The University of Richmond Law Review is proud to present its 2017 Symposium Issue: Defining the Constitution’s President Through Legal and Political Conflict. The Law Review hosts this annual discussion in an effort to assemble the nation’s leading voices to discuss current, critical issues in the law with fellow students and the greater Richmond community. This year’s symposium focused on how the American presidency has been shaped under the Obama and Trump Administrations through clashes with other branches of the federal government, as well as state attorneys general.

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The most powerful elected position in the United States today, with respect to checking any perceived overreach of presidential or federal power, is not in Congress, the House of Representatives or the Senate, but is among the fifty state attorneys general.

When Attorney General Shapiro of the Commonwealth of Pennsylvania was asked to run for the United States Senate, he declined saying, “I’m going to run for attorney general because that is the most impactful elected position in America today.” I think he is right.

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Every separation-of-powers case quickly encounters a fundamental threshold inquiry that remains surprisingly difficult, even after almost 230 years of practice under the United States Constitution: what is the nature—legislative, executive, or judicial—of the contested power exercised? The three cognate vesting clauses in Articles I, II, and III use these undefined terms as if they are intended to have substantive, separate content. This tripartite division, which is inefficient by design, is built into our constitutional system to safeguard individual liberty by assuring that powers to legislate, execute, and adjudicate the laws do not all fall into a single set of (potentially) oppressive hands. In many separation-of-powers cases, whether the challenged institutional arrangement has honored that principle turns on the categorization or characterization of the powers at stake.

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Since the end of World War II, some of the United States Supreme Court’s most important constitutional law cases have focused on the appropriate relationships between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus, some might say obsession, with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation-of-powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

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The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that a President can so misuse a power that has been given to the office that the exercise of the power is an act of malfeasance, criminality, or both. Those who argue against the possibility of obstruction tend to rely on the President’s executive power. The debate is too large to fully resolve in this brief essay. Instead, this essay sketches the contours of the debate and briefly considers which questions surrounding the debate are particularly difficult to resolve and which are not.

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It has become increasingly common in recent years to scan the news and find that a state or group of states has sued the federal government. During the eight years of the Obama Administration, states led mostly by Republican attorneys general challenged federal action on matters ranging from health care to immigration to the environment to overtime pay. And during just the first year of the Trump Administration, states led by Democratic attorneys general have brought suits in many of those same areas and others, including federal student loan relief and regulation of the internet.

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