Recent events in Iraq seem to pose a challenge to a limited view of presidential war powers. Suppose, the argument runs, a fast moving threat to U.S. national security arises quickly, at a time when Congress is not meeting. Containing the threat depends on a fast response — but if the President must get Congress’ approval to act, action will come too late.Details
In thinking about the phrase “natural born Citizen” in the Constitution’s eligibility clause, I have assumed (1) that it follows from the English law phrase “natural born subject” and (2) that “natural born subject” at minimum meant anyone born within sovereign territory (apart from children of invaders and diplomats). The latter point seems clear from Blackstone, who says as much, quite clearly.Details
I’m all for using originalism to reach liberal results — I think that’s the best way to defend originalism from the charge that it’s no more than cover for a conservative agenda.
But Balkin seems to go to the opposite extreme, and find that (his version of) originalism always (or almost always) leads to liberal results.Details
I can accept, as an original matter, the general proposition that the “Case or Controversy” language means at minimum that everyone can’t sue everyone for everything. How modern standing law derives its particular intricacies from this basic proposition is a mystery to me. But that doesn’t matter in this case, which seems fundamentally about an abstract injury common to everyone.Details
First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday’s recess appointments decision, NLRB v. Noel Canning. Second, my quick takeaway is that the case is a win for originalism. True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism. But…Details
The Sixth Circuit hears oral argument today in U.S. v. Miller, the Amish beard-cutting case. Jonathan Adler has this extended discussion: How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime. As he explains:Details
The answer, in my view, depends on whether the U.S. can be “at war” with a non-state actor such as the Sunni rebel force in Iraq. Here’s my analysis: (1) The President has executive power and commander-in-chief power, and thus can direct the military and conduct foreign relations, so long as he does not do…Details