In association with the International Commission of Jurists

Author: Peter Spiro

17 Jun

The Supreme yesterday gave the green light to an individual asserting a Tenth Amendment defense in a criminal prosecution under a federal statute enacted pursuant to the Chemical Weapons Convention (Bond v. United States).  The facts of the case are certainly more lurid than our run-of-the-mine foreign relations law cases.  The basic claim:  the Treaty Power doesn't add anything to...

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16 Jun

Here is the Administration's legal analysis (in full) of why the 60/90-day clock of the War Powers Resolution doesn't apply to the continuing Libya operation: The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are...

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03 Jun

Here's the text of the resolution passed in the House this afternoon on Libya, as introduced by Speaker Boehner.  It's not insignificant, as an institutional pronouncement, even though it's non-binding. It amounts to a kind of soft law.  The resolution provides that "the President shall not deploy, establish, or maintain the presence of units and members of the United...

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26 May

Opinion here in Chamber of Commerce v. Whiting .  The Court green-lights state use of licensing laws as a tool of immigration enforcement, consistent with the 1986 Immigration Reform and Control Act.  It also upheld Arizona's imposition of the e-Verify system as a mandatory requirement on employers, where Congress had deemed the system voluntary. The decision is important in...

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20 May

Silence from the White House today on how to rationalize continuing participation in Libya operations notwithstanding the expiration of the WPR's 60-day-clock.  I think this is a relatively gutsy move on the Obama Administration's part.  Why go on pretending that section 5(b) of the Resolution poses any constraint on presidential discretion? Unlike his predecessors (Bill Clinton in particular, with his pretty...

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27 Apr

Release of Obama's long-form birth certificate won't satisfy the real conspiracists: they are already all over putative discrepancies in the document.  But the document doesn't extinguish another birther argument: Obama wasn't a "natural born citizen" because he had dual citizenship at birth.  Here's an example from among the many birthers who have hit their comment buttons today: Thank you, Mr President...

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25 Apr

We're pleased this week to host a discussion of Peter Lindseth’s new book, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010).  Peter is Olimpiad S. Ioffe Professor of International and Comparative Law at the University of Connecticut Law School.  Among other honors, Peter he has been a fellow and visiting professor in the Law and Public Affairs (LAPA)...

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21 Apr

For the students among you ramping up for your international law exams, you're probably glad that you won't have to face this kind of question (which appeared on Professor Beale's 1905 exam at Harvard Law School): Indictment for larceny. The defendant was an officer in the English army detailed to pursue a, band of Indians who had been murdering settlers in...

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07 Apr

The Office of Legal Counsel has released an opinion asserting the constitutionality of President's Obama's use of force against Libya.  Here's how it frames the question: [T]he President’s legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President’s action as Commander in...

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18 Mar

Kal Raustiala asked that we post the following.  Sounds like an excellent initiative on ASIL's part. Call for Scholarly Papers The Inaugural ASIL Research Forum November 4-5, 2011 The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011. The Research Forum is a new initiative...

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17 Mar

Bruce Ackerman and Oona Hathaway say yes; Jack Goldsmith, no.  I'm with Jack on this one.  Especially as authorized by the UN Security Council, there's solid precedent for proceeding without an advance congressional okay.  As Jack points out, Kosovo is probably the closest analogy in terms of the scope of the operation (a case in which authorizing legislation was voted...

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16 Mar

Now that it appears to have been resolved with the payment of "blood money" to the families of those killed by Davis, there may be some lessons here. First, the compensation element poses an interesting precedent.  Though presumably ex gratia and at least nominally made by Davis in his personal capacity, payment makes victims whole while avoiding the risk of politically...

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