Histories of Presidential Power: Conference at Stanford, May 2022

I’m thrilled to be organizing this conference with Michael McConnell and the Stanford Constitutional Law Center, May 20-21, 2022 (open to the public):

Histories of Presidential Power

It is no surprise that an unprecedented Presidency in the United States should be an occasion for new thinking about the design of Article II of the U.S. Constitution and the scope of executive power in America. But in fact, this rethinking has been happening for some time now, in the form of an emerging body of originalist historical work on core features of Article II and the President’s relation to other branches. Although originalist inquiry emerged in the twentieth century as a decidedly conservative phenomenon, and although the contemporary Supreme Court justices most associated with originalism have favored expansive presidential power, the new historical work on the presidency (from across the political spectrum) offers more evidence against the “imperial” presidency and broad executive discretion.

Some newer work on Article II – authored by the scholars proposing this symposium – addresses other core parts of Article II and finds an original design of a constrained Presidency, subordinate in many respects to the Congress. New research on English and colonial institutional design and practice offer insights into Article II. New readings of the Constitution’s Vesting Clause and of the First Congress spark a fresh debate about legislative delegations to the executive branch and the scope of presidential power. New histories of emergencies in American history help us understand the evolution of executive power, especially after the debate about Trump’s border wall spending and during pandemic measures in the Covid-19 era. New interpretations of nineteenth-century administrations help us understand the construction of presidential power – and the emergence of the separation of powers — over time. And new research into the eighteenth century has sparked new legal debates about fiduciary constitutionalism and non-delegation of legislative power. This conference brings together many authors on opposite sides of these debates to discuss, synthesize, dig deeper into the past, and move forward into the future of constitutional interpretation.

Panel 1: How the Presidency Emerged from Colonial, English, and Founding Era Law and Practice
Andrew Kent (Fordham), Michael McConnell (Stanford), Julian Mortenson (Michigan), Eric Nelson (Harvard)
Maeve Glass (Columbia), commenting

Panel 2: The First Congress and Executive Power (FRIDAY)
Aditya Bamzai (Virginia), Lindsay Chervinsky (GW, SMU, author The Cabinet: George Washington and the Creation of an American Institution), Mike Ramsey (San Diego), Jed Shugerman (Fordham), Ilan Wurman (Arizona St). Commenting/Moderating: Gerhard Casper (Stanford). Commenting: Jonathan Gienapp (Stanford)

Panel 3: What Article II History Teaches About Emergency Powers (FRIDAY)
Aziz Huq (Chicago), Cristina Rodriguez (Yale), Bernadette Meyler (Stanford), Norm Spaulding (Stanford)
Ingrid Wuerth (Vanderbilt), commenting. Anne Joseph O’Connell (Stanford), moderating.

Panel 4: Early Presidential Construction of Constitutional Power
Niko Bowie & Daphna Renan (Harvard), Alison LaCroix (Chicago), Nicholas Parrillo (Yale). Commenting: Jack Rakove (Stanford)

Panel 5: Public Fiduciaries and the History of Article II
Ethan Leib & Jed Shugerman (Fordham) and Seth Davis (Berkeley). Commenting/moderating: Diego Zambrano (Stanford), Elizabeth Reese (Stanford)

Panel 6: (Non-)Delegation
Will Baude (Chicago), Philip Hamburger (Columbia), Jenn Mascott (GMU/Scalia), Julian Mortenson (Michigan), Nick Parrillo (Yale). Commenting: Gillian Metzger (Columbia)

To ensure the safety and public health of our Stanford University community, approved visitors must attest that they have screened themselves prior to arriving on Stanford campuses, do not have COVID-like symptoms, and that they are not in a restricted status requiring isolation or quarantine.

All visitors coming to a Stanford campus must attest that they meet at least one of two criteria:

1) be fully vaccinated against COVID-19

2) receive a negative COVID-19 test within 72 hours prior to arrival onsite

To attest, visitors must complete the Stanford Visitor: Daily COVID-19 Health Attestation, on the day of the event. Both the visitor and the Stanford contact will receive copies of the completed attestation form. Any visitor unable to attest, is NOT approved for onsite access.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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