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Category Archives: Executive Power

Suing the President for Executive Overreach

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Monday, June 30, 2014 at 10:48 AM

President Obama has exercised executive power aggressively – as did his predecessor, albeit in different ways.  I don’t have time to parse and compare the differences, but in a nutshell (and simplifying a lot), the Obama administration has asserted enormous discretion under the “take care” clause to not enforce certain federal statutes, while President Bush . . .
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The US Intervention in Iraq Involves More than the 300: Armed Drones Above, Armed Contractors Below?

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Friday, June 27, 2014 at 9:43 PM

I’m surprised this hasn’t generated more attention: First, an article in the New York Times yesterday mentioned, right at the very end, the possibility that in addition to the 300 special operators headed back to Iraq there might also be more than a 1000 armed contractors accompanying them to pull security detail: Two Iraqi advisers . . .
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Republic of Argentina v. NML Capital: Discovery and the Foreign Sovereign Immunities Act

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Monday, June 16, 2014 at 10:28 PM

The Supreme Court held today in Republic of Argentina v. NML Capital that the Foreign Sovereign Immunities Act does not limit the scope of discovery available against a foreign sovereign in a post-judgment execution action.   This case is one of many actions brought against Argentina by bondholders who did not accept debt restructuring offers, as . . .
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The Relatively Weak Article II Basis for Bombing Iraq and Syria (and, Remember the President’s August 31, 2013 Speech?)

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Saturday, June 14, 2014 at 9:12 AM

I explained yesterday why I believe the administration has a straightforward argument for relying on the 2002 Iraq AUMF if it chooses to use force against ISIS in Iraq.  (Bobby and Wells disagree, and they may be right, but I note that such purposivist arguments to limit the text of the operative authorization have not . . .
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The Unreality of “Ending the War”

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Friday, June 13, 2014 at 10:32 AM

The march of ISIS across Iraq (and in Syria), and the Obama administration’s scramble to react to it, and the new round of drone strikes in Pakistan, and continuing and growing Islamist terrorist threats from North Africa to Yemen to Afghanistan and many places in between, all got me thinking about President Obama’s NDU speech . . .
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Vice-President Cheney’s Funny Criticism of President Obama for Not Complying with the GTMO Notice Requirement

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Wednesday, June 4, 2014 at 4:46 PM

I laughed when I heard former Vice-President Cheney on the Laura Ingraham show (approximately the 8:15-9:10 mark) criticizing President Obama for not notifying Congress under Section 1035 of the 2014 NDAA about the Bergdahl swap.  Ingraham complained about the failure of members of Congress to stand up to “the flouting of American law,” including the “failure . . .
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If President Washington Had An Office of Legal Counsel

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Tuesday, June 3, 2014 at 2:16 PM

Over at Point of Order, Michael Stern has an amusing and informative reflection on how President Washington might have responded to a House inquiry into a military defeat in the Northwest Territories, had he had an Office of Legal Counsel intent on frustrating Congressional review.  It begins: Re: Assertion of executive privilege in response to congressional . . .
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The Administration’s New (and Unconvincing) Reading of the Notice Requirement for GTMO transfers

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Tuesday, June 3, 2014 at 11:04 AM

The Obama Administration has backed away from its suggestions over the weekend that it failed to comply with the notice requirement in Section 1035 of the 2014 NDAA on constitutional grounds.  It is now claiming, as Marty Lederman notes, that it complied with the statute because it determined “that the notification requirement should be construed not to . . .
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One or Two Other Statutes the President Likely Disregarded in The Bergdahl Deal [UPDATED]

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Monday, June 2, 2014 at 7:45 PM

Earlier today I explained why the President almost certainly disregarded Section 1035 of the 2014 NDAA when he swapped the GTMO detainees for Bergdahl.  The President probably disregarded another statute as well, Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act, which provides: None of the funds appropriated or otherwise made available in this Act may . . .
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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds. Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the . . .
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Chief Justice Roberts: De-Chevronizing U.S. Foreign Relations Law

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Friday, May 16, 2014 at 8:35 AM

Eric Posner and Cass Sunstein argue in an article from 2007 that U.S. foreign relations law should be “Chevronized,” meaning that courts should defer to the executive branch in interpreting ambiguous treaties and statutes when international comity concerns are implicated. Curt Bradley had already argued in a 2000 article that Chevron deference should apply in . . .
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Chief Justice Roberts – [Not yet] The Most important Author of Foreign Relations Opinions in the History of the Supreme Court?

