The outer limits of federal power over the States, and presidential power vis-a-vis Congress, have been shrouded in mystery throughout the life of the Constitution. Recent situations involving these issues include criticism by Democrats of unilateral action by President George W. Bush, such as with respect to the war on terrorism, and criticism by Republicans of unilateral action by President Barack Obama, such as aiding in the overthrow of Khadafi in Libya without congressional approval, waiving deportation for some aliens illegally in the United States, and waiving for one year the employer mandate in the Affordable Care Act. As the swing vote on the Court, Justice Kennedy’s views on the doctrines of separation of powers and federalism have been, and would be in the future, critical in resolving these kinds of issues. This article discusses Justice Kennedy’s views against the backdrop of the Court’s separation of powers and federalism jurisprudence.
Available at: http://works.bepress.com/randall_kelso/15/