“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.
Arms sales and the conflict in Yemen will be the focus of a panel at the American Society of International Law Annual Meeting in Washington D.C. from 2:30-4:00 p.m. on Wednesday, April 4, 2018.
The panel will examine why some states halt arms sales to countries in conflict, while others do not. Using Saudi Arabia’s support for the Yemeni government as a case study, this session will focus on why the United States has continued (and, in fact, increased) arms sales to Saudi Arabia while some European governments have halted such sales pending further review. The panel will examine the changes to US policy and regulations under the Trump administration, focusing on the use and development of international standards related to arms sales, in particular whether the Arms Trade Treaty has been an effective tool in stopping irresponsible arms sales.
Panelists will include: Brittany Benowitz, Chief Counsel at the American Bar Association’s Center for Human Rights (left); Dafna H. Rand, former Deputy Assistant Secretary, Department of State Bureau of Democracy, Human Rights & Labor (center left); and Rachel Stohl, Managing Director of the Stimson Center, and Director of the Conventional Defense Program (center right). Moderating the panel will be our Center’s Director, Kathleen A. Doty (right).
The panel is presented jointly by two ASIL interest groups, the Nonproliferation, Arms Control and Disarmament Interest Group and the Lieber Society on the Law of Armed Conflict. The session is also co-sponsored by the Dean Rusk International Law Center, CIVIC, and the Stimson Center.
ASIL attendees and others in Washington are most welcome to join us and take part in the April 4 conversation, to be held in the Lexington Room of the Hyatt Regency Capitol Hill, 400 New Jersey Avenue, NW. Please join us if you will be in Washington; light refreshments will be served.
We at the University of Georgia School of Law Dean Rusk International Law Center are delighted to welcome Benjamin Zawacki, a Bangkok-based human rights researcher and advocate, to campus to discuss his recently-released book, Thailand: Shifting Ground between the US and a Rising China. He will be speaking tomorrow, March 20, 2018, from 11:45-1:00 p.m. in the Larry Walker Room in Dean Rusk Hall.
Joining him in conversation will be UGA Department of History Professor Ari Levine, an expert in China. Zawacki will discuss Thailand’s recent pivot towards China following decades as a key strategic ally of the United States, as well as what that means for a new administration in Washington. Levine will pose key questions and moderate a discussion with attendees.
Zawacki has lived in Thailand for the past 15 years. In 2015, he was a visiting fellow in the Human Rights Program at Harvard Law School and a term member on the Council of Foreign Relations. He previously served as the Senior Legal Advisor for Southeast Asia with the International Commission of Jurists, the Acting Regional Representative of the International Development Law Organization, and Amnesty International’s Myanmar, Thailand, and Asian Emergencies Researcher.
The event is co-sponsored by the law school’s Dean Rusk International Law Center, the Department of History, and the International Law Society. It is presented as part of the Center’s United Nations Academic Impact partnership.
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.”
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.
I’m pleased to announce that on Monday, December 5, 2016, I’ll be speaking on a panel about Fidel Castro’s legacy. It will take place from 2:00-3:30 p.m. in the Zell Miller Learning Center, Room 213.
Convened by the Latin American and Caribbean Studies Institute and co-sponsored by the Dean Rusk International Law Center, the panel will also feature professors from several departments at the University of Georgia, including: Reinaldo Román from History (left), Susan Thomas from Musicology (left), and Tim Samples from the Terry College of Business (right).
We’ll discuss the legacy, both positive and negative, that Castro leaves behind: universal healthcare, employment, and education, but also international sanctions, and human and civil rights abuses (about which I’ve written, here). In particular, I’ll talk about the legacy of U.S.-Cuban relations as seen through the U.S. naval base at Guantanamo, one of my current topics of research.
Hope to see you there!
Issues of foreign policy and national security remain foremost in many voters’ minds as the 2016 U.S. Presidential election has entered its final, post-Labor Day lap. We’re thus delighted to be welcoming an expert in this areas to our Athens campus next week:
Fresh from recent lectures in Oxford, Auckland, and Berlin, Ambassador Derek Shearer will deliver a public talk entitled “The Whole World Is Watching: Foreign Policy & the U.S. Presidential Election” at 12:30 p.m. this Tuesday, September 13, at the University of Georgia School of Law. Sponsoring the talk is Georgia Law’s Dean Rusk International Law Center; cosponsors are the World Affairs Council of Atlanta and the University of Georgia School of Public & International Affairs.
Shearer, whom I’ve long been privileged to call a colleague, is Chevalier Professor of Diplomacy and World Affairs at Occidental College in Los Angeles who served as an economics official in the U.S. Department of Commerce, and then as U.S. Ambassador to Finland from 1994 to 1997. He’s the author of several books and a frequent writer on and contributor to public policy discussions; his articles have appeared in The New York Times, Wall Street Journal, and International Herald Tribune.
In addition to the talk, Shearer will speak to students in Election Law and Strategic Intelligence courses.
We’re also very pleased to welcome Sue Toigo (left), Chairman of Fitzgibbon Toigo Associates and Shearer’s wife. She’ll discuss corporate responsibility with Georgia Law Business Ethics students.
For additional details, e-mail email@example.com.
(Cross-posted from Diane Marie Amann)