nationalsecuritylaw forthcoming scholarship

April 19, 2011

* forthcoming scholarship

Constitutional Alarmism (Reviewing Bruce Ackerman, the Decline and Fall of the American Republic (2010))

Harvard Law Review, Forthcoming

Trevor W. Morrison
Columbia University – Law School

This is a review essay of Bruce Ackerman’s new book, The Decline and Fall of the American Republic. The book argues that the modern presidency poses a new and dire threat to our constitutional traditions. One of its core claims is that legal interpretation in the executive branch — especially as practiced by offices like the White House Counsel’s Office and the Justice Department’s Office of Legal Counsel (OLC) — is hopelessly compromised and cannot possibly be relied upon to foster principled, good faith adherence to legal constraints. Executive branch lawyers, Ackerman contends, inevitably say yes to whatever the President wants to do, even if it means defending the legally indefensible.

This Review shows that Ackerman’s account of law and legal interpretation in the executive branch — "executive constitutionalism," in Ackerman’s terminology — is simply wrong. Although the recent experience of the "torture memos" shows that offices like OLC can sometimes go badly astray, as a general matter OLC has a long history of providing principled, independent legal analysis. There is a similarly long history of the White House and other executive components binding themselves to OLC’s opinions. These trends continue. (In particular, Ackerman’s claim that the White House Counsel’s Office has recently been usurping OLC’s role is inaccurate.) To be sure, neither OLC nor any other player in executive constitutionalism is perfect, and there is certainly room to improve. Among other things, better disclosure of executive branch legal interpretation could help encourage fidelity to the traditions of independence and professional integrity for which offices like OLC are known.

Ackerman, however, is insufficiently attentive to the institutional details of how executive constitutionalism actually works, which leads him to miss the important but subtle ways in which it entails real constraint. As a result, the book’s broadside attack on executive branch legal interpretation is an exercise in unwarranted alarmism. And given its mistakes of description, the book’s prescriptions for reform — including its call to replace OLC with a quasi-court he dubs the "Supreme Executive Tribunal" — are not only troubling on their own terms but entirely unwarranted.

"Executive Power and the Law of Nations in the Washington Administration"

University of Richmond Law Review, Forthcoming

ROBERT REINSTEIN, Temple University – James E. Beasley School of Law
Email: robert.reinstein

The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions:

First, the source of the Washington administration’s constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration’s public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria.

Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing any settled doctrine of international law but was making discretionary policy decisions. This paper shows that the critics erred in projecting onto the founding generation their own ideas of legal positivism as the foundation of international law, and in dismissing the extraordinary influence of Continental publicists such as Vattel, who were the administration’s principal authorities on the law of nations.

Second, this thesis has important implications regarding executive power and international law. Washington’s actions were based on the principle that the Executive has the duty to comply with the obligations of the law of nations. To the extent that international law remains part of national law, the actions of the Washington administration provide an important precedent for the duty of the Executive to obey the constraints of international law.

Third, this paper sheds light on the limits of originalism as a constitutional methodology. One of the profound changes that have occurred in the United States is that the founders’ way of thinking about law can be incompatible with our own. The foreign policy decisions of the Washington administration reflected B indeed, in the view of the administration, were compelled by B a natural law jurisprudence of the law of nations that was a product of its time. This has little relevance to the general scope of modern presidential power to determine and conduct the nation’s foreign affairs. Modern theories of expansive executive powers must find bases other than in the decisions of our first President.

Obama’s UN Authority

Lou Fisher

The Constitution Project

[From the introduction] President Obama has yet to explain to Congress and the American people how he received authority from the United Nations Security Council to initiate military operations against Libya. On March 21, he informed Congress that "at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council." An April 1 memo by the Office of Legal Counsel states that Security Council Resolution 1973 "imposed a no-fly zone and authorized the use of military force to protect civilians." Because Libya did not comply with the resolution, the OLC concluded that President Obama was justified in using military force against Libya to maintain "the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security."

"The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the ‘War on Terror,’ and Religious Freedom"

RICHARD SCHRAGGER, University of Virginia School of Law
Email: rcs4t

This Essay, written for a symposium commemorating the twentieth anniversary of Employment Division v. Smith, examines the politics of free exercise as it has changed since Smith was decided. It focuses on two historical developments that have and will continue to shape the doctrine of free exercise going forward. The first development is the gay and lesbian civil rights movement and its pursuit of marriage equality in the courts. The second development is the "war on terror" that followed the attacks of 9/11 and the nation’s subsequent cultural and political response to fundamentalist Islam. This Essay describes how these historical developments are putting doctrinal and legislative pressure on the post-Smith free exercise equilibrium. The Essay also speculates about the continuing political and legal viability of Smith in light of these pressures.

nationalsecuritylaw Call for papers for NSL/Con Law event in Milan (Deadline April 24); Video from habeas-in-times-of-crisis event at Oklahoma

April 19, 2011

1. Reminder: Call for Papers: “Secrecy, National Security, and the Vindication of Constitutional Law,” Conference at Bocconi University, Milan (Italy) December 1-2, 2011 (DEADLINE: APRIL 24TH!)

On behalf of the IACL Research Group on Constitutional Responses to Terrorism, we hereby invite proposals in the form of abstracts for papers to be delivered at an international conference on “Secrecy, National Security, and the Vindication of Constitutional Law” hosted by Bocconi University in Milan, Italy, on December 1-2, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. We are open to proposals that seek to bring comparative analysis to bear on how best to mediate these tensions. Issues that authors might want to address could include, for example:

– the challenge of secrecy to democratic lawmaking on counterterrorism policy;

– the use of “secrecy” privileges to block litigation challenging allegedly illegal government programs;

– the use of classified evidence against individuals or organizations to freeze their assets, designate them as terrorist, or justify other restraints on their liberty;

– the use of “anonymous” witnesses who testify without revealing their identity;

– the closure of criminal trials and other proceedings to the public;

– and the adoption of secret coercive programs without transparent legal justification, such as the US’s coercive interrogation practices or targeted killing program.

Scholars are invited to address in a comparative frame the ways that various constitutional systems have sought to balance the tension between accountability, transparency, and fairness on the one hand, and secrecy and security on the other.

The conference will last a day and a half and will also feature the participation of Lord Justice Stephen Sedley (Court of Appeal of England and Wales) as well as professors Daphne Barak-Erez (University of Tel Aviv), David Cole (Georgetown University), Kent Roach (University of Toronto), Martin Scheinin (European University Institute) and Arianna Vedaschi (Bocconi University). Abstract proposals for papers of max. 500 words should be emailed, along with the author’s cv, to federico.fabbrini by April 24, 2011. Once abstracts are accepted, papers will be due November 1, 2011 to permit exchange of drafts prior to the conference.


Prof. David Cole, Georgetown University, Research Group Chair

Prof. Arianna Vedaschi, Bocconi University, Host

Federico Fabbrini, European University Institute, Research Group Coordinator

2. Video from “Habeas Corpus: Law and Legitimacy in Times of Crisis” (Mar. 25, 2011) (University of Oklahoma, Institute for the American Constitutional Heritage)

[Click on the session title below to get the video]

Lee Kovarsky
Gordon Silverstein

Paul Halliday
Steve Vladeck
Justin Wert
Mark Graber

Judge Raymond Randolph
David Cole