Revivified Executive Power

[Trevor Morrison]

Shameless plug:  I have a piece about to appear in the Columbia Law Review called "Constitutional Avoidance in the Executive Branch" which is probably not precisely what Bobby has in mind, but which does talk about some of these issues.  As the title suggests, the piece focuses on the executive's use of the canon of constitutional avoidance, a tool of statutory interpretation.  But uses of that canon obviously involve assertions of certain constitutional views as well.  Among other things, I talk about whether it is legitimate for the executive branch to use the avoidance canon so as to enhance executive power.  I argue that it is not categorically illegitimate to do so, but that we must be watchful for abuses of the canon in these areas.  I also talk more specifically about the role that the avoidance canon played in OLC's original torture memo, DOJ's defense of the NSA wiretapping program, and the President's signing statement for the McCain Amendment.  I find problems with each.
 
The article should be out in the next couple weeks.  A non-final version is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=923150.
 
 
Trevor Morrison
 
 
Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  http://ssrn.com/author=372569

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Fri 10/20/2006 8:32 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Revivified Executive Power


        Are there one or two brief articles tracing the Bush administration's attempt to revivify the constitutional power of the executive branch, including, of course, the cases arising from the war on terror, signing statements, and executive privilege?
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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