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Making War, John C. Yoo, Robert Delahunty
Making War, John C. Yoo, Robert Delahunty
John C Yoo
We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the latest originalist argument that war cannot be started by the executive without congressional authorization. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure …
Hamdan V. Rumsfeld: The Functional Case For Foreign Affairs Deference To The Executive Branch, John C. Yoo, Julian Ku
Hamdan V. Rumsfeld: The Functional Case For Foreign Affairs Deference To The Executive Branch, John C. Yoo, Julian Ku
John C Yoo
The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference. In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. …