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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. …
Who's So Afraid Of The Eleventh Amendment, John C. Yoo, Jesse Choper
Who's So Afraid Of The Eleventh Amendment, John C. Yoo, Jesse Choper
John C Yoo
This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a …
Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe
Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe
John C Yoo
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close …