Trump's Muslim Ban and its Constitutional Limits

Harvard International Law Journal, 2016

The use of international law to understand domestic authority has a long pedigree. It is also the subject of heated debate, which focuses predominantly on the extent to which international law can or should serve as a limit on political actors, in particular the President, and the extent to which it can be invoked to expand our understanding of domestic individual rights. Yet there is another significant dynamic at work in this interplay between international and domestic law. This is the invocation of international law not as a constraining force on government actors, but as an enabling force within the domestic system. This Article explores the U.S. Executive’s invocation of international law to support expansive interpretations of statutory or constitutional grants of authority; to narrow domestic prohibitions on executive action and narrow protections for individuals; and to justify the displacement of the ordinary operation of domestic legal rules, at times exchanging the domes...

Maryland Law Review, 2013

A dynamic institutional relationship exists between the United States executive branch and the United States Supreme Court. This Article examines how the Court affects constitutional and political development by taking a leading role in interpreting presidential decisionmaking in the area of foreign affairs since 1936. Examining key cases and controversies in foreign policymaking, primarily in the twentieth and twenty-first centuries, this Article highlights the patterns of intercurrences and the mutual construction process that take place at the juncture of legal and political time. In so doing, it is more than evident that the Court not only sanctions the claims made by executives of unilateral decisionmaking, but also takes a leading role in (re)defining the very scope and breadth of executive foreign policymaking.

MA Thesis, 2016

On November 13, 2001, United States President George W. Bush signed a Military Order (66 Fed. Reg. 57,833) authorizing ad hoc military tribunals at the United States naval base in Guantánamo Bay, Cuba, to detain, interrogate, and try those providing assistance for the terrorist attacks on September 11, 2001. The detainees were designated “illegal enemy combatants” and did not have the right to a writ of habeas corpus, which would have given them access to United States civilian courts in wartime. As a precedent, the Bush administration cited Ex parte Quirin (1942) in which the United States Supreme Court upheld the constitutionality of military tribunals created by United States President F. D. Roosevelt for the trial of German saboteurs. Over the period of both G. W. Bush presidential terms, the United States Supreme Court ruled on five high-profile military tribunal-related cases: Hamdi (2004), Padilla (2004), Rasul (2004), Hamdan (2006), and Boumediene (2008). In these cases, the United States Supreme Court made a decision whether the executive branch remained within its constitutional limits and whether it operated within the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions, of which the U.S is a signatory. In Hamdan (2006) the United States Supreme Court concluded that i) the President as Commander in Chief does not have inherent power to create military tribunals outside the existing statutory authority and ii) the Geneva Conventions, which are included in the Uniform Code of Military Justice, are applicable to military tribunals. In light of the Hamdan decision, President Bush appealed to Congress to adopt legislation that would address the court’s objections. In October 2006, the United States Congress passed the Military Commissions Act, authorizing military tribunals that were by this act exempt from following the Uniform Code of Military Justice. Subsequently, in Boumediene (2008) the United States Supreme Court ruled that Section 7 of the Military Commissions Act of 2006 was unconstitutional, since it suspended the habeas right for the detainees at Guantanamo, who under the United States Constitution had a right to petition federal courts for habeas corpus challenges. An imperial presidency, which is observed when the constitutional balance of power is upset in favor of presidential power, is not built into the structure of the United States government. Nonetheless, just as the presidencies of John Adams, Abraham Lincoln, Franklin D. Roosevelt, Harry Truman, and Richard Nixon were imperial, indeed so also was that of George W. Bush. With its rulings, the United States Supreme Court has on several occasions pointed out to United States Presidents that executive power is limited, even in wartime. Along with the rule of law, the notions of separation of powers and checks and balances are prerequisites for a strong government that protects human rights and limits the danger of tyranny. As James Madison expressed in Federalist Paper No. 51: "Ambition must be made to counteract ambition."

2006

Presidential Leadership and the Trump Presidency, 2019

Every administration braces itself for inevitable legal challenges to its highprofile policies. Those challenges are especially acute when policymaking emanates from the executive branch. History is filled with examples of legal actions contesting (a) executive orders (EOs) from presidents or (b) directives or memoranda issued by departments and agencies that implement the president's policy priorities. Some notable examples of challenged executive orders include Franklin D. Roosevelt's executive order during World War II imposing relocation and internment of Japanese-Americans (EO 9066), Truman's 1952 executive order that commanded the Secretary of Commerce to seize private steel mills during the Korean War, and George W. Bush's November 2001 military order authorizing the establishment of military commissions at Guantanamo Bay to try terrorist suspects. Of the three, only Roosevelt's order survived legal challenge

2014

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.

Presidential Studies Quarterly, 2007

In recent times, some scholars have discussed a new way in which to view presidential power, one that considers the president's ability to effect policy change unilaterally without the consent of Congress or the courts. The limits of presidential power can still be defined essentially by the ability and willingness of Congress and the courts to constrain it. However, the use of national security directives poses particular challenges to the abilities of both Congress and the courts to constrain effectively the president's power to act unilaterally in setting public policy. Drawing upon continuing research, this article offers some preliminary observations and insights into the role of national security directives and how they have contributed to shaping U.S. national security policy.

2017

Zivotofsky v. Kerry (2015) is the most recent challenge to presidential prerogatives, and while the Supreme Court addresses the erroneous mistake espoused by Justice Sutherland in 1936, the Court ultimately fails to harness the unbridled powers of the Executive in the area of foreign affairs. The Court establishes a new standard for presidential ascendancy, which leaves the imperial president largely intact. This Article shows that a dynamic and fluid institutional relationship exists between the executive branch and the Court; the Court affects constitutional and political development by taking a leading role in interpreting presidential decision-making in the area of foreign affairs since 1936. Examining key cases and controversies in foreign policymaking, this Article exposes patterns of regime building by the Court, highlights feedback loops, and examines the long-term effect on presidential politics. Presidents are not bound by their position in the regime. In the area of forei...

The Compass, 2019

Presidential authority in the realm of national security policy has increased since George Washington’s administration. The most noticeable expansion of America’s position in global hegemon followed the allied victory in World War II. Accompanying the rapid increase in the Executive Branch’s authority has been deference from the traditional constraints on the President’s power, namely Congress and public opinion. This paper seeks to answer the question of whether the Judicial Branch, specifically the Supreme Court, has acted overall to constrain or enable the expansion of presidential war powers. This question will be examined through a qualitative analysis of existing academic literature and Supreme Court opinions. Introduction Since the end of World War II, the Executive Branch of the United States government has expanded its scope of power. The rise of American global hegemony was further solidified with the fall of the Soviet Union in 1991. Presidents since George Washington hav...

Yale Law Journal, 2009

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues-including issues with significant domestic ramifications-by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements.