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Category Archives: Executive Power

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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President Obama Is Right

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Thursday, October 23, 2014 at 5:18 PM

President Obama is right. He was right when he said, as a presidential candidate in 2007, that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And he was right that “military action is most . . .
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Some Implications of President Obama’s Plans to Sidestep Congress on Iranian Sanctions

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Tuesday, October 21, 2014 at 9:28 AM

David Sanger recently reported that the Executive branch thinks it can suspend “the vast majority” of congressional sanctions unilaterally if it reaches a deal with Iran to forestall that nation’s nuclear weapons program.  “President Obama will do everything in his power to avoid letting Congress vote on” the matter, Sanger tells us.  “We wouldn’t seek . . .
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Obama’s Surprising War Powers Legacy

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Wednesday, October 15, 2014 at 8:56 AM

We have an essay in The New Republic titled Obama, Not Bush, Is the Master of Unilateral War.  It argues that President Obama, ironically in light of his own lofty rhetoric about lodging war decisions with “the people’s representatives” in Congress, has through his practices created new precedents that push outward the boundaries of unilateral . . .
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Signing Statements, the Commander in Chief Power, and Guantanamo Closure

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Friday, October 10, 2014 at 4:00 PM

According to the Wall Street Journal,  the President’s people are “drafting options” to bring about Guantanamo’s closure, an objective that would require the White House to get around a statutory restriction on transferring GTMO detainees to the United States.  Or not: Vice’s Jason Leopold reports that NSC Spokeswoman Caitlin Hayden today said the Administration does not know what “‘new press . . .
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The Administration Has Violated the War Powers Resolution Unless It is Right About the Applicability of the AUMFs to the Islamic State

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Wednesday, October 8, 2014 at 7:50 AM

On Monday, Senator Cruz maintained that the War Powers Resolution (WPR) clock had expired because 60 days had passed since the first air strikes against the Islamic State, which the President notified Congress about in a letter to Congress on August 8.  “Given that 60 days has expired,” the Senator argued, “the president should come . . .
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Confusing the Issues in al Bahlul

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Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between . . .
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Why Article III Matters: A Reply to Peter Margulies on al Bahlul

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Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without . . .
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Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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Speaking the Law: Chapters 4 and 5

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Wednesday, September 24, 2014 at 7:41 AM

The Hoover Institution has released Chapter 4 and Chapter 5 of our serialized book: Speaking the Law: The Obama Administration’s Addresses on National Security Law. Here are the Introduction and Chapter 1, Chapter 2,  and Chapter 3. Chapter 4 looks at the Obama administration’s speeches on national security—and the framework they lay out—in relation to other branches of government . . .
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House Amendment to Arm Syrian Rebels

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Tuesday, September 16, 2014 at 12:18 PM

The House Rules Committee has released an amendment to the Continuing Resolution (CR) that would authorize the Department of Defense to begin arming and training moderate Syrian rebels as identified by the Obama Administration; however, the measure provides no new funding for the initiative. The Hill has more on the proposal, which you can read . . .
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ISIL as al Qaeda: Three Reactions

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Thursday, September 11, 2014 at 1:52 AM

Like Bobby, Wells, and Ben, I, too, was surprised to discover that the Obama Administration’s legal theory (for the moment) appears to be that the Islamic State of Iraq and the Levant (ISIL) can be targeted under the 2001 AUMF despite its very public split from al Qaeda. That said, I think all three of my friends miss the animating premise of the . . .
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A White House Trial Balloon Trying Out the 2002 Iraq AUMF?

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Tuesday, September 9, 2014 at 10:59 PM

According to this story in the Post, an unidentified administration official–maybe the President, maybe not–has raised the possibility that the plans for a ramped-up campaign against IS will not need fresh congressional authorization because…wait for it…the 2002 Iraq AUMF remains on the books: The president “thinks he has the legal authority he needs” to increase . . .
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Four of The Would-be ISIS AUMFs

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Tuesday, September 9, 2014 at 6:32 PM

While Congressional leadership may be hesitant to take up a vote authorizing the president to use military force in Iraq and/or Syria against ISIS in the coming weeks, we’ve seen several different authorizations put into play—with different requirements, and by different members of Congress. Below, I note four of the would-be ISIS AUMFs that are kicking around . . .
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More on Iraq’s Implications for the Continuing Relevance of the 2001 AUMF

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Monday, September 8, 2014 at 3:55 PM

Yesterday I posed the question whether the 2001 AUMF has any continuing significance, legally-speaking, for counterterrorism activities (especially drone strikes) in Pakistan, Yemen, etc., given that the President is “confident that [he] has the authorization that [he] need[s]” to do what has been done in Iraq and also to support the expanded role that he . . .
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