DOCSLIB.ORG

Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4 TALKING TRUMP AND THE TWENTY-FIFTH AMENDMENT: CORRECTING THE RECORD ON SECTION 4 Joel K. Goldstein* ABSTRACT The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4. TABLE OF CONTENTS INTRODUCTION ......................................................................................... 74 I. MEDIA DISCUSSIONS OF DECLARING PRESIDENT TRUMP DISABLED ......................................................................................... 79 II. SETTING THE RECORD STRAIGHT ...................................................... 87 A. The Central Role of the Presidential Inability Provisions ........................ 90 B. Section 4 and Mental Incapacity ........................................................ 98 C. The Scope of Section 4 ................................................................... 104 D. Who Decides? .............................................................................. 118 E. The Consequence of Section 4 .......................................................... 121 * Vincent C. Immel Professor of Law, Saint Louis University School of Law. I am grateful for extraordinarily helpful comments from Eric Berger, Roy E. Brownell, II, Monica Eppinger, John D. Feerick, Robert Gilbert, John Griesbach, John Rogan, Greg Willard, and Mike Wolff. I benefitted from the opportunity to discuss some of my ideas regarding the Twenty-fifth Amendment with participants in the Second Fordham University School of Law Clinic on Presidential Succession during 2016 and 2017, with participants in the Yale Law School Rule of Law Clinic in November 2017, at a Symposium on “Continuity in the Presidency: Gaps and Solutions” at Fordham Law School in September 2017, and at a faculty workshop at Saint Louis University School of Law in April 2018. I am responsible for any judgments and mistakes. 73 74 JOURNAL OF CONSTITUTIONAL LAW [Vol. 21:1 F. Can the President Reclaim Powers Immediately Upon His Declaration of Fitness? .................................................................................. 125 III. CONCLUSION .................................................................................... 149 INTRODUCTION It was anticipated that 2017 would bring attention to the Twenty-fifth Amendment to the Constitution. That provision, which addresses presidential succession and inability and filling vice-presidential vacancies, was ratified on February 10, 1967, which made 2017 its fiftieth anniversary. Golden jubilees invite retrospection. They present occasions to look back, to reflect on, sometimes to celebrate, past events, even those that generally receive little recognition, like obscure provisions of America’s Constitution. The Twenty-fifth’s fiftieth seemed likely to present an opportunity for a multi-purpose reflection—part nostalgia, part review of the legislative process and the people that produced the Amendment, part examination of the strengths and weaknesses of America’s provisions regarding presidential succession and inability, and part public education regarding the Amendment’s four sections and the constructive role three of them had already played in ensuring presidential continuity.1 Life has a way of upsetting plans, and it did in this instance. Political events transformed the anniversary. The Twenty-fifth Amendment received much, much greater media attention than anyone could have imagined, but most of the discussion occurred for unanticipated reasons and with an unforeseen focus. Instead of addressing the three sections that had handled succession or inability contingencies or reform ideas, public conversation targeted the Amendment’s Section 4, which provides for involuntarily separating a President from the powers and duties of his office.2 Section 4 1 See, e.g., Joel K. Goldstein, Celebrating the 50th of the 25th Amendment!, HUFFINGTON POST (Feb. 10, 2017, 3:31 PM), https://www.huffingtonpost.com/entry/celebrating-the-50th-of-the-25th- amendment_us_589e1bb7e4b080bf74f03bcc. 2 Section 4 reads as follows: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body Oct. 2018 TALKING TRUMP AND THE TWENTY-FIFTH AMENDMENT 75 will be discussed more specifically below but, in essence, it provides a means whereby the Vice President and a majority of the Cabinet (unless Congress replaces that group with a different body) can transfer presidential powers and duties (but not the presidency) to the Vice President upon finding that the President is unable to discharge them. Section 4 also contains provisions whereby the President can seek to reclaim his powers upon asserting that he is not disabled and his claim can be considered, initially by the Vice President and Cabinet, and, if they believe he remains disabled, by Congress, before he resumes power. What produced the recent preoccupation with Section 4 was neither an interest in exploring the Amendment’s past nor an effort to improve it for the future, but a belief that present circumstances dictated that the unused provision should now be put to use. This unforeseen development was due, of course, to recurring questions regarding whether President Donald J. Trump was “unable to discharge the powers and duties of his office,” the standard Section 4 sets for its use. Those concerns were aired even before his election and escalated during the first year of his presidency as scholars, legislators, and journalists used information age platforms to expound on whether Section 4 applied and, if so, whether it should be invoked. The unanticipated focus came at a cost. The preoccupation with the Amendment’s one unused portion distracted from recalling the contributions the other three parts have made and from considering remaining gaps in America’s provisions for ensuring presidential and governmental continuity. Section 1 had formalized the long-standing practice that the Vice President became President (not simply acting President) for the remainder of the term upon the death of the President and had extended that treatment to presidential resignations and removals following impeachment, situations involving permanent vacancies where the same logic applied.3 Section 2 as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. U.S. CONST. amend. XXV, § 4. Although Section 4 allows Congress to replace the “principal officers of the executive departments” (i.e., the Cabinet) with some “other body,” Congress has not done so and accordingly this Article will generally discuss Section 4 as involving the Vice President and the “principal officers” as the decision-makers. See infra Section II.D. 3 See Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency, 69 76 JOURNAL OF CONSTITUTIONAL LAW [Vol. 21:1 recognized
Load more

Recommended publications
  • Reflections on Murder, Misdemeanors, and Madison Jonathan Turley
    Hofstra Law Review Volume 28 | Issue 2 Article 6 1999 Reflections on Murder, Misdemeanors, and Madison Jonathan Turley Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Turley, Jonathan (1999) "Reflections on Murder, Misdemeanors, and Madison," Hofstra Law Review: Vol. 28: Iss. 2, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol28/iss2/6 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Turley: Reflections on Murder, Misdemeanors, and Madison REFLECTIONS ON MURDER, MISDEMEANORS, AND MADISON Jonathan Turley* I. INTRODUCTION Few crimes seem to concentrate the mind more than simple mur- der. Certainly, murder was on the minds of many of the academics testi- fying in the Clinton impeachment hearing While this offense was never seriously alleged during the scandal, it was very much a concern for academics advocating the "executive function theory. 2 Under this theory, a President could only be impeached for acts related to his of- fice, as opposed to purely personal acts.' Since the impeachment of President Clinton raised matters arguably related to his personal mis- conduct, various academics insisted that the allegations fell outside of * J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University of Law School. 1. See Background and History of Impeachment: Hearing Before the Subcomm. on the Constitutionof the House Comm.
    [Show full text]
  • USSYP 2013 Yearbook
    THE HEARST FOUNDATIONS DIRECTORS William Randolph Hearst III PRESIDENT James M. Asher Anissa B. Balson UNITED STATES SENATE YOUTH PROGRAM David J. Barrett Frank A. Bennack, Jr. John G. Conomikes Ronald J. Doerfl er Lisa H. Hagerman George R. Hearst III Gilbert C. Maurer Mark F. Miller Virginia H. Randt Steven R. Swartz Paul “Dino” Dinovitz EXECUTIVE DIRECTOR George B. Irish EASTERN DIRECTOR Rayne B. Guilford PROGRAM DIRECTOR FIFTY-FIRST ANNUAL WASHINGTON WEEK 2013 Lynn De Smet DEPUTY DIRECTOR Catherine Mahoney PROGRAM MANAGER Hayes Reisenfeld PROGRAM LIAISON UNITED STATES SENATE YOUTH PROGRAM FIFTY-FIRST ANNUAL WASHINGTON WEEK ! MARCH 9–16, 2013 SPONSORED BY THE UNITED STATES SENATE FUNDED AND ADMINISTERED BY THE THE HEARST FOUNDATIONS 90 NEW MONTGOMERY STREET ! SUITE 1212 ! SAN FRANCISCO, CA 94105"4504 WWW.USSENATEYOUTH.ORG Photography by Jakub Mosur Secondary Photography by Erin Lubin Design by Catalone Design Co. USSYP_31_Yearbook_COV_052313_cc.indd 1 5/29/13 4:04 PM Forget conventionalisms; forget what the world thinks of you stepping out of your place; think your best thoughts, speak your best words, work your best works, looking to your own conscience for approval. SUSAN B. ANTHONY USSYP_31_Yearbook_COV_052313_cc.indd 2 5/24/13 3:33 PM 2013 UNITED STATES SENATE YOUTH PROGRAM SENATE ADVISORY COMMITTEE HONORARY CO-CHAIRS VICE PRESIDENT SENATOR SENATOR JOSEPH R. BIDEN HARRY REID MITCH McCONNELL President of the Senate Majority Leader Republican Leader CO-CHAIRS SENATOR JEANNE SENATOR SHAHEEN RICHARD BURR of New Hampshire of North Carolina
    [Show full text]
  • Record of the Communications Policy & Research Forum 2009 in Its 2006 National Security Statement, George W
    TWITTER FREE IRAN: AN EVALUATION OF TWITTER’S ROLE IN PUBLIC DIPLOMACY AND INFORMATION OPERATIONS IN IRAN’S 2009 ELECTION CRISIS ALEX BURNS Faculty of Business and Law Victoria University [email protected] BEN ELTHAM Centre for Cultural Research University of Western Sydney and Fellow, Centre for Policy Development [email protected]) Abstract Social media platforms such as Twitter pose new challenges for decision-makers in an international crisis. We examine Twitter’s role during Iran’s 2009 election crisis using a comparative analysis of Twitter investors, US State Department diplomats, citizen activists and Iranian protestors and paramilitary forces. We code for key events during the election’s aftermath from 12 June to 5 August 2009, and evaluate Twitter. Foreign policy, international political economy and historical sociology frameworks provide a deeper context of how Twitter was used by different users for defensive information operations and public diplomacy. Those who believe Twitter and other social network technologies will enable ordinary people to seize power from repressive regimes should consider the fate of Iran’s protestors, some of whom paid for their enthusiastic adoption of Twitter with their lives. Keywords Twitter, foreign policy, international relations, United States, Iran, social networks 1. Research problem, study context and methods The next U.S. administration may well face an Iran again in turmoil. If so, we will be fortunate in not having an embassy in Tehran to worry about. From a safe distance, we can watch the Iranian people, again, fight for their freedom. We can pray that the clerical Gotterdamerung isn’t too bloody, and that the mullahs quickly retreat to their mosques and content themselves primarily with the joys of scholarly disputation.
    [Show full text]
  • The Thinness of Catholic Legal Education, a Review of Robert J
    Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2019 The Thinness of Catholic Legal Education, a Review of Robert J. Kaczorowski, Fordham University Law School: A History John M. Breen Lee J. Strang Follow this and additional works at: https://lawecommons.luc.edu/facpubs Part of the Legal Education Commons BOOK REVIEW THE THINNESS OF CATHOLIC LEGAL EDUCATION, A REVIEW OF ROBERT J. KACZOROWSKI, FORDHAM UNIVERSITY LAW SCHOOL: A HISTORY JOHN M. BREEN* & LEE J. STRANG* I. INTRODUCTION In his book, Fordham University Law School: A History,' Robert J. Kaczorowski has authored an informative history of Fordham Law School. This highly readable and well-researched volume describes the ups and downs, the triumphs and failures, and the key people and events at Fordham Law School, where the author has served as a faculty member since 1986. The overall story that Kaczorowski tells is one of an urban law school founded in 1905 to serve the professional aspirations of the children of New York's Catholic immigrants-a school that rose from modest beginnings to be among the nation's finest, but then languished in mediocrity for decades due to the syphoning off of revenues by University administrators. This period of unfulfilled potential came to an end in the 1990s, when Fordham Law School returned to elite status through a fairer allocation of resources, the creation of new programs and institutes, the admission of a highly quali- fied, national student body, and the hiring of a more scholarly and produc- tive faculty. Kaczorowski's history is also a welcome addition to the assortment of books that tell the particular histories of individual American law schools,2 in part because Fordham Law School is part of a Jesuit university, and the * Georgia Reithal Professor of Law, Loyola University Chicago School of Law.