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Monday, May 12, 2014 at 10:47 AM

It seems likely that Chief Justice Roberts will author the much-anticipated opinion in Bond v. United States. This comes as no surprise. The Chief Justice has assigned much opinion-writing in close and/or important foreign relations cases to himself, perhaps consistent with how Chief Justices generally use their assignment power.   In foreign relations cases, this trend . . .
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On the Connections Between the AUMF and Section 702

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Tuesday, April 8, 2014 at 1:30 PM

I was asked to give testimony today before a House Foreign Affairs subcommittee on two topics that may seem largely unconnected: the vitality and adequacy of the AUMF for the conflict the United States is currently fighting and the NSA surveillance programs that have, of late, dominated news headlines. Rather than simply posting my testimony, I . . .
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A Summary of Friday’s Decision in al-Aulaqi v. Panetta

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Monday, April 7, 2014 at 1:19 PM

As Ben mentioned on Friday, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia dismissed a Bivens suit brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan—three U.S. citizens killed in U.S. drone strikes in 2011—seeking to hold various federal officials personally liable for their roles in . . .
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Uganda and the WPR Clock

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Monday, March 24, 2014 at 7:19 PM

Should the War Powers Resolution “clock” be running in Uganda? I think the answer is yes, contrary to what appears to be the administration’s position, but I also think that Congress has adequately expressed itself in favor of the issue, thus mooting the point. I’m prompted to write about this now because the administration has . . .
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CRS Report on Whether Congress Can Compel Disclosure of FISA Opinions

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Tuesday, March 4, 2014 at 2:45 PM

Over at Secrecy News, the estimable Steve Aftergood writes: Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes. The CRS report—entitled “Disclosure of FISA Court Opinions: Select Legal Issues”—has little to do with FISA Court opinions in . . .
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What is the Domestic Legal Basis for Planned Cyberattacks in Syria?

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Tuesday, February 25, 2014 at 8:12 AM

David Sanger reports that the Pentagon and the NSA planned a sophisticated cyberattack aimed at “the Syrian military and President Bashar al-Assad’s command structure” that “would essentially turn the lights out for Assad.” He also reports that President Obama declined to go forward with the attacks then or since because of uncertainty about the proper role of offensive . . .
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A Guide to the Coming Onslaught of Presidential Administration

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Sunday, January 26, 2014 at 6:26 AM

Scott Wilson has a long piece in the Washington Post about how “the White House is reorganizing itself to support a more executive-focused presidency” after concluding that it cannot get much done with Congress and should not let the President be defined by his lack of success in the first branch of government.  As a . . .
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Is the AUMF Next?

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Friday, January 17, 2014 at 7:34 AM

Hmmmm. Here’s a very interesting few paragraphs from the Wall Street Journal: The president’s speech, to be delivered at the Justice Department, caps a process that was similar to the one he undertook on other controversial, post-Sept. 11 issues, such as the use of armed drones and closing the detention center in Guantanamo Bay, Cuba. . . .
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Revealing the Deployment to Somalia: Drawing the Sting Before a Snowden Document Goes Public?

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Friday, January 10, 2014 at 6:48 PM

Did the government reveal the presence of US military advisors in Somalia in order to beat the Guardian or some other Snowden outlet to the punch? Earlier today, Jack posted about the likelihood that the metes and bounds of JSOC’s shadow conflict with al Qaeda (and perhaps others) will come into public light involuntarily at . . .
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