83 Geo L.J. 217 (1994-1995)
The Most Dangerous Branch: Executive Power to Say What the Law Is

handle is hein.journals/glj83 and id is 245 raw text is: ARTICLE
The Most Dangerous Branch: Executive Power to
Say What the Law Is
MICHAEL STOKES PAULSEN*
The power to interpret federal law-he power, in Marbury v. Madison's
famous words, to say what the law is--is not a specifically enumerated or
delegated power of any branch of the federal government. Rather, it is an
implied power incidental to each branch's functions. The courts interpret law
as a consequence of their duty to decide cases and controversies of a
certain description, not as a result of a constitutional assignment of a special
competence or superiority vis-a-vis the other branches in this regard. Similarly,
the executive branch interprets the law in the course of performing its duties to
take care that the laws are faithfully executed.
Professor Paulsen's article considers executive branch power to interpret
federal law. His thesis is that, consistent with the Constitution's separation of
powers among coordinate, independent branches, the President has co-equal
interpretive authority with the courts (and with Congress). Moreover, the
President's interpretive authority is completely independent within the sphere of
his governing powers. The President is not literally bound by the legal views of
the other branches, not even the pronouncements of the Supreme Court, when
considering the law's requirements with respect to exercise of any of those
powers entrusted to him.
I.  INTRODUCTION .....................................             219
II. THE CASE FOR EXECUTIVE LEGAL REVIEW ..............              228
A. THE POSTULATE OF COORDINACY .......................         228
(1)  Publius (James Madison) .......................      229
(2) James Wilson ................................. 238
B. THE ANALOGY OF EXECUTIVE REVIEW TO JUDICIAL
REVIEW: THE THEOREM OF MARBURY AND THE
FEDERALIST NO. 78  ..............................          241
* Associate Professor of Law, University of Minnesota Law School. My thanks to the
many people who read and commented on earlier versions of this article, none of whom
should be blamed for what I say: Akhil Amar, Frank Easterbrook, David Engdahl, Dan
Farber, Phil Frickey, Dan Gifford, Eric Grant, John Harrison, Sam Issacharoff, Gary
Lawson, Douglas Laycock, Sandy Levinson, Richard Murphy, Suzanna Sherry, Michael
Tonry, and the participants at the University of Texas and University of Minnesota faculty
workshops. My thanks also to the McKnight/Land Grant Fellowship and the Fesler Re-
search Grant for financial support and to Richard Murphy for research assistance.

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