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91 Fordham L. Rev. 2195 (2022-2023)
The President's Subjective and Objective Legal Obligations

handle is hein.journals/flr91 and id is 2255 raw text is: ARTICLES THE PRESIDENT'S SUBJECTIVE AND OBJECTIVE LEGAL OBLIGATIONS Shalev Gad Roisman * Congress has granted the President enormous power. This is well known, but how we are to assess the legality of exercises of such power still is not. Put simply, there is no clear framework to understand the legality of presidential exercises of statutory power. Scholars have noticed this and, in response, have largely turned to administrative law for guidance. This turn to administrative law is somewhat intuitive but misguided. Administrative law is a highly reticulated body of law that has developed over decades to regulate executive branch agencies, not the President It has focused on legitimizing agency power in the face of agencies' lack of electoral accountability while respecting agency expertise. The President, however, has neither the electoral deficit nor the expertise that has been central to the development of administrative law. For these reasons and others, administrative law is not a good place to start in identifying a legal framework for assessing the President's conduct. We ought to focus on the President specifically. But how? This Article suggests looking to an obvious, but largely overlooked, place: the statutory text. It turns out that the text of the statutes delegating power to the President take two basic forms. One is objective : it provides the President power when a certain condition exists in the world. The other is * Associate Professor of Law and Distinguished Early Career Scholar, University of Arizona James E. Rogers College of Law. The author served in the Office of Legal Counsel in the U.S. Department of Justice from 2015 to 2017. The views expressed are the author's own and are based entirely on publicly available materials. The author would like to thank Derek Bambauer, Jane Bambauer, Evan Caminker, Andy Coan, Daniel Deacon, Jean Galbraith, Leah Litman, Toni Massaro, Julian Davis Mortenson, Victoria Nourse, Eloise Passachoff, Alex Platt, Richard Primus, Brian Richardson, Micah Schwartzman, Peter Strauss, Louis Virelli III, Chris Walker, and Andrew K. Woods, as well as participants in the American Constitution Society's Junior Scholars Public Law Workshop, the Association of American Law School's New Voices in Administrative Law program, the Junior Scholars Legal Research Workshop, the Junior International Law Scholars Association Annual Meeting, the thirteenth Constitutional Law Colloquium at Loyola University Chicago School of Law, the University of Michigan Law School's Public Law Workshop, and the Virginia-Duke Foreign Relations Law Roundtable. The author is grateful to Vinny Venkat for excellent research assistance and to multiple members of the University of Arizona Law Library for tireless help finding sources. I am particularly grateful to Diana Newmark for her insights and support, and to Deborah Hellman for asking a question at a workshop that inspired this project. 2195