Constitutional Custom and the Separation of Powers
This two-credit seminar will consider how the customary practices of government help define the respective powers of Congress and the President. The seminar will focus in part on methodology, such as how reliance on custom compares with originalist and textualist approaches to the Constitution. It will also consider modern features of congressional-executive relations and their implications for the separation of powers. After addressing these theoretical issues, the seminar will explore a number of case studies concerning both foreign and domestic affairs, including the President’s power to make recess appointments, which was recently addressed by the Supreme Court in NLRB v. Noel Canning, and the President’s power to recognize foreign governments, which the Supreme Court is considering in a pending case, Zivotofsky v. Secretary of State. The seminar will conclude by reflecting on the interrelationship of legal and political considerations in determining the separation of powers. Grades will be based on class participation, short reaction papers, and a research paper. The requirements for the research paper will be structured so that the paper can satisfy the law school’s writing requirement.
Please note that course organization and content may vary substantially from semester to semester and descriptions are not necessarily professor specific. Please contact the instructor directly if you have particular course-related questions.
Curtis A. Bradley
Constitutional Custom and the Separation of Powers 729.01