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Constitutional Avoidance In The Executive Branch, Trevor W. Morrison Oct 2006

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …


Constitutional Avoidance In The Executive Branch, Trevor W. Morrison Oct 2006

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme …


The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris Jan 2006

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

Articles

In post-9/11 America, preventing the next terrorist attack ranks as law enforcement's top priority. This is as true for local police departments as it is for the FBI. This has led many advocates of stronger enforcement of U.S. immigration law to recast their efforts as anti-terrorism campaigns. As part of this endeavor, these advocates have called for local police to become involved in enforcing immigration law, and their allies in both the executive and legislative branches of the federal government have taken a number of actions designed to force local police to do this. Surprisingly, local law enforcement has for …


Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt Jan 2006

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …


Defending Human Rights In The "War" Against Terror, Douglass Cassel Jan 2006

Defending Human Rights In The "War" Against Terror, Douglass Cassel

Journal Articles

Safeguarding human rights in our "war" against terrorism is both the right and the smart thing to do. It is right because human rights embody our fundamental values as Americans and as Christians. Our Constitution stands for freedom; our Creator teaches us to respect the God-given dignity of each human soul. Christians are called to cherish human dignity, not only of innocents, and not only of captives in war whose status as combatant or civilian may be uncertain, but also of cardinal sinners, the terrorists themselves. Christ Jesus teaches us to hate the sin, but somehow to bring ourselves to …