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

Scott Gerber s-gerber at
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 

Scott Gerber
Law College 
Ohio Northern University

MatthewHPolSci at wrote:

>I do not choose to debate the lawyers on what they define as  "legal."  
>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, 
>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 
>Group), that judicial decisions at Time 1 significantly limit what the 
>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  
>decision rule will be expanded, degraded, corrupted, and extended far  
>the pristine examples used at first to justify it.


Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810

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