The Experts below are selected from a list of 324 Experts worldwide ranked by ideXlab platform

Michael Stokes Paulsen - One of the best experts on this subject based on the ideXlab platform.

  • Drone on: The Commander in Chief Power to Target and Kill Americans
    Harvard Journal of Law and Public Policy, 2015
    Co-Authors: Michael Stokes Paulsen
    Abstract:

    The President of the United States, in his capacity as Commander in Chief in time of legally authorized war, possesses the Constitutional Power to target and kill specific individuals that he determines to be active enemy combatants engaged in lawful or unlawful hostilities against the United States. In targeting and killings such combatants, the President may use any and all appropriate weapons technologies available to him -- including drone technology.Such enemy combatants might sometimes be, unfortunately, United States citizens. The Constitutional Power of the President to target and kill such citizen enemy combatants is no different from the Power to target and kill enemy combatants generally. This article examines this core proposition in the context of the paradigmatic case of the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda operational commander, by drone attack in Yemen in 2011.

  • the Constitutional Power to interpret international law
    Yale Law Journal, 2009
    Co-Authors: Michael Stokes Paulsen
    Abstract:

    What is the force of international law as a matter of U.S. law 'Who determines that force' This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution's commands or assignments of Power, international law is, precisely to that extent, unConstitutional. Further, the force of treaties (and executive agreements) to which the U.S. is a party is always subject to the Constitutional Powers of Congress and the President to supersede or override them as a matter of U.S. domestic law. It follows from the Constitution's allocation of Power exclusively to U.S. Constitutional actors that the Power to interpret, apply, enforce - or disregard - international law, for the United States, is a U.S. Constitutional Power not properly subject to external direction and control. The Power 'to say what the law is,' including the Power to determine the content and force of international law for the United States, is a Power distributed and shared among the three branches of the U.S. government. It is not a Power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution's allocation of Powers in matters of war and foreign affairs has important implications for many contemporary issues the United States's actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.

Tamir Moustafa - One of the best experts on this subject based on the ideXlab platform.

  • Law in the Egyptian Revolt
    Middle East Law and Governance, 2011
    Co-Authors: Tamir Moustafa
    Abstract:

    Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defi ned by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. This article examines the struggle for Constitutional Power in three periods – before, during, and after the Egyptian revolt of 2011.

  • the struggle for Constitutional Power law politics and economic development in egypt
    2007
    Co-Authors: Tamir Moustafa
    Abstract:

    1. Introduction: law versus the state 2. The politics of domination: law and resistance in authoritarian states 3. The establishment of the Supreme Constitutional Court 4. The emergence of Constitutional Power (1979-90) 5. The rapid expansion of Constitutional Power (1991-7) 6. Executive retrenchment and an uncertain future (1998-2005) 7. Law, development, and democracy: a critical appraisal Appendix A. SCC justices and commissioners Appendix B. Constitution of the Arab Republic of Egypt Appendix C. Law 49/1979 governing the Supreme Constitutional Court Appendix D. Figures on Supreme Constitutional Court rulings Bibliography.

  • the struggle for Constitutional Power law 48 of 1979 governing the operations of the supreme Constitutional court of egypt
    2007
    Co-Authors: Tamir Moustafa
    Abstract:

