War powers Zeisberg, Mariah
2013., 20130721, 2013, 2013-07-21
eBook
Armed interventions in Libya, Haiti, Iraq, Vietnam, and Korea challenged the US president and Congress with a core question of constitutional interpretation: does the president, or Congress, have ...constitutional authority to take the country to war?War Powersargues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times.
Mariah Zeisberg shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. Zeisberg argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and she demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal,War Powersreinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.
Choosing your battles Feaver, Peter D; Gelpi, Christopher
2011., 20111030, 2011, 2003, 20040101
eBook
America's debate over whether and how to invade Iraq clustered into civilian versus military camps. Top military officials appeared reluctant to use force, the most hawkish voices in government were ...civilians who had not served in uniform, and everyone was worried that the American public would not tolerate casualties in war. This book shows that this civilian-military argument--which has characterized earlier debates over Bosnia, Somalia, and Kosovo--is typical, not exceptional. Indeed, the underlying pattern has shaped U.S. foreign policy at least since 1816. The new afterword by Peter Feaver and Christopher Gelpi traces these themes through the first two years of the current Iraq war, showing how civil-military debates and concerns about sensitivity to casualties continue to shape American foreign policy in profound ways.
War Powers Crandall, Russell
Survival (London),
08/2019, Volume:
61, Issue:
4
Journal Article
Peer reviewed
In Presidents of War, Michael Beschloss builds a convincing case that the US president's evolved war-making powers vastly exceed what the American Founders envisioned.
Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? ...Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy—just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far.             Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief.
The origins of presidential claims to extraconstitutional powers during national crises are contentious points of debate among constitutional and legal scholars. The Constitution is silent on the ...matter, yet from Abraham Lincoln’s suspension of habeas corpus during the Civil War to George W. Bush’s creation of the “enemy combatants” label, a number of presidents have invoked emergency executive power in defense of actions not specifically endorsed in the Constitution or granted by Congress.
Taking up the debate, Clement Fatovic digs into the intellectual history of the nation’s founding to argue that the originators of liberal constitutional theory explicitly endorsed the use of extraordinary, extralegal measures to deal with genuine national emergencies. He traces the evolution of thought on the matter through the writings of John Locke, David Hume, William Blackstone, and the founding fathers, finding in them stated support for what Locke termed “prerogative,” tempered by a carefully construed concept of public-oriented virtues. Fatovic maintains that the founders believed that moral character and republican decency would restrain the president from abusing this grant of enhanced authority and ensure that it remained temporary.
This engaging, carefully considered survey of the conceptions of executive power in constitutional thought explains how liberalism's founders attempted to reconcile the principles of constitutional government with the fact that some circumstances would demand that an executive take normally proscribed actions. Scholars of liberalism, the American founding, and the American presidency will find Fatovic's reasoned arguments against the conventional wisdom enlightening.
ABSTRACT
COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and ...claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.
In the words of Justice Kagan, the Supreme Court's state "sovereign immunity decisions have not followed a straight line." The Court's first foray into state sovereign immunity was the 1793 case ...'Chisholm v Georgia', in which the Court held that under the new Constitution, states did not enjoy immunity from suits by citizens of other states in federal court. After this decision was rapidly and explicitly superseded by the Eleventh Amendment, however, the Court shifted to a markedly more immunity-friendly approach. In the 1890 case 'Hans v. Louisiana', the Court looked beyond the Eleventh Amendment - the plain text of which only addresses the diverse party configuration exemplified by Chisholm - to hold that state sovereign immunity also bars federal question suits by nondiverse plaintiffs. Continuing this line of cases, in the 1996 case 'Seminole Tribe of Florida v Florida', the Court took 'Hans' one step further and held that Congress could not abrogate state sovereign immunity in federal court. And shortly thereafter, in 'Alden v Maine', "the Court extended the nonabrogation rule of 'Seminole Tribe' to state courts."
Israel's military court system, a centerpiece of Israel's apparatus of control in the West Bank and Gaza since 1967, has prosecuted hundreds of thousands of Palestinians. This authoritative book ...provides a rare look at an institution that lies both figuratively and literally at the center of the Israeli-Palestinian conflict. Lisa Hajjar has conducted in-depth interviews with dozens of Israelis and Palestinians--including judges, prosecutors, defense lawyers, defendants, and translators--about their experiences and practices to explain how this system functions, and how its functioning has affected the conflict. Her lucid, richly detailed, and theoretically sophisticated study highlights the array of problems and debates that characterize Israel's military courts as it asks how the law is deployed to protect and further the interests of the Israeli state and how it has been used to articulate and defend the rights of Palestinians living under occupation.
This article argues that Machiavelli’s chapters on the Decemvirate ( D 1.35, 1.40-45) advance an internal critique of the juridical discourse of sovereignty. I first contextualize these chapters in ...relation to several of Machiavelli’s potential sources, including Livy’s Ab urbe condita, Dionysius of Halicarnassus’s Roman Antiquities, and the antiquarian writings of Andrea Fiocchi and Giulio Pomponio Leto. I then analyze Machiavelli’s claim that the decemvirs held “absolute authority” ( autorità assoluta)—an authority that was unconstrained by either laws or countervailing magistrates. I proceed to argue that Machiavelli’s account of the decemvirs’ election contains a web of allusions to the lex regia, the “royal law” by which the Roman people were thought to have conveyed their sovereign power to an emperor. By modeling the decemvirs’ election on the lex regia, Machiavelli reveals the political limitations of the doctrine of popular sovereignty; moreover, he illustrates that even free and fair elections can easily give rise to tyranny.
Courts at War Burnep, Gregory
2021, 2021-07-01
eBook
On June 28, 2004, the US Supreme Court broke with a long-standing tradition of deference to the executive in wartime national security cases and became an important actor in an armed conflict. By ...declining to rubber-stamp the executive branch's actions, the judiciary would henceforth play a major role in shaping national security policies in the war on terror. After the September 11, 2001, terrorist attacks, lawyers, lawsuits, and court decisions have repeatedly altered the landscape in the policy areas of detention and military commissions. In Courts at War Gregory Burnep explores how, after 9/11, lawyers and judges became deeply involved in an armed conflict, with important consequences for presidential authority, the separation of powers, and the treatment of individuals suspected of posing a threat to the United States. Courts at War goes beyond the posta€"9/11 armed conflict. It analyzes the changes in the position of courts vis-a-vis the other branches of government (courts in conflict with the executive, the legislature, or both)--even courts in conflict with other courts. The consequences included increased checks on presidential authority and greater levels of due process for suspected belligerents held in US custody. But Burnep also shows that there are unintended consequences that accompany these developments.Burnep innovatively applies an interbranch perspective to persuasively argue that litigation and judicial involvement have important implications for changing patterns of policy development in a wide range of national security policy areas, including surveillance, interrogation, targeted killings, and President Trump's travel ban.
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