The group agrees that Congress should reform the ECA in time for the 2024 election, and offers both core reform principles and specific proposals for statutory revision in an effort to contribute to a constitutionally sound bipartisan consensus in Congress.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
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The limited and informal system in place at the time of Snepp metastasized into a massive system restraining the speech of millions.
The U.S. government’s prepublication review process is a mammoth system of prior restraint that impacts the speech of millions. What's its legal foundation?
Here is the Winter 2020 Supplement for Bradley, Deeks, & Goldsmith, Foreign Relations Law: Cases and Materials (7th ed. 2020). These materials cover, among other things, the Supreme Court’s decision in Nestle v. Doe, which disallowed on extraterritoriality grounds a suit under the Alien Tort Statute against domestic corporations; the Court’s interpretation of the FSIA’s property takings exception in Federal Republic of Germany v. Philipp; the Court’s disallowance of a damages suit against a U.S. official for a cross-border shooting in Hernandez v.
It is important to U.S. democracy and President Biden’s legacy that his administration actively and openly support some of the central reforms now on the table.
There is clear bipartisan support for National Emergencies Act reform with an IEEPA exclusion.
A bill before the House could give Congress what it needs in its conflicts with the executive branch while acknowledging executive branch prerogatives and broader constitutional traditions.