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Full-Text Articles in Law
Congressional Administration Of Foreign Affairs, Rebecca Ingber
Congressional Administration Of Foreign Affairs, Rebecca Ingber
Faculty Scholarship
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.
And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …
Co-Belligerency, Rebecca Ingber
Co-Belligerency, Rebecca Ingber
Faculty Scholarship
Executive branch officials rest the President’s authority in today’s war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 “Authorization for Use of Military Force” (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call “co-belligerency.” Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered …
The Obama War Powers Legacy And The Internal Forces That Entrench Executive Power, Rebecca Ingber
The Obama War Powers Legacy And The Internal Forces That Entrench Executive Power, Rebecca Ingber
Faculty Scholarship
In exploring the Obama war powers legacy, this essay examines the systemic forces inside the executive branch that influence modern presidential decision-making and, barring a total reimagining of the executive branch, will operate on administrations to come. These mechanisms and norms fall broadly within two categories: (1) features that favor continuity and hinder presidents from effecting change, including both novel assertions of executive power and attempts to dial back that power; and (2) features that incrementally aggrandize such power claims. Together, these two sets of forces operate as a one-way ratchet, slowly expanding and ultimately entrenching executive branch power.
Interpretation Catalysts And Executive Branch Legal Decisionmaking, Rebecca Ingber
Interpretation Catalysts And Executive Branch Legal Decisionmaking, Rebecca Ingber
Faculty Scholarship
Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise …
A Skeptical View Of A Skeptical View Of Presidential Term Limits, Jack M. Beermann
A Skeptical View Of A Skeptical View Of Presidential Term Limits, Jack M. Beermann
Faculty Scholarship
Dean Jeremy Paul is concerned that the presidency has been weakened and that the Twenty-Second Amendment’s limitation on presidential service is at least partly to blame. Dean Paul is clearly correct that once a President reaches the point beyond which re-election is not constitutionally possible, the President is effectively a lame duck. Dean Paul further points out that since 1951 when the amendment limiting Presidents to two terms went into effect, there have been several instances of very poor results in the President’s second term. He attributes the second term problems of some recent Presidents at least partly to term …
Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai
Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai
Faculty Scholarship
In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …