DOCSLIB.ORG

What Is the Constitutional Textual Basis for Key Statutes That Constrain The

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
What Is the Constitutional Textual Basis for Key Statutes That Constrain The THE LAND AND NAVAL FORCES CLAUSE Dakota S. Rudesill* Abstract What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best or at least strong additional textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article theorizes the Clause as providing Congress * Assistant Professor of Law, Moritz College of Law, The Ohio State University. For their comments I thank participants at conferences and workshops held at Yale Law School, The Ohio State University’s Moritz College of Law, the University of Toledo School of Law, and Indiana University’s Maurer School of Law, in addition to participants in the American Constitution Society’s junior scholars workshop at the annual meeting of the American Association of Law Schools (AALS). Special thanks for valuable discussions or reading drafts goes to Akhil Amar, James E. Baker, Martha Chamallas, Alan Cohn, Ruth Colker, Ashley Deeks, William Eskridge, Michael Gerhardt, Steve Huefner, Heidi Kitrosser, Harold Hongju Koh, David Koplow, Debby Merritt, Jon Michaels, John Mikhail, Peter Shane, Lee Strang, Christopher Walker, Robin West, and Evan Zoldan. I thank Moritz for its research support. A number of research assistants were very helpful to this project over its development, particularly Clair Viglione, Sarah Erickson-Muschko, Thomas Rovito, Billy Braff, Rebecca Givner-Forbes, Andrew Hopkins, Lee Matheson, and Cowles Ostrander. I am responsible for any errors. I thank the editors of the University of Cincinnati Law Review for permission to reproduce this article or any part of it for any scholarly, policy, or pedagogical purpose. 392 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86 two powers: a well-recognized Internal Regulation power over military justice and other internal affairs of the national security apparatus, and also an External Government power over operations. This article analyzes the Clause’s text, counter- authoritarian origins, and its constitutional interpretation since the Founding Era. This article argues for the Clause’s constitutional rediscovery and embrace as primary textual footing for a series of vital statutory frameworks that govern the military and the Intelligence Community at the intersection of liberty and security, and regarding the use of force and cyber operations. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors must give life to its statutes and constitutional values for it to be meaningful. Table of Contents Introduction .......................................................................................... 393 I. Internal Regulation ......................................................................... 398 II. External Government ...................................................................... 408 A. Text ....................................................................................... 409 B. Origins .............................................................................. 416 1. British and American Origins .................................. 417 2. First Iteration: The Clause in the Articles of Confederation .......................................................... 420 3. Second Iteration: The Clause in the Constitution .... 423 C. Constitutional History: Citation to the Clause in the Three Branches ..................................................................... 433 1. Legislative Branch ................................................... 434 2. Executive Branch .................................................... 441 3. Judicial Branch ........................................................ 445 III. The Clause Rediscovered: Constitutional Footing for Statutory Frameworks ................................................................................ 450 A. Internal Regulation ............................................................... 452 1. Uniform Code of Military Justice (UCMJ) ............. 452 2. National Defense Authorization Acts (NDAAs) ..... 452 B. External Government ............................................................ 453 1. Posse Comitatus Act and Domestic Relatives ......... 453 2. Foreign Intelligence Surveillance Act (FISA) ......... 457 3. Covert Action .......................................................... 461 2018] THE LAND AND NAVAL FORCES CLAUSE 393 4. Interrogation ............................................................ 463 5. War Powers Resolution ........................................... 464 IV. The Clause Rediscovered: Contemporary Importance ................... 467 A. In Context of New Lawmaking Dynamics ........................... 467 B. In Context of Change in the Security Environment, Especially Growing Cyberization ......................................... 472 C. In Context of Volatile Politics and Policy ............................ 475 V. Conclusion ...................................................................................... 480 INTRODUCTION Article I, Section 8, Clause 14 of the United States Constitution provides Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” This Land and Naval Forces Clause1 is textually located within the wheelhouse of Congress’s legislative powers regarding national security. The Clause has been understood since the Founding to grant Congress authority over military justice, and it has been cited by the Supreme Court in landmark cases.2 This provision’s full history and significance beyond the military justice context, however, are unappreciated, in some respects ambiguous, and insufficiently studied.3 1. There is no consensus on what to call the Clause. The Supreme Court recently referenced part of it (as explained below) as the “Military Regulation Clause.” See United States v. Kebodeaux, 570 U.S. 387, 394-95 (2013). Other cases simply quote it, or give the Clause different names. See, e.g., United States v Ali, 71 M.J. 256, 272 (C.A.A.F. 2012) (“Rules and Regulations Clause”) (Baker, J., concurring). Some scholars reference “the Government and Regulation power.” See Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299, 332 (2008). Others reference the “Rules for the Government and Regulation Clause.” See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – A Constitutional History, 121 HARV. L. REV. 941, 1082-83 (2008) [hereinafter Lowest Ebb Part II]. Some practitioners call it the Make Rules Clause. I term it the Land and Naval Forces Clause to emphasize its subject matter and distinct language versus other Article I, Section 8 war powers. 2. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006) (Clause cited along with others providing Congress national security powers, in case rejecting President’s order regarding trials of post- 9/11 detainees as violation of UCMJ); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952) (Jackson, J., concurring) (Clause cited in canonical national security separation of powers case). 3. This article, like other articles focused on individual clauses of the Constitution, employs common interpretive approaches without being about constitutional interpretation. See Andrew Kent, Congress’s Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 TEX. L. REV. 843, 857 (2007) (article on Define and Punish Clause not intended to resolve larger originalist debates); John Mikhail, The Necessary and Proper Clauses, 102 GEO. L.J. 1045, 1054 (2013) (article on Necessary and Proper Clause does not endeavor to engage with originalist conversation in systematic fashion or set out originalist theory). Reserving the interpretive methodological implications of this study for a future work, this article does close textual and structural analysis, including intratextual work; considers a range of originalist evidence that bears on Framer understanding and original public meaning (different methodological focuses between which this article does not choose); gathers and analyzes relevant parts of the constitutional record, including via empirical analysis of legislative citations and 394 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86 This article urges the constitutional rediscovery of this neglected “cryptic” Clause4 – rediscovery of its text, counter-authoritarian purposes, constitutional history, and the growing contemporary importance of statutes written pursuant to it. Relying on the Clause, Congress can restrain the national security apparatus and the President’s use of it regarding military justice and discipline, espionage, cyber operations, and regarding surveillance, interrogation, and other liberty infringements. The conventional assumption is that the Clause
Load more

Recommended publications
  • Yale Law School 2007-2008
    bulletin of yale university bulletin of yale Series 1o3 8 Number 10, 2007 August 2007–2008 Yale Law School Yale bulletin of yale university August 10, 2007 Yale Law School Periodicals postage paid Periodicals Connecticut Haven, New 06520-8227 CT New Haven Haven New bulletin of yale university bulletin of yale Bulletin of Yale University The University is committed to basing judgments concerning the admission, education, and employment of individuals upon their qualifications and abilities and a∞rmatively Postmaster: Send address changes to Bulletin of Yale University, seeks to attract to its faculty, sta≠, and student body qualified persons of diverse back- PO Box 208227, New Haven CT 06520-8227 grounds. In accordance with this policy and as delineated by federal and Connecticut law, Yale does not discriminate in admissions, educational programs, or employment PO Box 208230, New Haven CT 06520-8230 against any individual on account of that individual’s sex, race, color, religion, age, Periodicals postage paid at New Haven, Connecticut disability, status as a special disabled veteran, veteran of the Vietnam era, or other covered veteran, or national or ethnic origin; nor does Yale discriminate on the basis of Issued seventeen times a year: one time a year in May, November, and December; sexual orientation or gender identity or expression. two times a year in June; three times a year in July and September; six times a year University policy is committed to a∞rmative action under law in employment of in August women, minority group members, individuals with disabilities, special disabled veterans, veterans of the Vietnam era, and other covered veterans.
    [Show full text]
  • Books in Print Here’S Just a Sampling of the Many Other Books Recently Jack Fuller, Editor Written Or Edited by Our Alumni, Faculty, Staff, and Students
    14 15 yale law report summer 2013 books in print Here’s just a sampling of the many other books recently Jack Fuller, Editor written or edited by our alumni, faculty, staff, and students. Restoring Justice: The Speeches of We welcome your submissions. Attorney General Edward H. Levi Please contact us: [email protected]. University of Chicago Press, 2013 Fuller ’73 has selected speeches by Levi ’38 jsd that set out the Jonathan R. Macey ’82, attorney general’s view of the Logan Beirne considerable challenges he Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law Blood of Tyrants: faced: restoring public confi- The Death of Corporate Reputation: George Washington & the Forging dence through discussion and How Integrity Has Been Destroyed on Wall Street of the Presidency Anupam Chander acts of justice, combating the Financial Times Press, 2013 Encounter Books, 2013 The Electronic Silk Road: corrosive skepticism of the How the Web Binds the World Together For more than a century, companies credit rating agencies and law firms, among other Wall Delving into the forgot- time, and ensuring that the executive branch in Commerce would behave judicially. Also included are seeking access to the U.S. markets made huge investments Street mainstays, continue to thrive despite reputations for ten—and often lurid—facts of the revolutionary war, Yale University Press, 2013 addresses and Congressional testimonies that in their reputations. In order to cultivate and maintain rep- incompetence or shady dealings or simply for putting their Beirne ’11 focuses on George speak to issues that were hotly debated at the utations as faithful brokers and intermediaries they treated own interests ahead of their customers.
