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Our Twenty-First Century Constitution

PDF · Peter L. Strauss · Dec-15-2009 · 62 Vand. L. Rev. En Banc 121 (2009)

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight.  Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes — whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity for effective presidential oversight of the execution of federal law or not.  The Constitution does not require more than this and, Professors Calabresi and Yoo to the contrary notwithstanding, the Court should and surely will avoid a result imperiling the wide range of governmental agencies Congress has created, the President has overseen, and the courts have treated as legitimate wielders of government authority over the many years since the Constitution was written.



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