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1 results

  • 10 - The Powers of the President and the Executive Branch in a Period of Ferment

  • Richard H. Fallon Jr., Harvard Law School, Massachusetts
  • Book:
    The Changing Constitution
    Published online:
    21 August 2025
    Print publication:
    21 August 2025, pp 268-294

  • Summary

    This chapter addresses the Supreme Court’s recent, partly paradoxical lines of cases involving issues of presidential power, prerogative, and immunity. On the one hand, the Court has held that Article II and the Constitution’s overall structure endow the president with sweeping authorities and prerogatives. These include powers to control a “unitary” executive branch by removing officials who refuse to do the president’s bidding and, separately, a prerogative-like “immunity” from prosecution for many unlawful official acts, including ones that would constitute serious crimes if committed by anyone else. On the other hand, the Court has sought to limit the powers of agencies within the executive branch, which the president heads, on the theory that post–New Deal agency officials were allowed to assume functions that the Constitution reserves either to Congress or to the courts. Nowhere, this chapter explains, has the Court’s conservative supermajority pursued, or does it seem more likely to continue to pursue, a doctrinally revisionist agenda with more sweeping practical consequences.