Saikrishna Prakash

  • James Monroe Distinguished Professor of Law
  • Albert Clark Tate, Jr., Professor of Law

Saikrishna Prakash’s scholarship focuses on separation of powers, particularly executive powers. He teaches Constitutional Law, Foreign Relations Law and Presidential Powers at the Law School.

Prakash’s most recent book, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” was published by Harvard Belknap Press in 2020. He also authored “Imperial from the Beginning: The Constitution of the Original Executive” (Yale University Press, 2015). The former book focuses on the modern presidency while the latter considers the presidency of the Founders.

Prakash has authored over 75 law review articles. Among them are “Of Synchronicity and Supreme Law” in the Harvard Law Review, “The Indefensible Duty to Defend” in the Columbia Law Review, and “50 States, 50 Attorneys General and 50 Approaches to the Duty to Defend” and “The Executive Power Over Foreign Affairs” in the Yale Law Journal.

Prakash has published op-eds in The New York Times, The Wall Street Journal and the Los Angeles Times. At the request of Democrats and Republicans, he has testified before Congress on matters of presidential removal, the Mueller Report and how Congress might better check the presidency. He is currently a Miller Center Senior Fellow. In 2015, he received the Roger Traynor award for faculty scholarship. In the same year, he received an honorable mention from the American Society of Legal Writers for his book “Imperial from the Beginning.” He has given named lectures at William & Mary Law School, Princeton University and Toledo Law School, and keynote addresses at several conferences.

Prakash majored in economics and political science at Stanford University. At Yale Law School, he served as senior editor of the Yale Law Journal and received the John M. Olin Fellowship in Law, Economics and Public Policy. He subsequently clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Clarence Thomas of the U.S. Supreme Court. After practicing in New York for two years, he served as a visiting professor at the University of Illinois College of Law and as an associate professor at Boston University School of Law. He then spent several years at the University of San Diego School of Law as the Herzog Research Professor of Law. Prakash has been a visiting professor at Northwestern University and the University of Chicago. He also has served as a James Madison Fellow at Princeton University and Visiting Research Fellow at the Hoover Institution of War & Peace at Stanford University.

Scholarship Profile: Originalism and the Separation of Powers (Virginia Journal 2013)

