Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 38, No. 2, Spring

Advising the President: The Growing Scope of Executive Power to Protect America
INTRODUCTION I. FRAMEWORKS OF PRESIDENTIAL AUTHORITY A. Constitutional Framework B. Statutory Framework 1. War Powers Resolution a. Hostilities b. Emerging Military Tactics 2. Authorizations for Use of...
Advising the President: The Growing Scope of Executive Power to Protect America
C. Inherent Authority of the Executive Branch Much of the debate over the exercise of executive power in the national security context arises in those circumstances where the President arguably has neither express constitutional nor express congressional...
Exploring U.S. Treaty Practice through a Military Lens
I. TREATY CODIFICATION OF THE LAWS AND CUSTOMS OF WAR A. The Law of Armed Conflict Generally B. Why Treaties Still Matter II. TREATY FORM: ADVICE AND CONSENT A. 1949 Geneva Conventions: The United States as Standard Bearer...
Exploring U.S. Treaty Practice through a Military Lens
This should not, however, be seen as suggesting that these treaties are in some way insignificant. To the contrary, they remain central to the formulation of U.S. national security policies and to the protection of individuals under U.S. control. Thus,...
Liberty Requires Accountability: Checking Delegations to Independent Agencies
Introduction "Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable." (1) By restricting Congress's ability to grant broad legislative power to...
Preface
Two years ago, during my first year of law school, Dzhokhar and Tamerlan Tsamaev detonated two pressure cooker bombs at the Boston Marathon, killing three people and injuring hundreds more. I recall vividly the federal troops that swarmed the city,...
Textualism and the Presumption of Reasonable Drafting
INTRODUCTION For much of our nation's history, the Supreme Court has held that the text of a statute should yield to its purpose whenever the two appear to conflict. (1) Even when the text was unambiguous, the Court would often attempt to discern...
The Argument for a New and Flexible Authorization for the Use of Military Force
INTRODUCTION With the murder of American citizens, the unraveling of opportunities provided by our service members to the people of Iraq, and the potential destabilization of the Middle East, few will argue that the terrorist organization known...
The Founders' Origination Clause and Implications for the Affordable Care Act
This Article is the first comprehensive examination of the original legal force of the Constitution's Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on Founding-Era British and American legislative...
The Founders' Origination Clause and Implications for the Affordable Care Act
B. How the American States Adopted New Rules Twelve of the fourteen states (including Vermont) adopted constitutions between independence and the composition of the federal Constitution. (Connecticut and Rhode Island, whose royal charters were uncommonly...
"Your Raisins or Your Life": The Harrowing of the Takings Clause in Horne V. U.S. Department of Agriculture
There are few areas of law that fuel as much passion and debate as government takings. To understand the importance Americans place on property rights, one need only look at the outrage generated in the wake of Kelo v. City of New London (1) and the...
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