On a Theory of the Executive Branch: Tension and Legality—Author's Response.

Both Rose-Ackerman and Winder dedicate large parts of their comments to the law of the United States; in the third part of this comment, I move to their analysis of the rise of a particular doctrine in recent U.S. cases, and discuss a similar doctrine in Israel. As a comment on Rose-Ackerman's normative view on the dangers of active judicial review, the final part of this response is dedicated to a short presentation of my normative argument on the role of the judiciary in curbing excessive/abusive executive action. My book offers a model of the nature of the executive branch of government and the law that authorizes it, discussed through examples of two common-law legal systems. * * * Focusing on the United States, both Rose-Ackerman and Winder discuss the relatively recent adoption by the U.S. Supreme Court of the "major questions doctrine", which has served as support for some intervention in agency far-reaching policies in the absence of a detailed statutory framework. [Extracted from the article]