The coronavirus could generate an enormous shift toward voting by mail in the 2020 general election—magnifying the risk of political chaos if the seeming “winner” on election night turns out to have lost a week or more later.
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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Three significant questions behind President Trump’s declaration of a national emergency to build a border wall have a single, surprising answer: Why did Congress in the National Emergencies Act (NEA) of 1976 delegate such broad and vague power to the president to declare national emergencies? Why wasn’t Congress more specific in defining the circumstances that constitute a national emergency? And why are the courts now going to have the final word in determining whether the president has properly invoked or abused the power the NEA gives him?
On Monday, the Senate Judiciary Committee convened hearings, entitled “Special Counsels and the Separation of Powers,” to listen to legal experts testify about the two pending Senate bills (Graham-Booker and Tillis-Coons, summarized here) that aim to further protect Special Counsels, including Robert Mueller, from improper termination by the president.
Some members of Congress are looking for ways to protect the integrity of the Mueller investigation by ensuring that Mueller won’t be removed from office unless a genuinely appropriate basis exists for doing so. Sens. Christopher Coons (D-Del.) and Thom Tillis (R-N.C.) have introduced legislation to provide for judicial review if Mueller is removed, and Sens.
Alan Dershowitz, in a series of recent op-eds, has taken to arguing in his characteristic take-no-prisoners style that the whole issue of whether President Trump might have obstructed justice is a red herring. Even if the President ordered James Comey to shut down the Flynn investigation and had a corrupt intent for doing so, this would still not amount to the crime of obstruction of justice.
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.