    [Show full text]
  • Yale Law School 2019–2020
    BULLETIN OF YALE UNIVERSITY BULLETIN OF YALE BULLETIN OF YALE UNIVERSITY Periodicals postage paid New Haven ct 06520-8227 New Haven, Connecticut Yale Law School 2019–2020 Yale Law School Yale 2019–2020 BULLETIN OF YALE UNIVERSITY Series 115 Number 11 August 10, 2019 BULLETIN OF YALE UNIVERSITY Series 115 Number 11 August 10, 2019 (USPS 078-500) The University is committed to basing judgments concerning the admission, education, is published seventeen times a year (one time in May and October; three times in June and employment of individuals upon their qualifications and abilities and a∞rmatively and September; four times in July; five times in August) by Yale University, 2 Whitney seeks to attract to its faculty, sta≠, and student body qualified persons of diverse Avenue, New Haven CT 06510. Periodicals postage paid at New Haven, Connecticut. backgrounds. In accordance with this policy and as delineated by federal and Connecticut law, Yale does not discriminate in admissions, educational programs, or employment Postmaster: Send address changes to Bulletin of Yale University, against any individual on account of that individual’s sex, race, color, religion, age, PO Box 208227, New Haven CT 06520-8227 disability, status as a protected veteran, or national or ethnic origin; nor does Yale discriminate on the basis of sexual orientation or gender identity or expression. Managing Editor: Kimberly M. Go≠-Crews University policy is committed to a∞rmative action under law in employment of Editor: Lesley K. Baier women, minority group members, individuals with disabilities, and protected veterans. PO Box 208230, New Haven CT 06520-8230 Inquiries concerning these policies may be referred to Valarie Stanley, Director of the O∞ce for Equal Opportunity Programs, 221 Whitney Avenue, 4th Floor, 203.432.0849.
    [Show full text]
  • Yale Law School 2006–2007
    ale university August 10, 2006 2007 – Number 8 2006 bulletin of y Series 1o2 Yale Law School Yale bulletin of yale university August 10, 2006 Yale Law School Periodicals postage paid New Haven, Connecticut 06520-8227 ct New Haven bulletin of yale university bulletin of yale Bulletin of Yale University The University is committed to basing judgments concerning the admission, education, and employment of individuals upon their qualifications and abilities and affirmatively Postmaster: Send address changes to Bulletin of Yale University, seeks to attract to its faculty, staff, and student body qualified persons of diverse back- PO Box 208227, New Haven ct 06520-8227 grounds. In accordance with this policy and as delineated by federal and Connecticut law, Yale does not discriminate in admissions, educational programs, or employment against PO Box 208230, New Haven ct 06520-8230 any individual on account of that individual’s sex, race, color, religion, age, disability, Periodicals postage paid at New Haven, Connecticut status as a special disabled veteran, veteran of the Vietnam era, or other covered veteran, or national or ethnic origin; nor does Yale discriminate on the basis of sexual orientation. Issued seventeen times a year: one time a year in May, November, and December; two University policy is committed to affirmative action under law in employment of times a year in June; three times a year in July and September; six times a year in August women, minority group members, individuals with disabilities, special disabled veterans, veterans of the Vietnam era, and other covered veterans. Managing Editor: Linda Koch Lorimer Inquiries concerning these policies may be referred to Valerie O.
