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09/05/2013

A Further Thought on Delegation and War Power
Michael Ramsey

Mike Rappaport has reminded me, in connection with this post on delegation and war power, that Gary Lawson, the leading originalist proponent of non-delegation,  may be more open to my view than I suggested in my post.  He (Rappaport) writes:

From Gary's delegation piece:

Professor Mike Rappaport has termed this the “selective nondelegation doctrine.”  The basic insight is that as long as Congress is merely charging executive agents with the
exercise of executive power, there is no constitutional problem, and that the scope of the
executive power may vary with the context. For instance, Professor Rappaport has argued at length that Congress may give the President wide discretion to spend or not spend funds under appropriation laws, either through lump sum appropriations or through statutes that authorize spending up to a certain maximum but that do not specify the precise amount that must be spent. He makes an impressive and exhaustive historical and structural case that the “executive Power” contained in Article II includes this large measure of spending discretion. He similarly argues that Congress may give the President wide discretion to implement (or terminate) peacetime arms embargoes, and he suggests that there may be grounds for concluding more generally that the “executive Power” has a broader sweep in foreign affairs than in domestic affairs. I am in no position to dispute his conclusions, which are entirely consistent with the structure of my argument. Professor Rappaport’s work highlights the value of, and the need for, comprehensive and careful originalist work on the meaning of the cryptic phrase “[t]he executive Power.” But that is a task for another day.

This suggests that he at least has an open mind on delegations of declarations of war.

Professor Rappaport's article is here