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administrative law, civil rights law, constitutional law, environmental law, governments, healthcare law, labor employment law, military veterans law, and torts

INTRODUCTION When Congress passed the Federal Tort Claims Act ("FTCA") 1 in 1946 declaring certain federal employees exempt from liability for state common law torts committed within the scope of their employment, it provided the exclusive remedies and procedures plaintiffs must follow to bring a state-law tort action against a federal employee. The United States Supreme Court's interpretation of this immunity in 1988 2 prompted Congress to amend the FTCA later that same year. 3 This amendment extended the protection of the FTCA to "officers and employees" of the legislative branch. 4 The United States Constitution, through the Speech or Debate Clause, 5 already granted Congressmen immunity from questioning about "Speech or Debate in either House." 6 Despite the Speech or Debate Clause's grant of immunity to Congressmen, there remained a question of whether the FTCA applied to Congressmen. The controversy centered on whether the FTCA included Congressmen within the definition of "employee of the government." 7 In 1995, however, the United States Court of Appeals for the Fifth Circuit found that Congressmen were included in the FTCA's definition of "employee of the government," and, therefore, the FTCA provides Congressmen protection from state-law tort claims. 8 Subsequently, the Court of Appeals for the First Circuit, in Operation Rescue National v. United States , 9 reached the same conclusion as the Fifth Circuit. 10 The Operation Rescue court went on to note that other decisions and circumstances prevented the court from finding that the FTCA did not apply ...

criminal law procedure and tax law

Foreword In January 2005, while this Article was in the publication process, the Supreme Court decided United States v. Booker and United States v. Fanfan. 1 The Court held that the federal Sentencing Guidelines, as mandatory sentencing rules, do not comply with the Sixth Amendment right to trial by jury and directed that district courts apply them only as a discretionary source of advice for sentencing determination. 2 While the constitutional infirmity only affects those defendants whose sentences are enhanced by sentencing judges based on factual findings not found beyond a reasonable doubt by a jury, 3 the Court broadly applied its remedy to make the Guidelines "advisory," rather than mandatory, to all defendants. 4 Sentencing judges, nevertheless, "must consult" and "take ... account" of Guideline ranges when making sentencing determinations. 5 Regardless of the Court's holding, this Article provides a useful guide to Congress in any future effort to reconsider the Guidelines. Given the Court's explicit acknowledgement that "ours ... is not the last word: The ball now lies in Congress' court," it seems extremely likely that Booker will not be the final act in the Sentencing Guideline debate. 6 Policymakers will no doubt look to academic and other fora to inform their views on the best ways to craft the most effective sentencing system. Equally important, the ruling with respect to the Guidelines' constitutionality does not alter this Article's utility as an historical exposition on the substance and proper application of the Guidelines prior to ...

civil procedure, criminal law procedure, and evidence

I. Introduction Corporate scandals have become as ubiquitous as political scandals. In the wake of the Enron collapse and its progeny, Congress and the U.S. Securities and Exchange Commission ("SEC") took serious steps in an attempt to reinstill public confidence in corporation governance. 1 Not surprisingly, these steps have resulted in the uncovering of several new scandals. 2 Almost every governance scandal eventually results in both governmental investigations and civil litigation. 3 The narrow purpose of this Comment is to examine one doctrine that has an enormous impact on both the governmental investigations of, and civil litigation involving, corporations implicated in these scandals: selective waiver. 4 Selective waiver effectively is the waiver of legally privileged information with respect to a governmental agency while keeping the same information privileged in dealings with subsequent parties. 5 The following example from In re Qwest Communications International Inc. 6 demonstrates the multimillion dollar impact that selective waiver can have on a case. In 2002, the SEC and the U.S. Department of Justice ("DOJ") began investigating Qwest Communications' business practices. 7 Pursuant to negotiated, written confidentiality agreements between Qwest and both agencies, Qwest produced more than 220,000 pages of documents otherwise protected by the attorney-client privilege and the work-product doctrine. 8 These confidentiality agreements essentially "stated that Qwest did not intend to waive the attorney-client privilege or work-product protection." 9 Concurrent with the governmental investigations, the United States District Court for the District of Colorado consolidated several civil cases involving the ...

