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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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