Balance of Forces

Harold H. Bruff is the Charles Inglis Thomson Professor of Law at the University of Colorado School of Law.

Preface

xiii

PART ONE INTRODUCTION

Chapter One Origins: A Brief Constitutional History

3

(30)

Atlantic Legacy

4

(6)

Government in Colonial America

10

(3)

Revolutionary State Governments

13

(4)

The Articles of Confederation

17

(4)

The Constitutional Convention

21

(8)

Expounding and Ratifying the Constitution

29

(4)

Chapter Two The Federal Government at its Inception and Today

33

(24)

Congress

40

(3)

The Presidency

43

(2)

The Courts

45

(2)

The Interplay of Power

47

(10)

Chapter Three Approaches to Legal Analysis

57

(22)

Text

57

(2)

Original Intent

59

(4)

Structure

63

(1)

Institutional Competence

64

(1)

Historical Practice

65

(2)

Values

67

(3)

An Interpretive Strategy for Separation of Powers Controversies

70

(9)

Preserve the Rule of Law by Requiring the Executive to Obey Statutes

73

(2)

Balance the Autonomy and Accountability of Each Branch, While Preserving the Rule of Law

75

(1)

Maintain the Separation of Legislative and Executive Personnel and Functions

75

(1)

Maintain the Overall Balance of Power Among the Branches

76

PART TWO ESTABLISHING AND MAINTAINING THE RULE OF LAW

Chapter Four Judicial Enforcement of Constitutional and Statutory Duties

79

(14)

Marbury Establishes the Rule of Law

79

(8)

Methods for Obtaining Judicial Review of Executive Action

87

(6)

Chapter Five The Outer Limits of Executive Power

93

(34)

Executive Action Without Statutory Authorization

94

(8)

The Limits of Implied Statutory Authority

102

(4)

The Executive's Duty to Comply with Statutory Limitations

106

(8)

Who Interprets the Constitution?

114

(7)

Synthesis: Executive Power After 9/11

121

(6)

Chapter Six Statutory Empowerment of the Executive

127

(46)

The Delegation Doctrine

127

(17)

Implementation of Statutes by Presidents and Administrators

144

(10)

Executive Orders

154

(9)

Theories of Legislation and Statutory Interpretation

163

(10)

PART THREE DEFINING THE ROLE OF THE COURTS

Chapter Seven Appointing and Empowering the Judiciary

173

(30)

Nomination and Confirmation of Judges

173

(13)

Statutory Control of Federal Jurisdiction

186

(9)

Allocations of the Judicial Power

195

(8)

Chapter Eight Judicial Self-Restraint

203

(18)

Political Questions

205

(2)

Standing

207

(9)

Other Threshold Defenses

216

(5)

PART FOUR FUNDAMENTAL CHECKS AND BALANCES

Chapter Nine Vetoes

221

(24)

The President's Veto

222

(9)

Legislative Vetoes

231

(14)

Chapter Ten Money

245

(28)

Congressional Appropriation of Funds

245

(12)

Executive Spending Discretion

257

(9)

The Line-Item Veto

266

(7)

PART FIVE THE AUTONOMY OF THE BRANCHES

Chapter Eleven Congressional Autonomy

273

(18)

Exclusion and Expulsion

274

(5)

Term Limits

279

(1)

The Speech or Debate Privilege

280

(11)

Chapter Twelve Immunities of Officers

291

(20)

Immunities of Executive Officers from Civil Liability

292

(12)

Judicial Immunities from Civil Liability

304

(2)

Presidential Pardons

306

(5)

PART SIX PROMOTING ACCOUNTABILITY

Chapter Thirteen Impeachment

311

(20)

"High Crimes and Misdemeanors"

312

(15)

A Judicial Role?

327

(4)

Chapter Fourteen Information and Accountability

331

(36)

Confidentiality in Congress and the Courts

331

(4)

Executive Privilege and the Courts

335

(21)

Executive Privilege and Congress

356

(11)

Chapter Fifteen Congressional Power to Regulate Accountability

367

(22)

Regulating the Executive

367

(11)

Regulating the Judiciary

378

(2)

Congressional Self-Regulation

380

(9)

PART SEVEN CONTROL OF ADMINISTRATION BY PRESIDENT AND CONGRESS

Chapter Sixteen Executive Branch Appointments

389

(22)

The Appointments Clause and the Incompatibility Principle

390

(14)

Confirmation of Nominees

404

(4)

The Civil Service

408

(3)

Chapter Seventeen Restricted Removals and the Independence of Agencies

411

(40)

The Power of Congress to Restrict Removal

411

(20)

Independent Prosecution

431

(10)

The Special Status of the Independent Agencies

441

(10)

Chapter Eighteen Oversight of Policy by President and Congress

451

(26)

Congressional Oversight of Administration

452

(3)

The President's Power to Manage Administration

455

(22)

PART EIGHT CONCLUSION

Chapter Nineteen Changing the Rules: Constitutional Amendments

477

(8)

Adjustments to the Separation of Powers

477

(2)

Who Decides an Amendment's Validity?

479

(4)

The Convention Quandary

483

(2)

Chapter Twenty The State of the Union

485

(10)

The Law of Separation of Powers in Operation

485

(5)

A Skeptical View of Constitutional Reform

490

(5)

Appendix The Constitution of the United States

495

(18)

Table of Cases

513

(8)

Index

521

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