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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. …
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
John C Yoo
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role …