presidents, war, and *statutes*: is there regularized restraint?

Scott Gerber s-gerber at onu.edu
Wed Dec 21 15:30:40 PST 2005


Prof. Holden poses an excellent question.  I think the answer turns on 
how much time passes between Time 1 and Time 2.  I mentioned the steel 
seizure case earlier today, but that Time 1 case was a long time ago.  
Bush's Time 2 behavior suggests he ignored the lessons of that Time 1 
case.

Scott Gerber
Law College 
Ohio Northern University


MatthewHPolSci at aol.com wrote:


>I do not choose to debate the lawyers on what they define as  "legal."  
 I 
>raise  a political science question.  I accept,  for the sake of 
discussion, the 
>Carl Friedrich standard of "constitutionalism"  as regularized 
restraint upon 
>the exercise of power?  (See  Constitutional Government and Democracy, 
>Boston: Ginn, 1951)
> 
>What is the normal pattern of judicial action that actually  checks, 
not 
>merely verbally "rebukes," the action of the Executive in these  
extreme cases?
> 
>Can anyone show, by the best evidentiary criteria in modern political  
>science (that would be followed by our colleagues in the Presidency 
Research  
>Group), that judicial decisions at Time 1 significantly limit what the 
Executive  
>does at some Time 2, when it sees a serious problem to be acted upon?
> 
>Regularization is worth attention because we may assume that virtually  
every 
>decision rule will be expanded, degraded, corrupted, and extended far  
beyond 
>the pristine examples used at first to justify it.
> 
>MH
>

--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/


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