    In the name of the people, The President of the Republic, The following law having been adopted by the People's Assembly is promulgated. Article 1 : The provisions of the attached law shall apply to the Supreme Constitutional Court. Article 2 : All cases and applications pending before the Supreme Court, and falling within the jurisdiction of the Supreme Constitutional Court in accordance with the attached law, shall be referred to this court immediately following its formation and without judicial fees. In addition, all requests suspend the execution of judgments rendered by arbitration organs that were binding before the Supreme Court will be referred to the Supreme Constitutional Court without judicial fees. These requests will be ruled upon in accordance with the Law No 81 of 1969 promulgating the Supreme Court's law, and Law No 66 of 1970 promulgating the law concerning procedures and fees enforceable before it. Article 3 : The provisions of Articles 15 and 16 of the attached law shall apply to cases and applications related to recusation and disputes addressed against members of the Supreme Court as well as applications related to their salaries, pensions and related matters. The Supreme Constitutional Court shall exclusively decide upon all of these cases and applications. Article 4 : The Supreme Constitutional Court shall be represented in the Supreme Council of Judicial Bodies by the Chief Justice. In his absence, the most senior member will carry out this duty. Article 5 : Without prejudice to the provisions of paragraphs 3 and 4 of Article 5 of the attached Law, the first formation of the Supreme Constitutional Court, will be established by a presidential decree which includes the appointment of the Chief Justice and the members of the court, on condition that these appointees meet the requirements specified in the attached law, and upon consultation of the Supreme Council of Judicial bodies regarding the appointment of members of the court. Those members shall take the oath mentioned in Article 6 of the attached law, which shall be sworn in before the President of the Republic. […]

Charles B. Blankart - One of the best experts on this subject based on the ideXlab platform.

  • The Process of Government Centralization: A Constitutional View
    Constitutional Political Economy, 2000
    Co-Authors: Charles B. Blankart
    Abstract:

    Government centralization is not a law of nature. It can be explained on the one hand by the endeavor of locally elected representatives of national assemblies to form tax and expenditure cartels, on the other hand by the Constitutional Power of the federal government to take over state tax legislation and to act as a cartel enforcer. A case study provides empirical evidence and moreover shows that such cartels generate a higher tax level and perform badly in interregional equalization of per capita income. The relevance of Constitutional Power for explaining centralization seems to be confirmed in various countries.

Robert J. Spitzer - One of the best experts on this subject based on the ideXlab platform.

  • Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes
    SSRN Electronic Journal, 2012
    Co-Authors: Robert J. Spitzer
    Abstract:

    Barack Obama campaigned for the presidency in part on a platform of promising to reverse the Constitutional excesses of the second Bush presidency. Yet critics of the former law school professor – from both left and right – have been quick to accuse Obama of abandoning that promise by accepting, embracing, and even advancing expansive executive Power claims. This paper will examine these criticisms by comparing Bush and Obama Constitutional Power claims and actions in the areas of war Powers, signing statements, and the veto Power.

  • The Law: The “Protective Return” Pocket Veto: Presidential Aggrandizement of Constitutional Power
    Presidential Studies Quarterly, 2001
    Co-Authors: Robert J. Spitzer
    Abstract:

    In recent decades, students of the presidency have debated with no little fervor the extent to which the institution has become more imperial, especially and most importantly in the realm of Constitutional authority. Many have argued that presidents have accumulated Power beyond Constitutional bounds in such areas as war Powers (Adler 1988; Fisher 1995), secrecy (Johnson 1989), executive privilege (Berger 1974; Rozell 1994), budgeting and impoundment (Fisher 1975), and the use of signing statements (Garber and Wimmer 1987). While disputes over presidential use or abuse of Constitutionally claimed Powers are well known in areas such as war Powers, other such executive aggrandizements are little known. For example, in a recent issue of this journal, Cooper (2001) described the relatively unknown yet burgeoning practice of recent presidents' using memoranda in tandem with executive orders to mask actual policy initiatives. Cooper discussed several instances in which the first George H. W. Bush and Clinton administrations issued executive orders stating one goal or objective, then issued executive memoranda to initiate a very different, more controversial, and often covert, action. Cooper's important article is fascinating in the way it reveals the complexity of White House subterfuge that "is deliberately attempting to hide its intentions" (p. 138). The Constitutional and policy consequences of this Constitutional aggrandizement are considerable, a fact that takes on greater importance when compared with the extent to which this effort has proceeded nearly unimpeded and unnoticed. The purpose of this article is to shed light on another area in which presidential aggrandizement of a Constitutionally based Power has steadily progressed below scholarly and political radar screens: so-called "protective return" pocket vetoes. This article will first discuss the basis for the pocket veto and its relationship with the regular veto. It then discusses pertinent case law, recent presidential experiments with the pocket veto, and the Constitutional problems with that experimentation pertaining to protective return vetoes, a term and process so little known that this may be the first time the term has appeared in a published article. (1) The analysis concludes with an assessment of the merits and consequences of this idea. The Regular and Pocket Veto Powers The Constitution provides the president with two kinds of vetoes in Article I, section 7. The regular or return (sometimes also called qualified) veto is exercised when the president takes two steps: withholds executive signature and returns the bill "with his Objections to that House in which it shall have originated." The bill is then subject to override by Congress. The pocket veto, by contrast, not only observes different and more circumscribed procedures but has a different and more emphatic effect, because it is absolute--that is, the exercise of a pocket veto kills the legislation in question because there is no bill return and therefore no possibility of override. Congress' only alternatives to dealing with a pocket veto are to either stay in session for at least ten days after the passage of a bill that may be subject to pocket veto, so that the bill can be returned to Congress, or start from scratch and repass the bill when Congress reconvenes. As the Constitution says, If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. The first part of this sentence states that if the president takes no action on bills presented by Congress, they become law automatically after ten days. The necessity of this provision is evident, as presidents could halt bills by simply withholding their signature. …