    [Show full text]
  • Interrogation's Law
    THEYAEAW JOUNA WILLIAM RANNEY LEVI Interrogation's Law ABSTRACT. Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable. A U TH O R. Yale Law School, J.D. expected 2oo; Stanford University, B.A. 2006. Three individuals were central to the development of this project. Jack L. Goldsmith offered invaluable guidance from the beginning; I could not ask for a better mentor. Owen M. Fiss graciously supported this project, providing thoughtful comments and helpful criticism. Harold H. Koh consulted and advised throughout; I am immensely grateful for his encouragement. I am thankful to Mariano-Florentino Cullar, Jeremy M. Licht, Martin S. Lederman, David F. Levi, and Benjamin Wittes. This Note was completed before the Justice Department released four additional memoranda on April 16, 2009. 1434 NOTE CONTENTS INTRODUCTION 1436 1. THE LAW'S LATITUDE: SEPTEMBER 11, 2001 TO THE PRESENT 1442 A. Law and Interrogation: The Central Intelligence Agency 1443 1. The Torture Statute 1444 2. The Fifth Amendment 1448 3. Hamdan v. Rumsfeld and the Military Commissions Act 1452 B.
    [Show full text]
  • The Religious Right and the Rise of the Neo-Conservatives, in an Oral Examination Held on May 10, 2010
    AWKWARD ALLIES: THE RELIGIOUS RIGHT AND THE RISE OF THE NEO-CONSERVATIVES A Thesis Submitted to the Faculty of Graduate Studies and Research In Partial Fulfillment of the Requirements for the Degree of Master of Arts in Social and Political Thought University of Regina By Paul William Gaudette Regina, Saskatchewan July 2010 Copyright 2010: P.W. Gaudette Library and Archives Bibliotheque et Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-88548-2 Our file Notre reference ISBN: 978-0-494-88548-2 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distrbute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation.
    [Show full text]
  • The National Emergencies Act of 1976 Hearing Committee on the Judiciary House of Representatives
    THE NATIONAL EMERGENCIES ACT OF 1976 HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION FEBRUARY 28, 2019 Serial No. 116–5 Printed for the use of the Committee on the Judiciary ( Available http://judiciary.house.gov or www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–840 WASHINGTON : 2019 VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, SHEILA JACKSON LEE, Texas Ranking Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, JR., HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia Wisconsin THEODORE E. DEUTCH, Florida STEVE CHABOT, Ohio KAREN BASS, California LOUIE GOHMERT, Texas CEDRIC L. RICHMOND, Louisiana JIM JORDAN, Ohio HAKEEM S. JEFFRIES, New York KEN BUCK, Colorado DAVID N. CICILLINE, Rhode Island JOHN RATCLIFFE, Texas ERIC SWALWELL, California MARTHA ROBY, Alabama TED LIEU, California MATT GAETZ, Florida JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana PRAMILA JAYAPAL, Washington ANDY BIGGS, Arizona VAL BUTLER DEMINGS, Florida TOM MCCLINTOCK, California J. LUIS CORREA, California DEBBIE LESKO, Arizona MARY GAY SCANLON, Pennsylvania, GUY RESCHENTHALER, Pennsylvania Vice-Chair BEN CLINE, Virginia SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff Director & Chief Counsel BRENDAN BELAIR, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES STEVE COHEN, Tennessee, Chair JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, ERIC SWALWELL, California Ranking Member MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio SYLVIA R.
