Samantar and Executive Power

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar illustrates, these latter acts of executive lawmaking raise special concerns about separation of powers and politically motivated decision-making. They counsel in favor of judicial caution in accepting such acts and, more generally, in favor of a more cautious approach to the creation of federal common law, which invites such acts.