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From the category archives:

Separation of Powers

Why the Courts Must Presume that Economic Legislation is Constitutional

April 6, 2012

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess […]

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Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

April 6, 2012

The Attorney General's letter is here. More below.

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Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

April 5, 2012

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation […]

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Attorney General Eric Holder Identifies Factors for Targeting Enemy Combatants

March 6, 2012

In a speech yesterday at Northwestern University Law School Attorney General Eric Holder addressed  a number of legal issues associated with the war against al Qaeda and its allies.  Specifically, he identified the factors that the Executive Branch takes into account in targeting enemy combatants.

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2011-2012 Supreme Court Term: Oral Argument in MBZ v. Clinton

March 1, 2012

Like most of the cases this year, oral argument in this case featured a very active bench.  Justices vigorously questioned both attorneys; my impression is that they were much tougher on the attorney for the petitioner, and much less satisfied with his answers.  I think the President will win.  The question is whether he will […]

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2011-2012 Supreme Court Term: MBZ v. Clinton, No. 10-699 (Political Question, Separation of Powers)

February 29, 2012

In 2002 Menachem Binyamin Zivotofsky was born in Jerusalem to American parents.  His parents applied to the State Department for a passport for him and requested that it show his place of birth as âIsrael.â  The State Department instead listed his place of birth as "Jerusalem."  His parents brought this suit on his behalf requesting […]

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The Old Issue

September 14, 2011

Twice in legal argument Supreme Court Justice Robert Jackson invoked the phrase "leave to live by no man's leave, underneath the law."   Both occasions were watershed events in the legal history of our civilization.

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The United States and 30 Other Countries Recognize Rebels as Legitimate Government of Libya

July 15, 2011

One power that the President of the United States may exercise unilaterally is to recognize (and withdraw recognition from) foreign governments.  The Obama administration has just exercised that power with respect to Libya.

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President's Letter and Report on Libya

June 16, 2011

President Obama has responded to Speaker Boehner's request with a letter regarding the war powers resolution and a detailed report on military action in Libya.  The bottom line: the President believes that the action in Libya is not covered by the War Powers Act, but he supports adoption of the bipartisan resolution authorizing military force […]

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House Speaker John Boehner's Letter to President Barack Obama on Libya, and the Memo From the Office of Legal Counsel

June 15, 2011

Speaker Boehner has sent a letter to President Obama regarding the legality of our military action in Libya under the Constitution and the War Powers Act.  Speaker Boehner does not appear to oppose the military involvement so much as he desires to weaken or eliminate the War Powers Act.

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"Justice Has Been Done"

May 2, 2011

The President announces that Osama Bin Laden has been killed.

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The Constitutionality of Military Action Against Libya

March 20, 2011

Is it constitutional for President Obama to have ordered military action against Libya without specific Congressional approval?

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