    [Show full text]
  • Twitter: Transparency and Accountability
    This is a preliminary, unedited transcript. The statements within may be inaccurate, incomplete, or misattributed to the speaker. A link to the final, official transcript will be posted on the Committee’s website as soon as it is available. 1 1 NEAL R. GROSS & CO., INC. 2 RPTS SAM WOJACK 3 HIF248000 4 5 6 TWITTER: TRANSPARENCY AND ACCOUNTABILITY 7 WEDNESDAY, SEPTEMBER 5, 2018 8 House of Representatives 9 Committee on Energy and Commerce 10 Washington, D.C. 11 12 13 14 The committee met, pursuant to call, at 1:30 p.m., in Room 15 2123 Rayburn House Office Building, Hon. Greg Walden [chairman 16 of the committee] presiding. 17 Members present: Representatives Walden, Barton, Upton, 18 Shimkus, Burgess, Scalise, Latta, McMorris Rodgers, Harper, 19 Lance, Guthrie, Olson, McKinley, Kinzinger, Griffith, Bilirakis, 20 Johnson, Long, Bucshon, Flores, Brooks, Mullin, Hudson, Collins, 21 Cramer, Walberg, Walters, Costello, Carter, Duncan, Pallone, 22 Rush, Engel, Green, DeGette, Doyle, Schakowsky, Butterfield, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com This is a preliminary, unedited transcript. The statements within may be inaccurate, incomplete, or misattributed to the speaker. A link to the final, official transcript will be posted on the Committee’s website as soon as it is available. 2 23 Matsui, Castor, Sarbanes, McNerney, Welch, Lujan, Tonko, Clarke, 24 Loebsack, Schrader, Kennedy, Cardenas, Ruiz, Peters, and Dingell. 25 26 Staff present: Jon Adame,
    [Show full text]
  • National Security and Statutory Interpretation
    SMU Law Review Volume 53 Issue 1 Article 9 2000 Through a Looking Glass Darkly: National Security and Statutory Interpretation Jonathan Turley Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Jonathan Turley, Through a Looking Glass Darkly: National Security and Statutory Interpretation, 53 SMU L. REV. 205 (2000) https://scholar.smu.edu/smulr/vol53/iss1/9 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THROUGH A LOOKING GLASS DARKLY: NATIONAL SECURITY AND STATUTORY INTERPRETATION Jonathan Turley* TABLE OF CONTENTS I. INTRODUCTION ........................................ 206 II. AREA 51: A CASE STUDY OF THE GRAVITATIONAL EFFECT OF THE COMMON LAW ON STATUTORY INTERPRETATION IN THE NATIONAL SECURITY AREA ......................... 210 A. FACTUAL BACKGROUND .............................. 210 B. RELEVANT LEGAL ARGUMENTS AND JUDICIAL R ULINGS .............................................. 214 C. THE GRAVITATIONAL EFFECT OF THE COMMON LAW PRIVILEGE ON THE ANALYSIS IN KASZA AND FRosT ................................................. 219 III. THE INTERPLAY OF STATUTORY INTERPRETATION AND THE COMMON LAW IN THE AREA 51 LITIGATION ............................ 221 A. THEORIES OF STATUTORY INTERPRETATION IN THE COMPANY OF THE COMMON LAW ..................... 222 B. PREEMPTION AND JUDICIAL CHOICE: THE USE OF COMMON LAW AS AN OUTCOME-DETERMINATIVE ELEMENT IN THE FROST CASE ........................ 228 C. THE ADOPTION OF AN ABSOLUTE STATE SECRETS PRIVILEGE IN THE AREA 51 LITIGATION .............. 231 IV. THE LEGISPRUDENCE OF NATIONAL SECURITY AND THE COMMON LAW ............................. 237 A. THE DIALOGIC EFFECT OF THE COMMON LAW IN THE AREA OF STATUTORY INTERPRETATION ..............
