Michael McConnell (Stanford Law School): "The President Who Would Not Be King: Executive Power and the Constitution"

Wed, Nov 28, 2018, 4:30 pm to 6:30 pm
Location: 
Friend Center Lecture Hall, Room 101

ABSTRACT: Professor McConnell’s lectures will address executive power and its limits under the U.S. Constitution.  His lectures will argue that the actual process of formulating the executive power at the Constitutional Convention has mostly been overlooked, perhaps because the real work was done by three committees operating behind the scenes. What they accomplished is more nuanced than either of the two major conflicting views taken today; the resulting system differs in many respects from the current conventional understanding, but it is neither more aggressively executive nor anti-executive; it is merely different in lots of interesting ways.

McConnell will also address important issues facing separation of powers today, including the problem of the administrative state.  He will present a new approach to the delegation question, including a presidentialist view of supervision of executive officers and an anti-presidentialist view of non-enforcement.  His second lecture will address the powers of peace and war, in which he will claim that the president does not have the exclusive power over foreign affairs that the Court attributes to it, a defense of a narrow understanding of the Commander in Chief power, and a moderate interpretation of presidential authority to initiate hostilities.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to the summer of 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit. McConnell has held chaired professorships at the University of Chicago and the University of Utah, and visiting professorships at Harvard and NYU. He has published widely in the fields of constitutional law and theory, especially church and state, equal protection, and the founding. In the past decade, his work has been cited in opinions of the Supreme Court second most often of any legal scholar. He is co-editor of three books: "Religion and the Law," "Christian Perspectives on Legal Thought" and "The Constitution of the United States." McConnell has argued fifteen cases in the Supreme Court. He served as law clerk to Supreme Court Justice William J. Brennan, Jr. and is Of Counsel to the appellate practice of Kirkland & Ellis.

Commentators:

Gillian Metzger, Stanley H. Fuld Professor of Law, Columbia Law School
Professor Metzger writes and teaches in the areas of constitutional law, administrative law, and federal courts.

Her recent publications include "1930s Redux: The Administrative State Under Siege," 131 Harv. L. Rev. 1; “The Constitutional Duty to Supervise,” 124 Yale Law Journal 1836, 2015; “Agencies, Polarization, and the States,” 115 Columbia Law Review 1739, 2015; “Administrative Constitutionalism,” 91 Texas Law Review 1897, 2013; “Foreword: Embracing Administrative Common Law,” 80 George Washington Law Review 1293, 2012; and "Gellhorn & Byse’s Administrative Law: Cases and Comments, 11th ed.” (as editor), (with Peter L. Strauss, Todd D. Rakoff, and Cynthia R. Farina), Foundation Press, 2011. Metzger frequently files amicus briefs in major constitutional and administrative law challenges before the Supreme Court and other courts, including Whole Women’s Health v. Hellerstedt in the October 2015 term. She served as a law clerk to Supreme Court Justice Ruth Bader Ginsburg and Judge Patricia M. Wald of the U.S. Circuit Court of Appeals for the District of Columbia.

Eric Nelson, Robert M.  Beren Professor of Government, Harvard University
His research focuses on the history of political thought in early-modern Europe and America, and on the implications of that history for debates in contemporary political theory. 

Nelson is the author, most recently, of "The Royalist Revolution: Monarchy and the American Founding" (Harvard/Belknap, 2014), which received the Society of the Cincinnati History Prize and was named a Choice Outstanding Academic Title of 2015, as well as a Choice "Top 25 Books for 2015" selection. His other books include "The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought" (Harvard/Belknap, 2010), which received the Erwin Stein Prize and the Laura Shannon Prize in Contemporary European Studies and was named a Choice Outstanding Academic Title of 2010, and "The Greek Tradition in Republican Thought" (Cambridge University Press, 2004). His essays have appeared in a wide range of scholarly journals and edited volumes. Nelson received his A.B. summa cum laude from Harvard University (1999) and his Ph.D. from The University of Cambridge (2002). 

Jeffrey Tulis, Department of Government, The University of Texas at Austin
Professor Tulis's interests bridge the fields of political theory and American politics, including more specifically, American political development, constitutional theory, political philosophy and the American presidency.

His publications include "The Presidency in the Constitutional Order" (LSU, 1981; Transaction, 2010), "The Rhetorical Presidency" (Princeton, 1987; new edition, 2017), "The Constitutional Presidency" (Johns Hopkins 2009), "The Limits of Constitutional Democracy" (Princeton, 2010) and, most recently, "Legacies of Losing in American Politics" (Chicago, 2018) His book, "The Rhetorical Presidency" won the 2018 APSA Legacy Ward. Four collections of essays on "The Rhetorical Presidency" with responses by Tulis have been published, including a special double issue of "Critical Review: An Interdisciplinary Journal of Politics and Society," (2007), where his book is described as "one of the two or three most important and perceptive works written by a political scientist in the twentieth century.”  Tulis has served as President of the Politics and History Section of the American Political Science Association. He received the President's Associates Teaching Excellence Award at the University of Texas. He  was a Laurance S. Rockefeller Visiting Fellow at the University Center for Human Values at Princeton. 

Amanda Tyler, Professor of Law, Berkeley Law
Professor Tyler’s research and teaching interests include the Supreme Court, federal courts, constitutional law, civil procedure, and statutory interpretation.

Her book, "Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay," was published in 2017 by Oxford University Press.  Professor Tyler is also a co-editor of Hart and Wechsler’s "The Federal Courts and the Federal System" (Foundation Press) (with Richard H. Fallon, Jr., Jack L. Goldsmith, John F. Manning, and David L. Shapiro). Recent publications include: A “'Second Magna Carta': The English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege," 91 Notre Dame Law Review 1946 (2016); "Habeas Corpus and the American Revolution," 103 California Law Review 635 (2015); and "The Forgotten Core Meaning of the Suspension Clause," 125 Harvard Law Review 901 (2012).  Prior to entering academia, Professor Tyler served as a law clerk to the Honorable Guido Calabresi at the United States Court of Appeals for the Second Circuit and the Honorable Ruth Bader Ginsburg at the Supreme Court of the United States. She also practiced as an associate with the law firm of Sidley & Austin in Washington, D.C.

Cosponsored by the James Madison Program on American Ideals and Institutions, the Program in Law and Public Affairs, the Center for the Study of Democratic Politics, Department of Politics and the Department of Religion.