Georgia Law Professor Cohen publishes at Just Security on “The National Security Delegation Conundrum”

“How much authority — how much room to make policy choices—can Congress delegate to the president and executive branch?”

So begins “The National Security Delegation Conundrum,” an analysis of the foreign relations jurisprudence of the U.S. Supreme Court, published at Just Security by Harlan Grant Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia Law.

The focus of Cohen’s commentary is Gundy v. United States, a June 20 decision by a divided Court (4 supporting an opinion by Justice Elena Kagan and 3 an opinion by Justice Neil Gorsuch; Justice Samuel Alito concurred in the judgment). It declined to revive the nondelegation doctrine — but did so, Professor Cohen points out, in a way that raised further questions on how that doctrine applies to cases involving national security.

Instances in which these questions might be relevant have occurred frequently in the last couple years, Cohen wrote, on issues as varied as migration of peoples and trade in auto parts. After analyzing the issues at hand, Cohen concluded that Gundy did little to resolve them:

“What is clear though is that until a test or principle is found, the national security delegation conundrum will remain.”

The full Just Security analysis is here.

Exploring “Executive Branch Lawyering” with US Judge David Barron, former head of Department of Justice Office of Legal Counsel

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.

(Cross-posted from Diane Marie Amann blog)

Georgia Law Professor Chapman presents “Due Process of War” at Oxford University Faculty of Law

OXFORD – University of Georgia School of Law Professor Nathan S. Chapman recently visited Oxford University to deliver a paper entitled “Due Process of War.” He spoke at Oxford’s Trinity College, on the invitation of the Programme for the Foundations of Law and Constitutional Government, a project within the auspices of the Oxford Faculty of Law.

In his presentation, Chapman set forth an historical account of how thinkers in America’s founding era understood the interplay of war and due process. He then linked these understandings to much more recent events, such as the United States’ 2011 targeted killing by drone strike of an American citizen, Anwar al-Awlaki.

The paper follows from Chapman’s other works in this area, including “Due Process Abroad,” published in 2017 in the Northwestern University Law Review.

Associate Dean Lori Ringhand wins Fulbright Distinguished Chair at University of Aberdeen in Scotland

Delighted to announce that Lori A. Ringhand, Associate Dean for Academic Affairs and J. Alton Hosch Professor of Law here at the the University of Georgia School of Law, has been awarded a Fulbright Distinguished Chair for Spring 2019, when she will be in residence at the University of Aberdeen, Scotland. While overseas, she also will present a Fulbright Gresham College Lecture.

A scholar whose expertise includes comparative constitutional law, Ringhand earned a B.C.L. in European and Comparative Law from Oxford University in England, and a J.D. from the University of Wisconsin Law School. She plans to spend the semester researching U.S. and British approaches to campaign finance regulation.

Cohen publishes article on political question doctrine in wake of Zivotofsky

Harlan Grant Cohen, the Gabriel N. Wilner/UGA Foundation Professor in International Law here at the University of Georgia School of Law, has published an article examining the U.S. political question doctrine in light of recent Supreme Court litigation in Zivotofsky, which arose out of the request by U.S. citizens that their child, born in Jerusalem, be issued a passport designating “Israel” as the child’s birthplace. Entitled “A Politics-Reinforcing Political Question Doctrine,” Professor Cohen’s article appears at 49 Arizona State Law Journal 1 (2017).

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded at this SSRN link.

Here’s the abstract:

“The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones.

“A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is needed is a politics-reinforcing political question doctrine that can balance the need for robust review with the desire for robust debate. The uncertain boundaries between the political branches’ overlapping powers create space for political debate. Their overlapping powers allow different groups to access the political system and have a voice on policy. Deciding separation of powers questions once-and-for-all can shut off those access points, shutting down political debate. A politics-reinforcing political question doctrine preserves the space in the political system for those debates by turning the pre-Zivotofsky political question doctrine on its head. Whereas the pre-Zivotofsky political question suggested abstention when the branches were in agreement and scrutiny when they were opposed, a politics-reinforcing political question doctrine suggests the opposite, allowing live debates to continue while scrutinizing political settlements. In so doing, it brings pluralism and politics back into the political question analysis, encouraging democracy rather than deference.”

“Judicial Federalism in the European Union,” new article by Professor Wells

Professor Michael Lewis Wells, who holds the Marion and W. Colquitt Carter Chair in Tort and Insurance Law here at the University of Georgia School of Law, has published an article comparing judicial practice in Europe and the United States. Entitled “Judicial Federalism in the European Union,” it appears at 54 Houston Law Review Winter ​697 (2017).

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded at this SSRN link.

Here’s the abstract:

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of Europe.” The article argues that central government courts and member state courts are not fungible. In close cases, the latter are more likely than the former to favor the member state’s interests. The EU’s approach to judicial federalism, with its heavy reliance on member state courts, will retard the political integration envisioned by the Treaty. The article develops this thesis by comparing EU judicial federalism with the American variant, which differs from the EU system in two key respects: First, most issues of EU law are adjudicated in the member state courts. In the U.S., a network of lower federal courts adjudicates many federal law issues. Second, the U.S. Supreme Court reviews state court judgments that turn on issues of federal law. The Court of Justice of the European Union does not review member state judgments, even on issues of EU law. The article argues that these aspects of the federal system in the U.S. were indispensable to achieving and maintaining national unity. If the EU aspires to a similar level of political integration, their absence may prove to be a significant obstacle.

“Highly recommended”: Professor Chapman on “Due Process Abroad”

Due Process Abroad is the title of the timely manuscript that Nathan S. Chapman (right), an Assistant Professor here at the University of Georgia School of Law, has just posted at SSRN. At the influential Legal Theory Blog, Georgetown Law Professor Lawrence Solum has given his “highly recommended” recognition to this study of the extraterritorial application of the Due Process Clause of the U.S. Constitution.

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded here.

Here’s the abstract:

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure.

Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus. Based on the English historical background, constitutional structure, and the early practice of federal law enforcement on the high seas, this Article argues that the founding generation understood due process to apply to any exercise of federal law enforcement, criminal or civil, against any person, anywhere in the world. Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law — even if the capture occurred abroad or the suspect was a non-citizen.

This history has important implications. It strongly supports the extension of due process to federal criminal and civil law enforcement, regardless the suspect’s location or citizenship. This principle has immediate implications for cross-border shootings, officially sponsored kidnappings and detentions abroad, the suspension of immigration benefits, and the acquisition of foreign evidence for criminal defendants.