The Law of the Executive Branch

Author(s):  
Fisher Louis

The scope of presidential authority has been a constant focus of constitutional dispute since the Framing. The bases for presidential appointment and removal, the responsibility of the Executive to choose between the will of Congress and the President, the extent of unitary powers over the military, even the ability of the President to keep secret the identity of those consulted in policy making decisions have all been the subject of intense controversy. The scope of that power and the manner of its exercise affect not only the actions of the President and the White House staff, but also all staff employed by the executive agencies. There is a clear need to examine the law of the entire executive branch. This book places the law of the executive branch firmly in the context of constitutional language, framers' intent, and more than two centuries of practice. The book strives to separate legitimate from illegitimate sources of power, through analysis that is informed by litigation as well as shaped by presidential initiatives, statutory policy, judicial interpretations, and public and international pressures. Each provision of the US Constitution is analyzed to reveal its contemporary meaning in concert with the application of presidential power. Controversial issues covered in the book include: unilateral presidential wars; the state secrets privilege; extraordinary rendition; claims of “inherent” presidential powers that may not be checked by other branches; and executive privilege.

Author(s):  
Jacob L. Mey

AbstractThe present paper discusses the evolution of legal discourse as it is happening in a number of well-publicized American cases. Discussions of the First and Second Amendments to the US Constitution in relation to freedom of the press and the freedom to carry and use arms are followed by a general discussion of what it means to have a legal text considered as binding across the centuries. It is shown that legal discourse is pragmatically oriented, that is to say, its application and evolution are subject to the general evolution of society and its members, the people interacting with, and interpreting that discourse; this evolution is thus a typical pragmatically relevant process. Over the course of the centuries and years, accumulative gradual developments have often ended up totally altering the interpretation of certain laws and statutes – sometimes to the advantage, sometimes to the disadvantage of underprivileged segments of society, such as the Black population and people of different sexual orientations. The paper will discuss some characteristic historic and contemporary cases of this development.


Subject The debate on new rules authorising the use of military force. Significance When senators return from the summer recess, they will have to consider the 2018 National Defense Authorization Act (NDAA) passed by the House of Representatives on July 14. This NDAA, the annual spending plan for the US military, drew controversy because of a bipartisan amendment that would have repealed the 2001 Authorization for Use of Military Force (AUMF), the legal basis for military action in the US global counterterrorism campaign. The amendment was blocked by the speaker of the House, Paul Ryan. Impacts Erratic White House policymaking will spark congressional initiatives to reassert the legislature’s authority. Congressional oversight of the armed drone programme will defer to the executive branch. Trump’s North Korea threats are generating additional scrutiny of the president’s absolute authority to order a nuclear attack.


Author(s):  
Valentina Aronica ◽  
Inderjeet Parmar

This chapter examines domestic factors that influence American foreign policy, focusing on the variety of ways in which pressure groups and elites determine and shape what the United States does in the international arena. It first considers how US foreign policy has evolved over time before discussing the US Constitution in terms of foreign policy making and implementation. It then explores institutional influences on foreign policy making, including Congress and the executive branch, as well as the role of ‘orthodox’ and ‘unorthodox’ actors involved in the making of foreign policy and how power is distributed among them. It also analyzes the Trump administration’s foreign policy, taking into account the ‘Trump Doctrine’ and the US strikes on Syria.


Author(s):  
Gray Christine

This chapter examines the impact of the ‘war against terror’ on international law. The US invasion of Afghanistan in response to the massive terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001 led to a fundamental reappraisal of the law of self-defence. The US response to 9/11 was to announce ‘a different kind of war against a different kind of enemy’—a global war on terrorism. Many writers now argue that 9/11 and subsequent state practice have changed the law on self-defence, but the legal situation is not so clear-cut. More recently, the rise of ISIS in Iraq and Syria, and the military response by the USA and other states since 2014, have given rise to renewed debate about the scope of self-defence. And President Trump’s foreign policy with regard to North Korea and Iran has once again raised questions about the controversial doctrine of pre-emptive self-defence.


2020 ◽  
Vol 45 (4) ◽  
pp. 485-499
Author(s):  
Timothy Stoltzfus Jost ◽  
Katie Keith

Abstract Despite its passage a decade ago, the Affordable Care Act (ACA) remains a politically divisive law. These political divisions have long been on display in Congress, in the White House, and in states. A long-standing stalemate in Congress—where Republicans cannot repeal the law and Democrats cannot improve it—has emboldened efforts by the executive branch to act unilaterally to implement, or undermine, the ACA. In turn, the law's opponents and supporters have turned to the courts to promote their favored policy agendas through both broadside attacks on the law and targeted challenges to its implementation. Litigation has become politics pursued through other means. These challenges have often been brought, or opposed, by state attorneys general and governors, with red-state coalitions facing off against blue-state coalitions. ACA litigation has also been characterized by forum shopping, nationwide injunctions, and questions about the court as a truly adversarial forum. This article briefly reviews the history of ACA litigation, discusses these legal norms in the context of the historic health reform law, and considers the implications of this history and the changing judiciary for future health reform efforts.


2002 ◽  
Vol 3 (9) ◽  
Author(s):  
Luisa Vierucci

The White House statement of February 7, 2002, according to which the Taliban and Al-Qaeda members detained in Camp X-Ray in Guantanamo Bay following the September 11, 2001, events had no right to prisoner of war (POW) status but were merely ‘unlawful combatants’ had broad repercussions in the public opinion as well as among legal scholars. The debate focused on the legal status and treatment of the persons held in Guantanamo Bay mainly in light of the Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War. Comparatively little attention has been paid to the treatment due to the detainees in light of the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism issued by the US President on November 13, 2001 (Military Order). Also the treatment to which the detainees are entitled by virtue of the Fourth Geneva Convention of 1949 relative to the Protection of Civilians in Time of War has been largely overlooked. This brief paper intends to contribute to remedying such lacunae but will be limited to an analysis of the provisions of the 1949 Geneva Conventions in light of the events of September 11th without reference to previous practice.


Author(s):  
Ingo Trauschweizer

In 1984 officials in Washington debated reforming the defense establishment and who should advise presidents on strategy in times of crisis. Maxwell Taylor, former chairman of the Joint Chiefs of Staff (JCS), John F. Kennedy White House insider, and one of the architects of America’s war in Vietnam, told members of Congress that the JCS were divided by service interests and had never fulfilled their role as strategy advisors. He concluded the system should not be reformed—it should be torn down. The Goldwater-Nichols Act that resulted in October 1986 did not quite meet Taylor’s radical proposal of a complete restructuring even though it enhanced the powers of the JCS chairman. This book considers what shaped Taylor’s thinking. Through his career in the Cold War we can investigate critical questions from the vantage points of the military and the executive branch: What is the role of the armed services in national and international security strategies? Where do service interests and national interest intersect and what happens when there is less-than-complete overlap? What is the role of the JCS and their chairman? And how could the armed services prepare for vastly different challenges, ranging from nuclear war to conventional battle, counterinsurgency, and nation building?...


Subject US-Thailand relations. Significance The US Pacific Command's participation in the successful international collaboration to rescue 13 people from a cave in Thailand on July 10 was viewed on both sides as an affirmation of the US-Thailand alliance, and as a further boost to a new momentum in the broader bilateral relationship following a sharp slowdown after Thailand’s 2014 military coup. Improvement in relations is due partly to the reluctance of President Donald Trump's administration to emphasise democracy and human rights in foreign policy and more specifically to Thai Prime Minister Prayuth Chan-o-cha’s visit to the White House last October. Impacts Warmer ties will not necessarily translate to increased US investment in Thailand. Thailand will need to look further afield for private investment in its Eastern Economic Corridor. If a China-US trade war occurs, Bangkok would try to avoid choosing sides but could ultimately pick Washington. The Trump administration’s push to reduce the US trade deficit with Thailand could cause frictions absent a quick deal. Thailand’s new constitution gives the military a lasting political role; US-Thai military links could therefore later help ties.


2017 ◽  
Author(s):  
Achmad Zulfikar ◽  
Diah Sulung Syafitri ◽  
Muhammad Abdul Aziz Putra Andistan

Kebebasan bagi masyarakat merupakan poin penting yang melatarbelakangi kehadiran nilai-nilai Demokrasi di tengah-tengah bangsa Amerika. Berdasarkan pengalaman kelam di masa lalu, bapak pendiri bangsa Amerika telah belajar bahwa pengekangan terhadap masyarakat oleh pemerintah tidak boleh dilakukan, sehingga nilai-nilai Demokrasi ini benar-benar anti pemaksaan. Kehadiran nilai-nilai Demokrasi di saat keringnya partisipasi politik di suatu negara seakan menjadi oase bagi rakyat di negara tersebut. Pandangan AS yang menjadikan demokrasi sebagai sarana menciptakan perdamaian sebagaimana pemikiran filsuf Jerman Immanuel Kant yang menyatakan bahwa dalam sebuah republik (negara hukum demokratis), dimana kebijakan politik setiap negara ditentukan menurut kehendak warga negara, dan bukan kehendak seorang diktator. Dalam pembahasan ini penulis memfokuskan pada salah satu negara di kawasan Asia Tenggara yang masih labil dalam penerapan demokrasi, yakni Myanmar. Dalam dinamika hubungan AS dan Myanmar, keluarnya AS dari Myanmar dikarenakan rezim militer otoriter pimpinan Ne Win menolak segala bentuk bantuan AS tahun 1963. Namun tahun 1990, angin segar demokrasi kembali berhembus ketika suatu kekuatan politik baru muncul yakni National League for Democracy (NLD) pimpinan Aung San Suu Kyi. Didorong oleh keinginan AS mendemokrasikan Myanmar, maka AS mendukung penuh perjuangan NLD yang menjadi kebijakan AS dalam penerapan demokrasi di Myanmar. Selanjutnya kebijakan AS menerapkan sanksi ekonomi atas Myanmar tahun 1997 berdasarkan keputusan kongres juga dijalankan dalam rangka menekan pemerintahan militer Myanmar agar mempercepat transisi menuju demokrasi. Dua kebijakan tersebut kemudian menimbulkan gejolak internal di Myanmar yang akhirnya mendesak pemerintahan militer untuk segera menerapkan sistem demokrasi. Berdasarkan hasil penelaahan kami terdapat tujuh implikasi yang bersumber dari internal maupun eksternal Myanmar. Adapun kebijakan AS dalam penerapan sistem demokrasi dinilai sukses, karena dua kebijakan AS memberikan dampak terhadap transisi demokrasi di Myanmar.---Freedom for the community is an important point behind the presence of democratic values in the midst of the nation. Based on the past experience, the founding father of the American nation has learned that people restrictions by the government are not allowed, so the democratic values are really anti-coercion. The presence of democratic values in the absence of political participation in a country seems to be an oasis for the people of the country. The US view that makes democracy a means of creating peace as the German philosopher Immanuel Kant thinks that in a republic (a state of democratic law), where the policies of each state are determined according to the will of the citizens, and not the will of a dictator. In this discussion the author focuses on one of the countries in Southeast Asia are still unstable in the application of democracy, namely Myanmar. In the dynamics of US and Myanmar relations, the US exit from Myanmar due to the authoritarian military regime led Ne Win rejected all forms of US aid in 1963. But in 1990, the fresh air of democracy blew again when a new political force emerged namely the National League for Democracy (NLD) Aung San Suu Kyi. Encouraged by US desires to democratize Myanmar, the United States fully supports the NLD's struggle for US policy on democracy in Myanmar. Furthermore, the US policy of imposing economic sanctions on Myanmar in 1997 based on congressional decision is also implemented in order to suppress the military government of Myanmar in order to accelerate the transition to democracy. The two policies then led to internal turmoil in Myanmar which eventually urged the military government to immediately implement the democratic system. Based on our review there are seven implications that come from internal and external Myanmar. The US policy in the application of democratic system is considered successful, because the two US policies have an impact on democratic transition in Myanmar.


2017 ◽  
Author(s):  
Michael J Madison

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.


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