Sanford Levinson (University of Texas Law School) & Mark Graber (University of Maryland - Francis King Carey School of Law) have posted The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order (Chapman Law Review, Forthcoming) on SSRN. Here is the abstract:
We challenge the almost unexamined assumption that the constitutional powers of the president can be blithely abstracted from the occupant of the White House so that constitutional decision makers may not take into account whether they are making decisions for a constitutional order functioning within normal parameters or a constitutional order reeling from the collapse of crucial assumptions underlying the constitutional text and ordinary constitutional practice. We begin by briefly elaborating the consensus that Donald Trump lacks the constitutional, even if not the “legal,” qualifications to be president of the United States. The next section discusses how Publius in The Federalist Papers closely yoked presidential powers to the character of the office-holder. We then note how such other interpretive exercises as plays, athletics and contract law routinely make adjustments when events undermine the assumptions underlying the authoritative text, whether that text be instantiated in a script, play or bargain. American constitutional practice, we continue, has been historically far more responsive to Publian failures than contemporary claims about executive power under President Trump acknowledge. Such decisions as Brown v. Board of Education and New York Times Co. v. Sullivan are far better explained as judicial responses to constitutional frauds perpetrated by the Jim Crow South than the more abstracted reasons given by the justices in their opinions. Brown, in fact, provides a model for thinking about limiting the power of the anti-Publian president. Such judicial strategies include focusing on actual motives for executive action, taking rationality standards seriously, and limiting wherever possible official powers when the officeholder or officeholders demonstrate that they are incapable of using or unwilling to use those powers responsibly or consistently with established constitutional norms.
