The foreign affairs origins of domestic executive supremacy

The useful part

The past several terms have entrenched the court's ongoing determination to expand presidential authority. Less appreciated is that this process began far earlier, and in connection with presidential authority in foreign affairs. For one thing, it established the template for the current, more general trend.

How it works

• For another, as the current war in Iran demonstrates, it provides a cautionary tale.
• The modern trend toward an increasingly unchecked executive dates back at least to the Reagan administration, along with the rise of originalism and its institutional champion, the Federalist Society.
• An early manifestation came in the form of the so-called "unitary executive" theory, the idea that the president's control over the executive branch should be subject to few, if any, congressionally imposed...
• Justice Antonin Scalia passionately articulated the theory in his dissenting opinion in Morrison v.
• Olsen, objecting to statutory constraints on the president's ability to remove an independent counsel.

What to take from it

Majorities then came to move beyond unitary executive theory to endorse expanded executive power generally. As in much else, the advent of Donald Trump represents a quantum leap in the assertion of presidential authority, often in ways formerly considered all but unthinkable....

Details worth keeping

In time, such dissents became majority opinions.