Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 2 of 2

Full-Text Articles in Law

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth Jan 2004

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …


Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman Jan 2004

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …