ISIS and War Powers

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.  

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James Madison: Constitution’s Original Meaning Comes From the People

NOTE: In this letter to Thomas Ritchie on September 15, 1821, James Madison explains how to find the original meaning of the words in the Constitution. That is, through the understanding of those who gave it legal force in their respective state conventions. As a guide in expounding and applying the provisions of the Constitution,…

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Notes on the Commerce Clause: Madison at the 1787 Convention

CONVENTION OF 1787. Farrand, Max, ed. The Records of the Federal Convention of 1787.

The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of the U. S. and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishg. all apprehensions of a Countervailing policy on the part of the U. States.

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The Meaning of “Natural Born”: What if Blackstone Was Wrong?

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. 

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Can the House Sue the President (More Seriously this Time)?

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.

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NLRB v. Noel Canning and Originalism

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…

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The President Does Not Have the Constitutional Power to Order Air Strikes in Iraq

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…

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