Education

  • J.D.
    Yale Law School
    1993
  • B.A.
    Stanford University
    1990

Books

Articles & Book Chapters

The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95 (with William Hall), 107 Virginia Law Review 119-187 (2021).
The Living Presidency: Always at a Crossroads, in Michael Nelson & Barbara A. Perry, eds., The Presidency: Facing Constitutional Crossroads, University of Virginia Press 7-27 (2021).
Against Constitution by Convention, 108 California Law Review 1975-1994 (2020).
Faithless Execution, 133 Harvard Law Review Forum 94-102 (2020).
Resolved, The Unitary Executive Is a Myth: Con, in Richard J. Ellis & Michael Nelson, eds., Debating the Presidency: Conflicting Perspectives on the American Executive, CQ Press 24-35 (5 ed. 2020).
The Age of the Winning Executive: The Case of Donald J. Trump, 134 Harvard Law Review Forum 141-166 (2020).
The Federalist Society Presents, Showcase Panel II: Why, or Why Not, Be an Originalist? (with Amy Coney Barrett et al.), 69 Catholic University Law Review 683-721 (2020).
Double Duty across the Magisterial Branches, 44 Journal of Supreme Court History 26-38 (2019).
Of Synchronicity and Supreme Law, 132 Harvard Law Review 1220-1259 (2019).
Text over Intent and the Demise of Legislative History (with Thomas W. Merrill, Michael S. Paulsen & Lawrence B. Solum), 43 University of Dayton Law Review 103-128 (2018).
Congress as Elephant, 104 Virginia Law Review 797-842 (2018).
Review of Barron, Waging War, (reviewing David J. Barron, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS) 112 American Journal of International Law 534-539 (2018).
The Past, Present, and Future of Presidential Power, 14 University of St. Thomas Law Journal 627-649 (2018).
Executive Order, (reviewing Harold H. Bruff, Untrodden Ground: How Presidents Interpret the Constitution) New Rambler (2016).
A Fool for the Original Constitution, 130 Harvard Law Review Forum 24-37 (2016).
Congress and the Reconstruction of Foreign Affairs Federalism (with Ryan Baasch), 115 Michigan Law Review 47-107 (2016).
Military Force and Violence, but Neither War nor Hostilities, 64 Drake Law Review 995-1026 (2016).
People ≠ Legislature (with John Yoo), 39 Harvard Journal of Law & Public Policy 341-370 (2016).
Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend (with Neal Devins), 124 Yale Law Journal 2100-2187 (2015).
The Boundless Treaty Power within a Bounded Constitution, 90 Notre Dame Law Review 1499-1516 (2015).
The Sweeping Domestic War Powers of Congress, 113 Michigan Law Review 1337-1396 (2015).
Zivotofsky and the Separation of Powers, 2015 Supreme Court Review 1-39 (2015).
A Note on the Separation of Powers, in David F. Forte & Matthew Spalding, eds., The Heritage Guide to the Constitution, Heritage Foundation 231-236 (2 ed. 2014).
Executive Vesting Clause, in David F. Forte & Matthew Spalding, eds., The Heritage Guide to the Constitution, Heritage Foundation 237-239 (2 ed. 2014).
Resolved, The Unitary Executive is a Myth: Con, in Richard J. Ellis & Michael Nelson, eds., Debating the Presidency: Conflicting Perspectives on the American Executive, CQ Press 26-34 (2014).
Review of Howell et al., The Wartime President: Executive Influence and the Nationalizing Politics of Threat, (reviewing William G. Howell, Saul P. Jackman, & Jon C. Rogowski, The Wartime President: Executive Influence and the Nationalizing Politics of Threat) 101 Journal of American History 979-980 (2014).
Take Care Clause, in David F. Forte & Matthew Spalding, eds., The Heritage Guide to the Constitution, Heritage Foundation 288-291 (2 ed. 2014).
Guru Dakshina, 2013 University of Illinois Law Review 1787-1796 (2013).
Reverse Advisory Opinions (with Neal Devins), 80 University of Chicago Law Review 859-894 (2013).
The Imbecilic Executive, 99 Virginia Law Review 1361-1433 (2013).
The Statutory Nonenforcement Power, 91 Texas Law Review See Also 115-122 (2013).
The Goldilocks Executive (with Michael D. Ramsey), (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic) 90 Texas Law Review 973-1008 (2012).
The Indefensible Duty to Defend (with Neal Devins), 112 Columbia Law Review 507-577 (2012).
The Causes of Progressive Stagnation, 72 Ohio State Law Journal 1277-1280 (2011).
The Great Suspender’s Unconstitutional Suspension of the Great Writ, 3 Albany Government Law Review 575-614 (2010).
Fragmented Features of the Constitution's Unitary Executive, 45 Willamette Law Review 701-722 (2009).
The Story of Myers and its Wayward Successors: Going Postal on the Removal Power, in Christopher H. Schroeder & Curtis A. Bradley, eds., Presidential Power Stories, Foundation Press 165 (2009).
Why the Incompatibility Clause Applies to the Office of the President, 4 Duke Journal of Constitutional Law & Public Policy Sidebar 35-44 (2009).
A Taxonomy of Presidential Powers, 88 Boston University Law Review 327-340 (2008).
Exhuming the Seemingly Moribund Declaration of War, 77 George Washington Law Review 89-140 (2008).
Imperial and Imperiled: The Curious State of the Executive, 50 William & Mary Law Review 1021-1062 (2008).
Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering (with Larry Alexander), 50 William & Mary Law Review 1-62 (2008).
The Executive's Duty to Disregard Unconstitutional Laws, 96 Georgetown Law Journal 1613-1684 (2008).
The Misunderstood Relationship between Originalism and Popular Sovereignty, 31 Harvard Journal of Law & Public Policy 485-494 (2008).
The Separation and Overlap of War and Military Powers, 87 Texas Law Review 299-386 (2008).
A Two-Front War, 93 Cornell Law Review 197-220 (2007).
Delegation Really Running Riot (with Larry Alexander), 93 Virginia Law Review 1035-1080 (2007).
More Democracy, Less Constitution, 55 Drake Law Review 899-924 (2007).
Why the President Must Veto Unconstitutional Bills, 16 William & Mary Bill of Rights Journal 81-94 (2007).
(Mis)Understanding Good-Behavior Tenure (with Steven D. Smith), 116 Yale Law Journal 159-169 (2006).
How the Constitution Makes Subtraction Easy, 92 Virginia Law Review 1871-1878 (2006).
How to Remove a Federal Judge (with Steven D. Smith), 116 Yale Law Journal 72-138 (2006).
New Light on the Decision of 1789, 91 Cornell Law Review 1021-1078 (2006).
Regulating the Commander in Chief: Some Theories, 81 Indiana Law Journal 1319-1324 (2006).
Removal and Tenure in Office, 92 Virginia Law Review 1779-1852 (2006).
Removing Federal Judges Without Impeachment (with Steven D. Smith), 116 Yale Law Journal Pocket Part (2006).
The Constitutional Status of Customary International Law, 30 Harvard Journal of Law & Public Policy 65-72 (2006).
The Domestic War, 115 Yale Law Journal Pocket Part (2006).
Against Interpretive Supremacy (with John Yoo), 103 Michigan Law Review 1539-1566 (2005).
Executive Vesting Clause, in Matthew Spalding & David Forte, eds., The Heritage Guide to the Constitution , Heritage Foundation 179-182 (2005).
Foreign Affairs and the Jeffersonian Executive: A Defense (with Michael D. Ramsey), 89 Minnesota Law Review 1591-1687 (2005).
Regulating Presidential Powers, 91 Cornell Law Review 215-257 (2005).
Take Care Clause, in Matthew Spalding & David Forte, eds., The Heritage Guide to the Constitution , Heritage Foundation 22-224 (2005).
The Chief Prosecutor, 73 George Washington Law Review 521-597 (2005).
"Is That English You're Speaking?" Why Intention Free Interpretation Is an Impossibility (with Larry Alexander), 41 San Diego Law Review 967-996 (2004).
Against Tribal Fungibility, 89 Cornell Law Review 1069-1120 (2004).
Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation (with Larry Alexander), 20 Constitutional Commentary 97-110 (2004).
Questions for the Critics of Judicial Review (with John Yoo), 72 Georgetown Law Journal 354-380 (2004).
The Constitution as Suicide Pact, 79 Notre Dame Law Review 1299-1321 (2004).
Overcoming the Constitution, 91 Georgetown Law Journal 407-438 (2003).
Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated (with Larry Alexander), 70 University of Chicago Law Review 1297-1330 (2003).
The Essential Meaning of Executive Power, 2003 University of Illinois Law Review 701-820 (2003).
The Origins of Judicial Review (with John Yoo), 70 University of Chicago Law Review 887-982 (2003).
The Executive Power over Foreign Affairs (with Michael D. Ramsey), 111 Yale Law Journal 231-356 (2001).
The Puzzling Persistence of Process-Based Federalism Theories (with John Yoo), 79 Texas Law Review 1459-1524 (2001).
A Critical Comment on the Constitutionality of Excutive Privilege, 83 Minnesota Law Review 1143-1190 (1999).
America's Aristocracy, 109 Yale Law Journal 541-586 (1999).
Our Dysfunctional Insider Trading Regime, 99 Columbia Law Review 1491-1550 (1999).
A Comment on Congressional Enforcement, 32 Indiana Law Review 193-212 (1998).
Deviant Executive Lawmaking, 67 George Washington Law Review 1-50 (1998).
Unoriginalism's Law Without Meaning, 15 Constitutional Commentary 529-546 (1998).
The President's Power to Execute the Laws (with Steven G. Calabresi), 104 Yale Law Journal 541-666 (1994).
Field Office Federalism, 79 Virginia Law Review 1957-2038 (1993).

