21 Chap. L. Rev. 1 (2018)

handle is hein.journals/chlr21 and id is 1 raw text is: 










          Introduction to Constraining the
                          Executive

                          Tom  Campbell*

    The  essays in this symposium   illuminate aspects of the task
of  keeping  the  executive  branch   within  its  constitutionally
appointed  boundaries.  The  symposium   was  conceived before the
2016  elections, so its plan was not  directed toward  the current
president. Nevertheless, it is inescapable that, writing after those
elections, the authors  took  recent developments   into account.1
The  lessons to be learned from these essays, however,  have more
permanent   application than simply  for the immediate present. In
this introduction, I review the articles of the symposium   hoping
to highlight  the valuable  contribution to  separation of powers
jurisprudence  that each offers for the long term.
    This   symposium focuses on means of constraining the
executive. There  is, of course, a vibrant recent literature on what
constitutes  the kind  of executive  overreach  in  need  of being
constrained.2  This symposium takes as given that there have
been,  and  will be,  instances  of executive  action  or inaction
needing  restraint (without  becoming  embroiled   in the specifics
of any  specific example),   and   turns  its attention   to what
institutional remedies may  be available.

A.   Constraining the Executive  Through  the Courts
     The  courts are  the logical place  to seek  relief when  the
executive's action  needs  to be constrained.  However,   standing
requirements  might  preclude identifying any plaintiff qualified to
bring a case under  Article III's case or controversy requirement.


    * Professor of Law, Dale E. Fowler School of Law; Professor of Economics, George L.
Argyros School of Business and Economics, Chapman University. I am grateful for expert
research assistance by Ms. Sherry Levsen, J.D., M.L.S., M.A., of the Hugh and Hazel
Darling Law Library, Chapman University.
    1 In one instance, that of Levinson and Graber's article, their entire point of
departure deals with the specifics of President Trump, though they propose a set of
judicial responses that would apply to future presidents with characteristics similar
to his.
    2 See, e.g., Samuel Estreicher & Steven Menashi, Taking Steel Seizure Seriously:
The Iran Nuclear Agreement and the Separation of Powers, 86 FORDHAM L. REV. 1199
(2017); contra Gillian E. Metzger, 1930s Redux: The Administrative State Under Siege,
131 HARV. L. REV. 1 (2017).


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