Presidential Authority and the Rule of Law (Finkelstein)
Faculty
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| Claire Finkelstein Algernon Biddle Professor of Law and Professor of Philosophy; Director, Center for Ethics and the Rule of Law cfinkels@law.upenn.edu |
Additional Information
Skills Training
Oral Presentations
Expository Writing
Grading
20% Participation,
80% Paper,
Other (class presentations, graded as part of participation.)
With Permission of Instructor
Class meets in person.
Course Continuity
Students are encouraged to stay home if you are ill or experience flu-like symptoms. If you miss a class for any reason, it is still your responsibility to make up the work missed.
I offer the following to students who miss class due to illness:
- Class sessions are regularly recorded. If you are absent due to illness or some other unavoidable circumstance, email me and I can send you an email with instructions for accessing the recording for the class session(s) you missed.
Meeting Times/Location
W 4:30PM - 6:30PM
Tanenbaum Hall 142
Category
Seminar
Credits
3.0
The view of the Framers of the U.S. Constitution was that the three branches of the federal government would be separate from the other two, yet each would serve as a check and balance on the others. In this way, no single branch could dominate the others and the independence of each would be robustly protected. Yet over time this vision has been called into question by a shift towards the executive branch, in particular in favor of the presidency, such that presidential authority has come to dominate within the executive branch, but also Congress and the Judiciary.
What are the factors that have so dramatically shifted power in the direction of the presidency? Among others, war and national security have always been driving factors in the expansion of presidential authority. In the United States, for example, both the Vietnam War and the War on Terror, following the 9/11 attacks, were accompanied by significant growth in presidential authority both inside and outside of the Commander-in-Chief arena. But even outside the domain of war, the concept of the “unitary executive” has been gaining ground ever since the Nixon administration, and that ever-changing concept has greatly impacted constitutional theories of presidential authority.
Recent developments both during and in the wake of the Trump administration have particularly put the theory of checks and balances as applied to the presidency to the test. The recent decision of the U.S. Supreme Court in Trump v. United States, which held that a former president is immune to criminal prosecution with respect to “official acts,” arguably presented a dramatic break with the Court’s prior jurisprudence with regard to presidential accountability. What led to the immunity decision? And what will the impact of that decision be on presidents in the future? What impact will the decision have on subordinates in the executive branch, and, in particular, what impact will it have on the military chain of command?
This course will examine the causes and implications of the expansion of presidential authority. It will consider the various legal aspects well as political doctrines associated with presidential authority, such as presidential privilege, the pardon power, removal authority, and presidential immunity theory, among others. Students will consider the future of the presidency and the implications of these developments for the rule of law and democratic governance.
Students will be expected to write two short papers throughout the course of the semester, 7-10 double spaced pages in length. Alternatively, students may write one longer paper with permission of the instructor. The longer paper may be used for the Senior Writing Requirement with permission of the instructor.
International and Comparative Law Learning outcomes: Demonstrate a core understanding of international and comparative law, both substantively and procedurally; Perform legal analysis in the context of international and comparative law; Communicate effectively on topics related to international and comparative law; Demonstrate an understanding of the role of international and comparative law, and their interconnection with domestic law.
Perspectives on the Law Learning outcomes: Demonstrate an understanding of how the law affects, and is affected by, the individual course topic; Perform legal analysis in the context of the individual course topic; Communicate effectively on the legal and other aspects of the individual course topic; Demonstrate the ability to use other disciplines to analyze legal issues relevant to the individual course topic, including economics, philosophy, and sociology, as appropriate.