Elias Neibart (Harvard Law School JD ’25) has posted “External Restraints” on Article II? (79 Vand. L. Rev. En Banc (forthcoming 2026)) (19 pages) on SSRN. Here is the abstract:
It’s understood that, under Article III, Congress has plenary power over the lower federal courts. But that doesn’t mean Congress’s authority is unlimited. “External restraints”–found in constitutional provisions outside Article III–curb Congress’s otherwise unlimited power. For example, Congress can’t strip jurisdiction of the federal courts in a manner that violates the Due Process Clause. Simply put, Article III itself gives Congress unlimited power, but that power is still limited by other, non-Article III restraints.
But, thus far, scholars haven’t applied the concept of external restraints to Article II. This Essay proposes that the language of external restraints and its associated analytical framework should become an explicit part of debates surrounding executive power. Why?
Well, often, debates about executive power focused on Article II and Article II alone. Both sides of the debate usually agreed that Congress can’t infringe core Article II powers. So, much of the time was spent debating how big that “core” really was. But those old debates about the scope and contours of Article II have largely been settled. Under current doctrine, when it comes to removal, pardons, or prosecutorial decisions–just to name a few–the executive branch’s power is described as “plenary.” Congress can’t touch those “conclusive and preclusive” powers. Nonetheless, some still insist that there are limits on these powers. But those limits–if they exist at all–can’t be found in Article II itself. After all, these powers are “plenary.” Those limits would have to be located elsewhere.
Given that, this Essay proposes a more doctrinally sound way to analyze these sorts of disputes: First, we can ask whether the President is acting in his “conclusive and preclusive” zone of authority. And, if so, we can then ask whether any external restraints, outside of Article II, limit that otherwise plenary power. We can handle Article II questions the same way we handle Article III ones.
In fact, in some Article II cases, the Court has already flirted with that exact analytical framework. But courts and scholars-especially those who support robust interpretations of Article II—should more explicitly embrace this framework. Doing so is more consistent with modern doctrine. On top of that, this approach ensures that finding limits on executive power won’t come at the expense of diluting the President’s conclusive and preclusive authorities. If any limits on those core powers exist, they wouldn’t come from chipping away at Article II. Such limitations would come only from other constitutional provisions, leaving Article II entirely intact. That matters. It means that limitations on core executive powers can be derived only from the Constitution itself—not from Congress or the courts.
(Via Larry Solum at Legal Theory Blog, who says “Highly Recommended”.)
Posted at 6:04 AM