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Category Archives: Executive Power

al-Nashiri Argument Preview: The CMCR’s Appointments Clause Problem

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Tuesday, February 3, 2015 at 8:17 AM

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks . . .
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A Response to Bruce Schneier and a Cautious Defense of Energy in the Executive

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Friday, January 16, 2015 at 3:30 PM

Bruce Schneier has responded to my earlier exchange with Edward Snowden with a challenging question: Putting aside what the Constitution currently does or does permit, wouldn’t it be better if all surveillance decisions were subject to judicial review? Shouldn’t we prefer philosophically an executive bound to formal review mechanisms in all coercive activities—even, say, in overseas surveillance . . .
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What Americans Really Think About ISIS

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Friday, January 9, 2015 at 6:16 PM

This week, Brookings unveiled a new poll by Nonresident Senior Fellow Shibley Telhami that dives below the”approve/disapprove” numbers to offer a more sophisticated picture of how the American public views the campaign against the Islamic State and the broader conflict in Syria and Iraq. Among the findings, one of the most striking is the reasoning respondents select . . .
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Two Basic Problems With Abstention in Nashiri

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Tuesday, December 30, 2014 at 5:44 PM

Wells already flagged yesterday’s D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri’s impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he’s convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act. Interested (or, at least, hyper-attentive) readers may . . .
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The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

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Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear . . .
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A “Buffer Zone” Inside Syria, and Its Complications

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Friday, December 5, 2014 at 6:34 PM

The United States and Turkey seem to be having increasingly detailed discussions about establishing a no-fly zone (or “buffer zone”) inside the northern Syrian border adjacent to Turkey. The press reports that Turkey is conditioning the U.S. use of Turkey’s Incirlik air base for armed flights on the U.S. willingness to establish such a zone. The . . .
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What Does the Swiss Coat of Arms Have to do with the Immigration Imbroglio?

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Wednesday, November 26, 2014 at 2:36 PM

If you peruse the darker corners of the U.S. criminal code—as I used to do in my youthful efforts to educate myself in law without going to law school—you’ll eventually stumble across 18 U.S.C. § 708, which bizarrely makes it a federal crime to “willfully use[] . . . for any trade or commercial purpose, the coat of . . .
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Risking Money and Risking Lives: Disproportionate Congressional Oversight

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Tuesday, November 25, 2014 at 8:00 AM

The Government Performance Results Act (GPRA) requires the Executive Branch to conduct detailed strategic planning prior to spending money.  The laws that govern the President when he introduces the men and women of the United States (U.S.) Armed Forces into hostilities, specifically Article II of the Constitution, the War Powers Resolution, and the Authorizations for . . .
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On the Oddity of the Patriot Act Sunset Provisions

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Monday, November 24, 2014 at 10:00 AM

Last week, the New York Times‘s Charlie Savage had what seems to me a pretty big, if under-discussed, scoop—or perhaps we should say that he channelled to the public a pretty big scoop by former Senate Intelligence Committee chief counsel Michael Davidson. The news, which certainly caught me unawares, is that the Patriot Act sunset provision—stated . . .
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Analysis of Senator Paul’s Proposed Declaration of War (and Authorization of Force) Against the Islamic State

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Monday, November 24, 2014 at 8:15 AM

Senator Paul has proposed a declaration of war and authorization of force against the Islamic State.  A few reflections, drawn in part from an article I wrote a decade ago with Curtis Bradley: 1.     The United States has declared war in five armed conflicts in American history: The War of 1812, the Mexican-American . . .
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President Obama’s Immigration Plan: Rewriting the Law

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Sunday, November 23, 2014 at 4:15 PM

As a supporter of comprehensive immigration reform and director of Roger Williams Law School’s Immigration Clinic, I know the high stakes in the current debate about President Obama’s executive action. I also know the higher stakes, previously acknowledged by the President, in adherence to our constitutional order; see my recent paper supporting the President’s Deferred . . .
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The Immigration Imbroglio as (Pretty) Normal Separation of Powers

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Saturday, November 22, 2014 at 10:03 AM

It has been instructive during the last six years to watch President Obama and most Democrats evolve from Executive power critics to Executive power apologists, just as it has been instructive to watch many Republicans evolve from Executive power apologists (or quiet fence-sitters) to Executive power critics.  It has also been instructive to watch President . . .
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Executive Power and Immigration Reform

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Monday, November 17, 2014 at 11:33 PM

The current flap about President Obama’s plan to proceed without Congress on immigration matters isn’t really about national security law. But it is about the law of presidential power and thus of inherent interest to readers of this site. Over the past few weeks, I’ve been struck in reading the many news stories about the brewing . . .
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Ben’s Sweeping Endorsement of the Just Security AUMF Principles

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Tuesday, November 11, 2014 at 12:32 PM

In his post this morning, Ben identifies what he calls “flaws” with three of the six principles for a use-of-force authorization for ISIL that were introduced yesterday by a group of legal experts (that includes me). Although Ben has done us the courtesy of critiquing the Principles, it appears he didn’t actually read them all . . .
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The Zivotofsky Oral Argument Transcript

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Tuesday, November 4, 2014 at 10:19 AM

is here.

Two Quick Thoughts on Today’s Argument in Zivotofsky

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Monday, November 3, 2014 at 4:42 PM

Today I attended the hour-long oral argument in Zivotofsky v. Kerry.  I won’t rehearse the facts or procedural history, other than to remind readers of the basic question under discussion: the constitutionality of Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State, in the case of a U.S. citizen . . .
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Final Note on Zivotofsky

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Sunday, November 2, 2014 at 6:30 AM

A quick response to Marty Lederman’s latest post on Zivotosfsky.  I confess that I do not fully understand either Marty’s or the SG’s (pp. 46-48) argument about the relevance of Article I.  They both seem to want to argue that Congress is not exercising legitimate power in the Jerusalem Passport legislation, but – perhaps to . . .
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How the Supreme Court Should Resolve Zivotofsky

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Thursday, October 30, 2014 at 8:09 AM

Zivotofsky is an important case because it appears to require the Supreme Court to address the scope of the President’s exclusive foreign relations power vis a vis Congress.  This is a very hard question, rarely addressed by the Court, about which the relevant sources (text, original meaning, historical practice) are, in my view, unclear.  And . . .
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The Supreme Court Should Stay Far Away from the Vesting Clause in Zivitofsky

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Wednesday, October 29, 2014 at 11:19 AM

The strange little case of Zivotofsky v. Kerry casts power politics as petty paperwork. But it might be one of the most significant non-terrorism foreign affairs cases in a generation. In the broadest sense, the case is about whether the President can disregard a foreign affairs statute. Framed most narrowly, it’s about whether Menachem Zivotofsky’s . . .
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Oral Argument Preview: Zivotofsky v. Kerry

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Sunday, October 26, 2014 at 3:00 PM

On Monday, November 3, the Supreme Court will hear oral arguments in Zivotofsky v. Kerry, the long-awaited final act in a decade-plus-long saga surrounding the passport of an American boy born in Jerusalem. The issue before the Court this time around (the Court decided a preliminary issue in 2012) is whether a federal statute directing . . .
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