John F Manning - One of the best experts on this subject based on the ideXlab platform.

  • the supreme court 2013 term foreword the means of Constitutional Power
    2014
    Co-Authors: John F Manning
    Abstract:

    This Foreword argues that the Constitutional text favors an approach to both statutory and structural Constitutional law that defers, within broad bounds, to congressional authority to determine how to implement Constitutional Power. In several important contexts, the Constitution grants implementation Powers to Congress. These grants include the Necessary and Proper Clause, which provides that Congress shall have the Power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The upshot of that explicit assignment is not hard to describe. Unless it violates some other provision of the Constitution, when Congress specifies a reasonable means of carrying out its own Power or the Powers of the coordinate branches, the other branches must respect that decision. This Foreword argues that the Rehnquist and Roberts Courts have given effect to this allocation of implementation Power in statutory cases, but not in structural Constitutional cases. The Court’s “new textualism” in statutory interpretation builds on a post-New Deal tradition that treated the Necessary and Proper Clause as a broad source of congressional authority to enact odd, and even silly, laws, as long as they satisfied a very minimal threshold of rationality. By enforcing the statutory text, warts and all, textualism enables Congress to use its words reliably to prescribe — and make stick — rough, awkward, and often ill-fitting solutions to complex and contested social problems. In contrast, the Court's “new structuralism” in Constitutional law transforms the Necessary and Proper Clause into a delegation of Power to the courts to define abstract structural policies. In a novel reading of the clause, both the Rehnquist and Roberts Courts have held that a law is not “proper” if it cannot satisfy the Court's own conception of freestanding principles of federalism and separation of Powers. Contrary to the Constitution’s express allocation of implementation Power, this approach gives the Court rather than Congress primary responsibility for determining what means are “necessary and proper.”

  • The Supreme Court, 2013 Term — Foreword: The Means of Constitutional Power
    SSRN Electronic Journal, 2014
    Co-Authors: John F Manning
    Abstract:

    This Foreword argues that the Constitutional text favors an approach to both statutory and structural Constitutional law that defers, within broad bounds, to congressional authority to determine how to implement Constitutional Power. In several important contexts, the Constitution grants implementation Powers to Congress. These grants include the Necessary and Proper Clause, which provides that Congress shall have the Power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The upshot of that explicit assignment is not hard to describe. Unless it violates some other provision of the Constitution, when Congress specifies a reasonable means of carrying out its own Power or the Powers of the coordinate branches, the other branches must respect that decision. This Foreword argues that the Rehnquist and Roberts Courts have given effect to this allocation of implementation Power in statutory cases, but not in structural Constitutional cases. The Court’s “new textualism” in statutory interpretation builds on a post-New Deal tradition that treated the Necessary and Proper Clause as a broad source of congressional authority to enact odd, and even silly, laws, as long as they satisfied a very minimal threshold of rationality. By enforcing the statutory text, warts and all, textualism enables Congress to use its words reliably to prescribe — and make stick — rough, awkward, and often ill-fitting solutions to complex and contested social problems. In contrast, the Court's “new structuralism” in Constitutional law transforms the Necessary and Proper Clause into a delegation of Power to the courts to define abstract structural policies. In a novel reading of the clause, both the Rehnquist and Roberts Courts have held that a law is not “proper” if it cannot satisfy the Court's own conception of freestanding principles of federalism and separation of Powers. Contrary to the Constitution’s express allocation of implementation Power, this approach gives the Court rather than Congress primary responsibility for determining what means are “necessary and proper.”

