February 13, 2020

Unilateralist Presidencies and Submissive Legislatures: Rebalancing Our Separation of Powers

On February 6, 2020, ACS held a symposium on the future of separation of powers and how Congress might once again perform its core legislative duties.

Opening Keynote: Rep. Jamie Raskin (MD-8)

Panel 1: The Rise of the Unilateralist Presidency

Featuring: Kimberly Atkins, Hon. Brad Miller, Erica Newland, Victoria Nourse, and Sai Prakash.

Panel 2: Protector-in-Chief: Cooption of National Security by the Executive Branch

Featuring: Mieke Eoyang, Gene Healy, Marty Lederman, Hina Shamsi, and Bijal Shah.

Lunch Keynote: Hon. Jeh Charles Johnson, former Secretary of Homeland Security

Panel 3: Imagining a Resurgent Congress

Featuring: Simon Lester, Reta Jo Lewis, Zachary Price, Kate Shaw, and Donald Sherman.


Read a summary of the event. The scope of presidential power was a key source of debate among the framers of the Constitution. Some, like Hamilton, advocated for an “elective monarch,” while Benjamin Franklin supported a “plural presidency” of more than one executive, and until very near the end of the convention, the president was to be elected by the Congress. Ultimately, it is the legislative power described in the Constitution’s first article that is most expansive, including the powers to declare war, to borrow and coin money, and to make “all laws necessary” to carry out its powers. Almost 250 years later, with the Trump administration vowing to fight “all the subpoenas” issued by Congress in the impeachment inquiry, successive administrations sparring with Congress over presidential decisions to engage in military action abroad without congressional authorization, and the U.S. Attorney General’s (and perhaps some Supreme Court Justices’) embracing of the “unitary executive theory,” where does that leave Congress? Can it conduct effective oversight of the executive branch? How might it reassert itself as a muscular branch of government? Our symposium discussed the state of the future of separation of powers and imagined how Congress might once again perform its core legislative duties.

Resources on the Separation of Powers 

·        ACS Issue Brief: The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory by Victoria Nourse

·        A Real Emergency: Executive Power under the National Emergencies Act (Panel discussion co-sponsored by ACS)

·        Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years by Gene Healy

·        The Commander in Chief at the Lowest Ebb – A Constitutional History by Martin S. Lederman and David J. Barron

·        The 40-Year War by Rep. Brad Miller

·        Preventing the Next Trump by Rep. Brad Miller

·        I worked in the Justice Department. I hope its lawyers won’t give Trump an alibi. by Erica Newland

·        The Imbecile Executive by Sai Prakash

·        Funding Restrictions and Separation of Powers by Zachary Price

·        The Attorney General’s Disruptive Immigration Power by Bijal Shah

·        White Supremacist Violence Is On the Rise. Expanding the FBI’s Powers Isn’t the Answer. by Hina Shamsi

·        The White House and Congress Are Heading for a Collision. Who Will Win? by Kate Shaw