On Tuesday, October 25, Cass Sunstein gave a talk in the Chicago's Best Ideas Series entitled "Beyond Marbury: The President's Power To Say What the Law Is." For those who have seen Cass discussing the judiciary a lot lately, you'll enjoy his foray into the executive branch. Audio of the event is available here. For instructions on listening to podcasts, click here. For more explanation of the content of the talk, see the blurb below the fold.
The blurb we used to advertise the talk is as follows. "Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But as a matter of actual practice, judgments about "what the law is" are often made by the President, not the judiciary. Professor Sunstein argues that the President is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. New evidence about judicial votes, introduced here for the first time, shows that when federal judges disagree with the President about the interpretation of federal law, the judges' own predilection are often a motivating factor. Justice Scalia, for example, is far less likely to defer to liberal decisions than Justice Breyer is; and Republican-appointed judges show far more conservative voting patterns, in reviewing the decisions of the President, than Democratic appointees do. This evidence supports the President's power to interpret the law, because the meaning of statutory law should not depend on whether Democratic appointees or Republican appointees decide the relevant cases." Enjoy.