’ failure to fulfill their duties. (Whether and which countermeasures are constitutional, I’ll leave for another day.) The current administration would be smart to reframe the discourse along the lines Professor Pozen suggests.
In the Yale Law Journal Forum, William Marshall has published a great response, entitled Warning!: Self-Help and the Presidency, that discusses further the potentially dangerous practical and political (as well as constitutional) implications of Professor Pozen’s theory. Here’s a snippet from the introduction (footnotes omitted):
Professor Marshall’s 22-page essay is definitely worth a full read, and no doubt we will see many more responses to Professor Pozen’s self-help theory as the article makes such an important contribution to separation of powers theory.