Reports & Datasets

Statement, The Bureau of Consumer Financial Protection’s Unconstitutional Design US Government Printing Office 68-80 ( US House of Representatives Committee on Financial Services, 2017, ).

Op-Eds, Blogs, Shorter Works

Trump Has Declared War on Inspectors General, Washington Post (May 22, 2020).
'Faithless' Electors Are Faithful to the Constitution, Wall Street Journal (May 13, 2020).
One Virtue of a Virtual Congress, The Hill (May 5, 2020).
A Pandemic Power of the Presidency, The Hill (April 24, 2020).
The Coming SCOTUS Battle Is a Chance to Curb Judicial Supremacy (with John Yoo), National Review (July 6, 2018).
Can the President Obstruct Justice? (with John Yoo), National Review (December 15, 2017).
Just Don’t Lose, Baby, Volokh Conspiracy (August 23, 2017).
The First (the Only?) Federal Self-Pardon, Washington Post (August 3, 2017).
Citizen Trump, the "Nothing Burger" and Impeachment, Volokh Conspiracy (July 5, 2017).
Déjà Vu, All Over Again, Volokh Conspiracy (June 29, 2017).
For Trump, Self-Pardon Would Equal Self-Immolation, Philadelphia Inquirer (June 27, 2017).
How to Stop Worrying and Learn to Love the Nuclear Option (with John Yoo), Wall Street Journal A17 (April 7, 2017).
President Trump’s ‘So-Called’ Judgment (with John Yoo), Wall Street Journal A10 (February 14, 2017).
Mr. President, Use a Litmus Test to Choose Your Supreme Court Nominee (with John Yoo), LA Times 11 (January 31, 2017).
The Constitutional Law of “You’re Fired” (with Aditya Bamzai), National Review (January 24, 2017).
Gorsuch Makes a Mark on the Court Section II: Trump and the Court (with John Yoo), 2017-2018 Supreme Court Preview 60-61 (2017).
President Trump’s Declaration of War Against Syria, 111 Proceedings of the American Society of International Law 119-121 (2017).
Another Sweeping Rebuke of Government Secrecy, Investor’s Business Daily (November 22, 2016).
Can a State's Attorney General Pick and Choose Which Laws to Defend? (with Neal Devins), LA Times A17 (April 18, 2016).
The Somewhat Independent FBI Director (with Aditya Bamzai), LA Times A15 (2016).
Limit Use of Presidential Perks? Yeah, Right, New York Times (September 9, 2012).

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