Law Commons^™

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

D. A. Jeremy Telman

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Our Very Privileged Executive: Why The Judiciary Can (And Should) Fix The State Secrets Privilege, D. A. Jeremy Telman

D. A. Jeremy Telman

This paper was first presented at the Temple Law Review Symposium on Executive Power.

In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege.

After reviewing the doctrinal origins of the Privilege, the Paper explores three types …