Symposium Article

It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism

Prof. Heidi Kitrosser
Vol. 88, Issue 7
Symposium Article appears in Issue 7
88 Texas L. Rev. 1401

Professor Kitrosser analyzes the constitutional argument of “presidential exclusivity.”  Exclusivists argue that the President has substantial discretion to override statutory limits that he believes interfere with his ability to protect national security.  These arguments are typically supported by references to historical examples of other presidents exercising such discretion.  Professor Kitrosser examines these arguments through the lens of evolving history.  Ultimately, she finds the arguments to be flawed because exclusivists improperly conflate the President’s structural capacities to override limits with a legal prerogative to do so.