  • The Means of Constitutional Power
    Harvard Law Review, 2014
    Co-Authors: John F Manning
    Abstract:

    II. THE NEW STRUCTURALISM AND INDEPENDENT JUDGMENT In the past quarter century, the Court's structural Constitutional decisions have proceeded on premises contrary to the deferential approach it takes in its statutory interpretation cases. The Rehnquist and Roberts Courts have asserted broad judicial Power to determine the appropriateness of Congress's chosen means to implement federal Power. It is not that the Court has upended the particular doctrines of Constitutional deference that it enforced during the post-New Deal period. With tweaks here or there, the Court basically applies a forgiving approach to congressional judgments about the means-ends fit; (182) a narrow view of substantive due process in cases of ordinary legislation; (183) and a hands-off posture toward delegation. (184) However, at the same time, the Court has also broken fresh ground by, for example, erecting new buffer zones around state sovereignty, prohibiting affirmative federal mandates on individual behavior, and identifying a heretofore unknown limitation on congressional Power to establish independent agencies. What holds these seemingly disparate cases together--and what qualifies them as a "new structuralism"--is a shared methodology. The Court has shown itself willing time and again to derive specific limitations on congressional Power from relatively high-level inferences about federalism and, to a lesser extent, separation of Powers. On the rare occasions when the post-New Deal Court invalidated an act of Congress on separation of Powers grounds, it did so for (what the Court saw as) fairly specific transgressions of the Constitutional text: the creation of congressional Power to remove executive officers outside the impeachment process; (185) the authorization of legislative lawmaking without bicameralism and presentment; (186) the assignment of core Article III business to a non-Article III court; (187) or the adoption of an appointments procedure unsanctioned by the Appointments Clause. (188) In many of the Rehnquist-Roberts era decisions invalidating structural legislation, the Court's judgment is not ultimately tied to the understood meaning of any particular Constitutional text. Nor does any specific Constitutional tradition or line of judicial precedent typically speak to the question at issue. Instead, what underlies all of these cases is a "free-form" version of what Professor Charles Black called the "method of inference from the structures and relationships created by the constitution in all its parts or in some principal part." (189) This free-form structural inference first shifts the Constitution's level of generality upward by distilling from diverse clauses an abstract shared value--such as property, privacy, federalism, nationalism, or countless others--and then applies that value to resolve issues that sit outside the particular clauses that limit and define the value. (190) When abstracted from particular Constitutional provisions or specific historical practices, such broad values leave judges with a great deal of discretion. (191) This phenomenon is especially evident in the Court's freestanding federalism and separation of Powers cases because the purposes underlying those doctrines are diverse, unranked, and often self-contradictory. (192) Hence, such doctrines afford reasonable people plenty of room to strike the balance in different ways between federalism and nationalism or separation and interdependence. In those types of cases, today's Court applies independent judgment to determine--in truth, to create--the meaning of federalism and separation of Powers doctrine. In the process, it does not defer to Congress's contrary judgments about how to carry federal Power into execution. This approach contrasts sharply with the philosophy of not only the post-New Deal Court's Constitutional cases, but also the current Court's own statutory cases. When the Court invokes the Necessary and Proper Clause in contemporary structural cases, it is not typically as a font of legislative authority as it was in the post-New Deal Constitutional cases (and as it still is in some of the Court's decisions). …