    [Show full text]
  • John Feerick: a Lawyer's Compass
    Fordham Law Review Volume 70 Issue 6 Article 15 2002 John Feerick: A Lawyer's Compass Benjamin C. Zipursky Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Benjamin C. Zipursky, John Feerick: A Lawyer's Compass, 70 Fordham L. Rev. 2203 (2002). Available at: https://ir.lawnet.fordham.edu/flr/vol70/iss6/15 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. John Feerick: A Lawyer's Compass Cover Page Footnote Professor & Associate Dean for Academic Affairs, Fordham University School of Law. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol70/iss6/15 JOHN FEERICK, A LAWYER'S COMPASS Benjamin C. Zipursky* It was my good fortune to join the administration of Fordham School of Law during John Feerick's tenure as Dean. The pleasure of working on a daily basis with John stands on equal footing with the value of watching, from the inside, an unusually successful and enduring example of compassionate and altruistic leadership. It is a small, but not insignificant consolation of John's stepping down that he is not stepping out; he will be joining us as a colleague, in the relatively relaxing role of Law Professor that he has long awaited.
    [Show full text]
  • A Tribute to the Fordham Judiciary: a Century of Service
    Fordham Law Review Volume 75 Issue 5 Article 1 2007 A Tribute to the Fordham Judiciary: A Century of Service Constantine N. Katsoris Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Constantine N. Katsoris, A Tribute to the Fordham Judiciary: A Century of Service, 75 Fordham L. Rev. 2303 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol75/iss5/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. A Tribute to the Fordham Judiciary: A Century of Service Cover Page Footnote * This article is dedicated to Justice Sandra Day O'Connor, the first woman appointed ot the U.S. Supreme Court. Although she is not a graduate of our school, she received an honorary Doctor of Laws degree from Fordham University in 1984 at the dedication ceremony celebrating the expansion of the Law School at Lincoln Center. Besides being a role model both on and off the bench, she has graciously participated and contributed to Fordham Law School in so many ways over the past three decades, including being the principal speaker at both the dedication of our new building in 1984, and again at our Millennium Celebration at Lincoln Center as we ushered in the twenty-first century, teaching a course in International Law and Relations as part of our summer program in Ireland, and participating in each of our annual alumni Supreme Court Admission Ceremonies since they began in 1986.
    [Show full text]
  • Michael Miller Partner
    Michael Miller Partner Michael W. Miller joined Kyle House Group in 2014 with Areas of Expertise more than two decades of senior-level experience in • Government government, private sector consulting, international • Foreign Affairs organizations, non-profits, and academia. He brings a deep, • Global Health and Development first-hand understanding of how government policy is • International Organizations made and how it affects clients’ missions, markets, and • Non-profits outcomes domestically and internationally. • African Affairs Experience Prior to joining KHG, Michael served as Republican Policy Director for the U.S. Senate Committee on Foreign • Senate Foreign Relations Committee Relations for Senator Bob Corker. This was his second • Department of Health and Human time serving on Capitol Hill: from 1995 to 2001, Michael Services • Duke University was Senator Bill Frist’s senior legislative aide for foreign affairs, where he managed the Senator's work on the Education Foreign Relations Committee and directed the Subcommittee on African Affairs. • B.A. with honors in Geography, Before returning to Capitol Hill, Michael founded and led a Washington, DC- and University of Tennessee Research Triangle, NC-based consulting firm that served a range of U.S. and • M.A. in Political Geography, international clients on government policy, global health and development, international University of South Carolina regulation, and international organizations. Since 2010, Michael has served an Adjunct Associate Professor of Global Health at Duke University. Contact • (e) [email protected] From 2001 to 2009, Michael served in several key policy positions in the Executive • (t) 202-785-5270 Branch and the White House. As a Senior Advisor in the office of the U.S.
    [Show full text]