Understanding the current legal controversies over “emergencies” and the border wall requires recognizing how the Supreme Court’s 1983 decision in INS v. Chadha destroyed the scheme Congress had created for determining whether emergencies existed.
Professor Pildes is the Sudler Family Professor of Constitutional Law and Co-Faculty Director for the Program on Law and Security at NYU School of Law. His scholarship focuses on legal issues concerning the structure of democratic institutions and politics, separation of powers, administrative law, and national-security law. A clerk to Justice Thurgood Marshall at the United States Supreme Court, Professor Pildes has been named a member of the American Academy of Arts and Sciences, a Guggenheim Fellow, and a Carnegie Scholar.
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Instead of creating new legislation imposing for-cause removal restrictions, Congress should create a mechanism for judicial review of how existing regulations are applied to protect special counsels.
Codifying the Justice Department’s existing regulations on special counsel does not amount to a return to the old Independent Counsel Act.
The Constitution does not give the President the exclusive power to control all federal law-enforcement investigations—and to shut any of them down for any reason the President sees fit.
As I noted in an earlier post, the newly emerging uses of multi-lateral military force for humanitarian intervention -- such as to respond to states that gas their own citizens -- raise profound issues about the relationship between "the rule of (international) law" and morality/political judgment. Under existing international law, it is difficult to justify legally use of military force against Syria; there is no self-defense justification and no approval from the Security Council.
Kosovo, Syria: When it Comes to Military Force, What's the Proper Relationship Between Law and Political Judgment?
The potential use of military force in Syria and its past use in Kosovo -- despite the likely "illegality" under international law and the U.N. Charter -- raise important general questions about the modern, post-WWII attempt to establish "rule of law" constraints on the inter-state use of force. Jack and Ashley have noted the widespread view, then and now, that the Kosovo bombings were "technically" illegal under international law, but nonetheless right. Absent Security Council approval, the same might be true regarding Syria.
As is widely known, the greatest act of successful deception in modern military history is convincing the Germans -- at the decisive moment of WWII -- that the D-Day invasion would take place at Pas de Calais, rather than on the much longer, wider, gently sloping, and penetrable beaches of Normandy.