    [Show full text]
  • The John M. Olin Fellowships and the Advancement of Conservatism in Legal Academia
    THE JOHN M. OLIN FELLOWSHIPS AND THE ADVANCEMENT OF CONSERVATISM IN LEGAL ACADEMIA “[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics.”1—F.A. Hayek INTRODUCTION In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven M. Teles stated, “It is still too early to tell whether the [John M.] Olin Fellows2 program has been effective, and in any case it is very difficult to disentangle the impact of the program from the influence of a changed le- gal culture or greater willingness of law schools to consider hir- ing conservatives.”3 The fellowship program, which provides conservatives or moderates interested in entering the legal academy with a one to two year, fully-funded position at a law school,4 is a joint venture of sorts between the Federalist Society and the John M. Olin Foundation, an organization better known in law schools for its advancement of law and econom- ics programs. Since 1997, the John M. Olin Fellowship has sought to encourage and assist conservatives and libertarians in becoming law professors.5 In investigating the theory that a changed legal culture at least partially explained the John M. Olin Fellows’ placement success- es in the academy, Professor Teles looked to Harvard Law School and cited then-Dean Elena Kagan’s hiring of three con- servatives to the law school faculty—Professors John F. Man- ning, Jack Goldsmith, and Adrian Vermeule.6 During her tenure, 1. F.A. Hayek, The Intellectuals and Socialism, in THE INTELLECTUALS: A CONTRO- VERSIAL PORTRAIT 371 (George B.
    [Show full text]
  • Featuring Essays by Constituting America's Guest Constitutional Scholars
    A 90 Day Study of a Constitutional Crisis – How Executive Overreach is Impeding Your Liberties and Undermining States’ Sovereignty: A Study on the Critical Erosion of Constitutional Checks and Balances April 6, 2015 – August 10, 2015 Featuring essays by Constituting America’s Guest Constitutional Scholars 2 Constitutional Crisis – How Executive Overreach is Impeding Your Liberties and Undermining States’ Sovereignty: A Study on the Critical Erosion of Constitutional Checks and Balances Constitutional Scholar Essayists Steven H. Aden, Senior Counsel, Alliance Defending Freedom Kristina Arriaga, Executive Director of the Becket Fund for Religious Liberty Daren Bakst, Research Fellow in Agricultural Policy, The Heritage Foundation; Attorney Logan Beirne, ISP Fellow and Lecturer in Law at Yale Law School and author of Blood of Tyrants: George Washington & the Forging of the Presidency James D. Best, Author of Tempest at Dawn, a novel about the 1787 Constitutional Convention; Principled Action, Lessons from the Origins of the American Republic The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives The Honorable Ted Cruz, U.S. Senator from Texas serving on Senate Judiciary Committee’s Subcommittee on the Constitution; Former Solicitor General of Texas, and a former Adjunct Professor of Law, teaching U.S. Supreme Court Litigation at the University of Texas School of Law; served as an Associate Deputy Attorney General at the U.S. Department of Justice, and as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court Cynthia Noland Dunbar, Vice President of Curriculum & Instruction at Global Educational Ventures, former Assistant Prof. of Law and Advisor to the Provost at Liberty University David Eastman, Former Captain, US Army; Co-founder, Tax Our Kids Catherine Engelbrecht, Founder, True the Vote Elliot Engstrom, Attorney with the Civitas Institute Center for Law and Freedom 3 Scot Faulkner, Served as Chief Administrative Officer of the U.S.
    [Show full text]
  • The Federalist Society
    2014 ANNUAL REPORT The Federalist Society Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law. The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative intellectual network that extends to all levels of the legal community. Letter from the President The Federalist Society enjoyed great success in 2014. This past year has seen intended the legislature to be the most powerful branch of government. In its the creation and launching of many new initiatives, as well as the achievement present form, most would say it is not.
