Constitutional Law | Open Access Articles | Digital Commons Network™

The Runaway Presidential Power Over Diplomacy, Jean Galbraith Jan 2022

The Runaway Presidential Power Over Diplomacy, Jean Galbraith

All Faculty Scholarship

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …

Go to article

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Go to article

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith Jan 2014

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

All Faculty Scholarship

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied …

Go to article

Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii Jan 2008

Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii

All Faculty Scholarship

Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.

Go to article

Procedure, Politics And Power: The Role Of Congress, Stephen B. Burbank Jan 2004