Recently published, in the Capital University Law Review, Louis Fisher (Scholar in Residence at the Constitution Project, formerly Specialist in Constitutional Law at the Law Library of Congress): Presidential Residual Power in Foreign Affairs (47 Cap. U. L. Rev. 491 (2019)). Here is the abstract:
At times, Presidents have claimed “inherent” powers, but those assertions have been repudiated by both the Supreme Court and Congress. In Zivotofsky v. Kerry, Justice Clarence Thomas referred to another source of presidential power: a “residual foreign affairs power.” This article analyzes the origin and legitimacy of presidential residual powers, a term that has at least six different meanings.
I agree with a lot more of this article than one might expect, considering it is a critique of the residual powers theory that I endorse.
Posted at 6:05 AM