    [Show full text]
  • Information Society Project Accomplishments
    Information Society Project Accomplishments 2015-2016 Yale Information Society Project 2015-2016 Table of Contents People .......................................................................................................... 2 Scholarship and Academic Presentations .................................................... 7 Conferences................................................................................................ 26 Activities ..................................................................................................... 89 Clinical Activities ...................................................................................... 112 Courses ..................................................................................................... 122 1 Information Society Project | Yale Law School People 2 Information Society Project | Yale Law School Information Society Project at Yale Law School 2015-2016 Directors, Staff, and Fellows Faculty Directors Jack M. Balkin, Director, Information Society Project and Knight Professor of Constitutional Law and the First Amendment Valerie Belair-Gagnon, Executive Director, Information Society Project and Research Scholar, Yale Law School Heather Branch, Program and Event Coordinator Natasha Mendez, Budget Manager Postdoctoral Resident Fellows Colin Agur Kate Klonick BJ Ard Adrian Kuenzler Sandra S. Baron Alyssa King Rebecca Crootof Asaf Lubin 3 Gerardo Condiaz Jonathan Manes Nicholas Frisch Tory McMurdo Information Society Project | Yale Law School Kerry Monroe Amanda
    [Show full text]
  • Judges, Prosecutors, and the Exercise of Discretion
    TH AL LAW JO RAL KATE STITH The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion ABSTRACT. Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional competitions for power: one between local federal prosecutors and officials in the Department of Justice in Washington ("Main Justice"), and the other between Congress and the Supreme Court. Congress's enactment of the Feeney Amendment in 2003, in reaction to sentencing data and decisions appearing to reveal that sentencing judges were willfully ignoring the Guidelines, represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to front-line federal prosecutors. By design, this legislation simultaneously empowered Main Justice, which was Congress's partner in the endeavor to achieve nationwide "compliance" with the Sentencing Guidelines. In its 2005 decision in United States v. Booker, the Supreme Court undid the Feeney Amendment, introduced the opportunity for judges openly to exercise judgment independent of the Guidelines, constrained the leverage that inheres in prosecutors in a mandatory sentencing regime, and counteracted the centralizing impulse of Main Justice. The Court's recent decisions elaborating Booker confirm that, once again, sentencing is to a significant extent a "local" event. The Sentencing Commission and Main Justice may still be calling signals but the decision makers on the playing field-judges and prosecutors - need not follow them. The pendulum of sentencing practice may increasingly swing back toward the exercise of informed discretion as newly appointed local decision makers are able to see beyond the narrow and arbitrary "frame" of the Federal Sentencing Guidelines.
    [Show full text]
  • Judges, Prosecutors, and the Exercise of Discretion Kate Stith Yale Law School
    Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship 2008 The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion Kate Stith Yale Law School Follow this and additional works at: https://digitalcommons.law.yale.edu/fss_papers Part of the Law Commons Recommended Citation Stith, Kate, "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion" (2008). Faculty Scholarship Series. 1285. https://digitalcommons.law.yale.edu/fss_papers/1285 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. TH AL LAW JO RAL KATE STITH The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion ABSTRACT. Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional competitions for power: one between local federal prosecutors and officials in the Department of Justice in Washington ("Main Justice"), and the other between Congress and the Supreme Court. Congress's enactment of the Feeney Amendment in 2003, in reaction to sentencing data and decisions appearing to reveal that sentencing judges were willfully ignoring the Guidelines, represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to front-line federal prosecutors.
    [Show full text]
  • Foreign State-Owned Companies (Socs), Particularly Those in the Energy Sector, Are More Powerful Than Ever Before
    A LEGAL REGIME FOR STATE-OWNED COMPANIES IN THE MODERN ERA PHILLIP RIBLETT∗ Foreign state-owned companies (SOCs), particularly those in the energy sector, are more powerful than ever before. Yet under the Foreign Sovereign Immunities Act of 1976 (FSIA), agencies and in- strumentalities—a category in which many SOCs fall—enjoy a pre- sumption of immunity. At the same time, however, pursuant to the U.S. Supreme Court’s 1983 decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba, in most cases the foreign state also enjoys the benefit of legal separateness—i.e., it is very dif- ficult for a third party to “pierce the corporate veil” between the so- vereign and its subsidiary. Thus, SOCs enjoy immunity (a principle applied to sovereigns) while their parent governments are not re- sponsible for the obligations of the SOCs (a principle more typically applied to traditional companies). In the author’s view, there is a significant underlying tension in such cases that gives one pause in an era of dominant SOCs. Over thirty years following the enactment of the FSIA, it is ap- propriate to re-examine the legal regime applicable to SOCs. In ad- dition to the issues outlined above, there is significant confusion in the courts with respect to when an SOC is considered an agency or instrumentality and thus is entitled to a presumption of immunity. This Article proposes amendments to the FSIA in order to provide a more predictable and just legal regime for application to SOCs. In particular, the proposed amendments would involve eliminating immunity for agencies and instrumentalities altogether and revis- ing the definition of foreign state to include specific types of entities, as well as other entities that engage in essentially public, non- commercial activity.
    [Show full text]
  • The Federalist Society for Law and Public Policy
    The Federalist Society for Law and Public Policy 2010 Annual Report Studies 2010 Annual Report “The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body.” The Federalist 78 THE FEDERALIST SOCIETY aw schools and the legal profession are currently strongly dominated by a L form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law. The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative intellectual network that extends to all levels of the legal community.
    [Show full text]