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George Winterton - One of the best experts on this subject based on the ideXlab platform.
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The Relationship between Commonwealth Legislative and Executive Power
Adelaide Law Review, 2020Co-Authors: George WintertonAbstract:The Executive Power of the Commonwealth has largely been neglected both by the High Court and by commentators and this relative neglect of Power is reflected in constitutional commentary for which High Court cases represent primary authority. The relationship between Commonwealth legislative and Executive Power is examined.
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the limits and use of Executive Power by government
Federal law review, 2003Co-Authors: George WintertonAbstract:The Executive Power of the Commonwealth is largely neglected, both by the High Court and by commentators, receiving scant attention in comparison with the Commonwealth's legislative and judicial Powers. This disparate treatment reflects the fact that the exercise of Executive Power raises fewer justiciable controversies than legislative and judicial Power, but an additional factor is that Executive Power has always been something of a mystery, frequently being defined merely as the 'residue' of governmental Powers after legislative and judicial Powers are excluded.
Corinna Barrett Lain - One of the best experts on this subject based on the ideXlab platform.
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Passive-Aggressive Executive Power
Maryland Law Review, 2020Co-Authors: Corinna Barrett LainAbstract:This contribution to the 2013 Constitutional Law Schmooze poses a question about the downside of Executive Power, at least in the enforcement context: if Executive Power to enforce the law presupposes the duty to use it, what happens when the Executive branch would rather not? The answer is passive-aggressive Executive Power, and in this essay I use five factual contexts to illustrate five variations of what I mean. Here are the five responses: (1) do nothing and hope nobody notices, (2) do something silly, and make a mockery of the entire enterprise, (3) say that you would do something, but you are too busy, (4) say that you would do something, but you are not competent, and (5) say in a moment of rare self-awareness, “fine, I’ll do it, but let’s be clear — I don’t want to.” I first flush out these responses with five examples — the death penalty, driving violations, drugs, deportation, and DOMA — then I offer a few thoughts as to how these passive-aggressive responses compare.
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Passive-Aggressive Executive Power
2018Co-Authors: Corinna Barrett LainAbstract:What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (�DOMA�) have in common, besides the letter �d�? The answer is passive-aggressive Executive Power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind�and at the outset, I set aside the �Just say no� response, which is an exercise of Executive Power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, �Fine, I�ll do it, but let�s just be clear�I don�t want to.� In the discussion that follows, I first flush out these responses with my five examples�the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of Executive Power.
Anne Twomey - One of the best experts on this subject based on the ideXlab platform.
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pushing the boundaries of Executive Power pape the prerogative and nationhood Powers
Melbourne University Law Review, 2010Co-Authors: Anne TwomeyAbstract:A majority of the High Court in Pape v. Commissioner of Taxation accepted that the Commonwealth has Executive Powers beyond those derived from statute, the prerogative and its capacities as a person. This fourth category of Executive Power, left nameless by the Court but generally described as the ‘nationhood’ Power, remains ill-defined and ill-confined. This article explores the limits on the different categories of Executive Power, why it was perceived necessary to imply a nationhood Power, whether this justification is adequate and how such a Power might be limited.
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Pushing the Boundaries of Executive Power – Pape, the Prerogative and Nationhood Powers
Melbourne University Law Review, 2010Co-Authors: Anne TwomeyAbstract:A majority of the High Court in Pape v. Commissioner of Taxation accepted that the Commonwealth has Executive Powers beyond those derived from statute, the prerogative and its capacities as a person. This fourth category of Executive Power, left nameless by the Court but generally described as the ‘nationhood’ Power, remains ill-defined and ill-confined. This article explores the limits on the different categories of Executive Power, why it was perceived necessary to imply a nationhood Power, whether this justification is adequate and how such a Power might be limited.
He Yongjun - One of the best experts on this subject based on the ideXlab platform.
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Research on Policy Executive Power from the Perspective of Joined-Up Government
Journal of Huangshi Institute of Technology, 2020Co-Authors: He YongjunAbstract:Policy Executive Power has become the academic research focus in recent years.With the decline of new public management theory,the angles-Saxon countries have the Joined-Up Government reform,which has attracted widespread attention,providing a new perspective for the scholars when they are doing researches on policy Executive Power.In this paper,the author discusses the structure of the Joined-Up Government,the partnership and the correlation between its operating mechanism and improvement of the government's policy Executive Power.
Robert J. Reinstein - One of the best experts on this subject based on the ideXlab platform.
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The Limits of Executive Power
The American University law review, 2020Co-Authors: Robert J. ReinsteinAbstract:Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential Power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential Powers, nor does he meaningfully explain the extent to which those Powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to several current theories and cases concerning presidential Power.The construction of the presidency and the allocation of legislative and Executive Powers can be understood only by an examination of the historical experiences that influenced the Framers. Prominent among these were the preceding two centuries of constitutional developments in England which critically influenced the allocation of Executive and legislative Power in the Constitution. The central lesson of these historical experiences was that proscriptive legislative restraints on Executive Power were necessary but not sufficient to prevent autocracy. any of the English proscriptions on the exercise of Executive Power were included in our Constitution, but there was also a massive transfer of previously held Executive Power to the legislature. Most of the prerogatives that had been exercised by the King were vested completely in Congress, prohibited to the President, or omitted altogether from the Constitution. Of the small number delegated to the Executive, only one was the same as its royal counterpart; the others were more limited or structurally shared with the Legislative Branch.I examine this history in detail and apply its underlying principles to develop a general theory of presidential Power. In lieu of creative but ultimately inconclusive arguments over indefinite Powers that are said to be “Executive” in nature, implied Powers should be tied to, and derived from, the Powers expressly vested in the President in Article II. I refute the propositions that the Vesting Clause is a residual source of plenary Executive Power and that there is a presidential “completion” Power. I apply and elaborate on these principles in the context of the President’s two most important implied Powers - executing the laws and developing and implementing foreign policy. The President has broad discretion in choosing how to exercise these Powers, but they are not plenary in nature. They are subject to three basic limitations: (1) the President may not, without congressional authorization, use these Powers to change domestic law or create or alter existing legal obligations; (2) these Powers are subject to regulation by Congress; and (3) in the event of a conflict between the exercise of these Powers and congressional legislation, the latter prevails. Finally, I argue that these limits on presidential Power have continuing validity despite the enormous changes in the country since these principles were established. We are now in much the same situation as England in the 18th century - the real Power of the Executive is much greater than its nominal legal Power. Although the Framers viewed the President as a necessary check on an otherwise dominant Congress, the present reality is now the reverse. The Executive has become the most Powerful branch of government. There is no reason to adopt legal theories that would further enhance Executive Power.