The separation and expansion of powers between Congress and the president

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This is the fourth and final part in a series for SCOTUSblog recounting two decades of constitutional change through the five editions of our casebook, the first published in 2008 and the latest to be published this December.

The late 1990s and early 2000s ushered in the Rehnquist federalism revolution, which appeared to place limits on Congress’ powers and expand those of the states. Then came Sept. 11, 2001, and the global war on terror, which seemed poised to expand the president’s powers. Yet, by 2008, Congress’ powers seemed without meaningful limits and the president’s efforts to expand his own powers had failed. And the separation of powers remained, well, separate. Nevertheless, the next two decades would vastly enlarge the president’s powers as Congress’ authority over the executive branch would be greatly diminished.

Late-breaking changes for the legislative power

Most of the chapter on legislative powers has remained the same since our textbook’s first edition was published in 2008. The Rehnquist court’s federalism revolution hit a roadblock three years earlier. Gonzales v. Raich, which Barnett argued, halted the progress made by United States v. Lopez and United States v. Morrison. Those cases found limits on Congress’ powers to regulate guns in school zones and domestic violence through the commerce clause. But Raich upheld Congress’ powers to regulate locally grown marijuana. The second edition from 2013 ushered in NFIB v. Sebelius. This case held that the Affordable Care Act’s individual mandate exceeds Congress’ powers under the commerce and necessary and proper clauses, but the penalty enforcing the mandate could be saved as a constitutional tax.

No further changes were made in the following editions. Indeed, it seemed to both of us that the justices were unwilling to look more closely at the scope of federal enumerated powers. But this year’s edition introduces two unexpected enumerated powers cases. Landor v. Louisiana Department of Public Safety and Corrections clarified the relationship between the spending power and the necessary and proper clause. As a general matter, Congress can only make state officials subject to suits for money damages if the law complies with the necessary and proper clause. Landor ruled that the Religious Land Use and Institutionalized Persons Act does not provide a private cause of action for monetary damages against state officials who did not consent to suit, as such a law is not a “proper” exercise of federal power. We also included Justice Clarence Thomas’s concurrence in United States v. Hemani, which proposed tightening the so-called “jurisdictional hook” analysis. He would require a closer fit between interstate commerce and a regulated activity.

The future looks promising for a reconsideration of enumerated powers.

The contracting and expanding executive power

In March 2008, when the first edition of our casebook was published, the Supreme Court was primarily occupied by President George W. Bush’s global war on terror. The first edition of the casebook included Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. These cases rejected early challenges to the detention of suspected terrorists at Guantanamo Bay. In June 2008, the court would conclude the trilogy with Boumediene v. Bush, which held that the writ of habeas corpus runs to that prison facility.

But that case would be a fleeting flash, as the global war on terror faded from relevance – at least jurisprudentially. Moreover, most first-year law students were born after Sept. 11, 2001, and have no living memory of the events that gave rise to the conflict in Afghanistan. What seemed so critical in the decade after 9/11 has waned significantly in prominence before the court.

The realignment of the separation of powers

Perhaps the most significant revisions across five editions of the casebook came in the context of the separation of powers. Labeling these cases is tricky. Cases not only move in and out of the canon but also shift in how they are perceived. Many cases started out under the label of separation of powers – as the court enforced the balance of authority between the branches – but now might be considered executive power cases.

Only three separation-of-powers cases have survived all five editions. First, United States v. Nixon required the president to comply with a subpoena for the Watergate tapes. Second, Morrison v. Olson rejected a challenge to the independent counsel statute. And third, Clinton v. Jones held that a sitting president is subject to a civil suit for conduct that arose before his term began. We pondered at some length whether to retain Morrison, as it has largely been supplanted by Trump v. Slaughter. This 2026 decision formally overruled 1935’s Humphrey’s Executor v. United States and allowed the president to remove members of certain independent agencies.

Three Burger court staples were dropped. Dames & Moore v. Regan upheld the president’s suspension of claims arising from the Iran hostage crisis. Nixon v. Fitzgerald ruled that former President Richard Nixon was immune from suit for certain actions taken while in office. INS v. Chadha rejected the so-called “one house” veto, or the ability of either chamber of Congress to prevent an action by the executive branch. In the 1980s, these cases were landmark decisions. Over time, however, their relevance faded. Still, as reflected in Justice Neil Gorsuch’s concurrence in Learning Resources v. Trump, the 2026 tariffs case, Chadha’s effect has been magnified as the court has ceded more power to the president over executive branch agencies, even as those delegations were originally enacted with legislative vetoes.

Three decisions from the early Roberts court quickly entered and left the chat. Trump v. Slaughter replaced Free Enterprise Fund v. PCAOB and Seila Law v. CFPB. These cases, which rejected attempts to limit the president’s removal powers, simply lost relevance. NLRB v. Noel Canning was an important case about the original meaning of the recess appointments clause, but it has become largely obsolete as the past three presidents have used other means to make short-term appointments.

President Donald Trump has been the most consequential president for the Supreme Court’s separation-of-powers jurisprudence since Franklin D. Roosevelt. Five cases bearing his name now appear in the separation-of-powers chapter. Trump v. Vance, which concerned the president’s tax returns, was added before the fourth edition went to press. The fifth edition now provides a Trump quartet. Trump v. United States expanded the scope of presidential immunity from the Nixon era. Trump v. Slaughter, as noted, at last overruled Humphrey’s Executor, as Morrison v. Olson remains in a zone of twilight. Trump v. Cook reaffirmed the Federal Reserve’s independence. And Learning Resources, Inc. v. Trump invalidated the president’s tariffs. These cases, Slaughter in particular, will likely trigger an entire generation of new cases concerning the separation of powers. Who knows what the sixth edition will bring?

For easy reference, this table illustrates which cases were added and dropped across the five editions of our casebook. A checkmark indicates continued coverage.

Conclusion

Up to the fourth edition of our casebook in 2022, constitutional law followed a somewhat predictable arc. To be sure, there were shifts to the left and to the right, but the doctrine could be explained by a coherent narrative: the New Deal settlement on federal power was untouchable; the court would offer only modest protections for federalism; the administrative state was beyond reproach; attempts to single out unpopular groups would be halted; “benign” racial classifications were permitted; and church and state were strictly separated. Now, each aspect of this narrative has been reconceived. The five years since that edition appeared have brought the most changes to constitutional law since the Warren court.

We began this series by observing that lawyers tend to internalize the constitutional law that existed when they attended law school. The same is true of law professors. Virtually all law professors today came of age in a time of stasis. They could safely assume that the trajectory of the Warren court would continue indefinitely. But the jurisprudence of the Burger and Rehnquist courts was primed for a reversal, just as the Warren court reversed so many precedents from before. Ultimately, the Roberts court continues to chip away at precedents from the 1970s and 1980s, even if the precedents from the 1960s and before remain.

Many of these professors have struggled to cope with sudden changes in the doctrine. Some have voiced their despair of teaching constitutional law at all. Unsurprisingly, their students also struggle to cope with these developments. This trend is regrettable. Our role as casebook editors, and constitutional law professors, is to guide students through the entire corpus of constitutional law, from the framing to the present day, without any nostalgia for, or bias against, times gone by.