Harvard Law Review

Introduction

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii, for example, the Supreme Court upheld President Trump’s infamous tr...

Introduction

Buried in Harlow v. Fitzgerald, the Supreme Court’s leading decision on qualified immunity, a largely overlooked phrase invokes a mostly forgotten distinction in the law of official liability and government accountability.  Harlow is well known for the Court’s oft-quoted test for qualified immunity: “We therefore hold that government off...

Introduction

A crucial function of judicial review is not only “to say what the law is,” but also to provide the remedies to vindicate that law. Judicial review plays an especially important role when government officials act in ways that violate federal law, including when they violate the Constitution. When government officials violate the law, the judicial review functi...

Because the Supreme Court is powerful, it is largely able to fulfill its legal responsibilities. Because it is a court — because it lacks both the sword and the purse — it is vulnerable to being defied successfully by Presidents and states and punished by Congress.

This Essay argues that the Court has become powerful despite being vulnerable because it has learned t...

Introduction

In a constitutional showdown with the executive branch, the courts may seem to have limited remedial options. Once we reach a point where courts conclude that the Executive is violating the law, what can they do but order compliance? And what can we do but hope that the Executive feels compelled to comply, whether by conscience or political forces?

T...