This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. Review of those determinations is commonplace with regard to government actors subject to the Administrative Procedure Act. But because the Administrative Procedure Act does not apply to the President, courts have resorted to old common law doctrines barring review of the determinations the President makes to invoke statutory authority. While these doctrines had a justification when judicial review of the President's actions occurred in individual damages actions against officials who implemented the President's orders, they no longer do and should be abandoned. To better describe and defend suc...
Introduction - I. Green Light: The Obama Administration’s Decision to Kill al-Awlaki - A. Framing the Issue - 1. Al-Awlaki-The Facts - 2. The Doctrinal Dilemma Posed by Targeting al-Awlaki - B. Relevant Statutes & Treaties - 1. The Foreign-murder Statute - 2. Authorization for Use of Military Force (AUMF) - 3. International Law-The Geneva Conventions - C. Recent Developments-Al-Bihani v. Obama - II. Yellow Light: Is Killing al-Awlaki Prohibited by the Foreign-murder Statute? - A. Are International Law Norms Automatically a Part of U.S. Domestic Law? - 1. Pre-Medellin Treaty Status in U.S. Domestic Law - 2. Post-Medellin Treaty Status in U.S. Domestic Law - 3. The Medellin Paradigm and the International Laws of War - B. Circumventing Non-self-execution-Has Congress Incorporated the...
... Means: The Original Understanding of War Powers." (All page references in this section are to his ... power to initiate war, subject to no judicial checks and to only two legislative constraints: im...
§ 20.1. Separation of Powers Checks and Balances. § 20.1.1 Having Some Constitutional Government Structure in Place and Operating. § 20.1.1.1 Ensuring the Continuity of Government. § 20.1.1.2 The 1781 Articles of Confederation and Their Replacement by the 1789 Constitution. § 20.1.1.3 Amending the United States Constitution. § 20.1.2 Issues in the Election of Members of the Federal Government. § 20.1.2.1 Presidential Election. § 20.1.2.2 Congressional Elections. § 20.1.3 Impeachment Power of Congress. § 20.1.4 Immunities from Suit . § 20.1.4.1 Congressional Immunities: The Arrest and Speech or Debate Clauses. § 20.1.4.2 Executive Immunities. A. The President. B. Immunity for Lower Federal Officials. § 20.1.4.3 Judicial Immunity and Congressional Interference with the Courts. § 20.1.4.4 ...
...After earlier judicial rulings and extensive pretrial discovery, only thr... was not entitled to claim absolute Presidential immunity. Petitioner took a collateral appeal of t... tradition of the separation of powers and supported by the Nation's history. Because of ...
...PRESIDENTIAL PROCLAMATIONS AND JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT A. J...
...Federalism and the Separation of Powers B. Nationalization, Globalization, and the Constit... war is divided between Congress and the President but that the power to make treaties is shared betw... creation of an independent executive and judicial branch and the elimination of any state veto over ...
The congressional investigation into the forced resignations of several U.S. attorneys and the subsequent civil lawsuit by Congress against the president has heightened interest in the doctrine of separation of powers. When the involvement of high-ranking presidential aides became apparent, the White House responded not only by claiming executive privilege, but also by asserting that the aides were immune from compulsory process and were not required to comply with congressional subpoenas. The declaration represents an attempt to expand the notion of executive privilege from qualified to absolute. Such an expansion is not consistent with either historical practice or the prevailing judicial understanding of executive privilege and the separation of powers.
... of the Constitution commands that "[t]he judicial Power of the United States, shall be vested in one... Under "the basicconcept of separation of powers . . . that flow[s] from the Opinion of the Court s... the Judiciary thepower to override a Presidential veto." United States v.Nixon, 418 U. S. 683, 704 ...
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