civil rights law, constitutional law, and governments

INTRODUCTION Faced with persistent efforts in several states to withdraw the electoral franchise from black Americans in violation of the Fifteenth Amendment, Congress passed the Voting Rights Act 1 (the "VRA") in 1965. Section 5 of the VRA, 2 --applicable to jurisdictions with particularly discriminatory records--requires those jurisdictions to obtain prior approval before any changes are made in any "voting qualification, prerequisite to voting, or standard, practice, or procedure." 3 Section 2 of the VRA--forming the basis of a vote dilution claim--allows minorities to challenge redistricting plans that divide blacks into multiple districts, thereby preventing black-majority representation in any one district. 4 Prior to the passage of the VRA, the extent of racially polarized voting patterns was such that minorities in these "gerrymandered" districts lacked any realistic opportunity to elect their chosen candidates. 5 Section 2 of the VRA paved the way for the establishment of voting districts comprised of predominantly black populations (hereinafter referred to as "majority-minority districts"). These districts have increased the likelihood that black voters could elect their chosen candidates into Congress and state legislatures. In 1990, blacks, while comprising 11.1% of the country's voting age population, accounted for merely 4.9% of the congressional delegation. 6 The 1990 congressional reapportionment increased the number of majority black and Hispanic districts from twenty-six to fifty-two, representing a 50% gain among black members of Congress. 7 Soon after this congressional reapportionment, however, a line of Supreme Court cases dramatically encroached upon these advances in ...

constitutional law, evidence, governments, and military veterans law

I. The State Secrets Problem Imagine that a United States citizen, in a case of mistaken identity, is arrested while walking down the street and sent off to a black site run by the Central Intelligence Agency ("CIA") in Afghanistan. The citizen is interrogated, given mind-altering drugs, and subjected to beatings, waterboarding, and other forms of torture or cruel, inhuman, and degrading treatment. Finally, the CIA determines that it has the wrong person, so the person is sent back to the United States and left at the spot where he was first picked up. What legal recourse does such a person have? The person's legal rights - constitutional and statutory - have been egregiously violated. Nevertheless, because of the state secrets privilege, there is little chance of securing any redress through the courts. The scenario set forth above is only barely hypothetical. Khaled El-Masri alleged essentially these facts in his lawsuit against the United States and various federal officials. 1 The district court dismissed El-Masri's lawsuit on state secrets grounds, and the Fourth Circuit affirmed. 2 The state secrets privilege is a common law evidentiary privilege that allows the government to withhold information, the disclosure of which would harm national security. 3 The modern articulation of the state secrets privilege is found in United States v. Reynolds. 4 Reynolds sets forth a three-part framework for assessing state secrets privilege claims. First, the claim must be made in a way that comports with procedural requirements; 5 second, the court ...

civil procedure, civil rights law, constitutional law, criminal law procedure, education law, governments, international trade law, and transportation law

INTRODUCTION Stare decisis, the doctrine under which courts rely on earlier judicial decisions as "authority" or "precedent" to decide later cases, serves at least three functions in Anglo-American systems of law. 1 First, following earlier court decisions promotes consistency and even-handedness; similar cases are similarly decided, regardless of the identities of the participants. 2 Second, the stare decisis approach enables individuals to anticipate how a court will decide a particular issue. 3 Such predictability facilitates settlements by litigators and allows individuals, corporations, and federal, state and local governments to tailor their conduct to comply with the law. 4 Finally, requiring judges to follow past precedent effectively limits the scope of discretion among judges, 5 who in the federal system are not elected officials. Restricting the discretion of jurists protects litigants from judicial prejudice, and the practice of applying a clear, applicable rule of law conserves valuable judicial resources. 6 However, our legal system often does not realize the goals of consistency, even-handedness and limiting the power of unelected officials when judges attempt to follow precedent that is contradictory or hinges upon ambiguous or malleable terms. During the sixty-year period beginning at the height of President Franklin D. Roosevelt's New Deal administration, the precedent guiding the Supreme Court in its Commerce Clause decisions fostered consistency, predictability, and deference by non-elected government officials to elected ones. 7 During this period, the Supreme Court deferred to the elected branches of government and upheld all of Congress' decisions to regulate pursuant ...

admiralty law, civil procedure, contracts law, estate, gift trust law, governments, international trade law, and labor employment law

I. Introduction Subsequent to a long tradition dedicated to freedom of contract and laissez-faire politics, Congress enacted the Fair Labor Standards Act (FLSA) as part of President Franklin Delano Roosevelt's New Deal package. 1 Through the FLSA, Congress sought to provide American workers with basic statutory rights by implementing minimum standards for employers to follow. 2 To ensure employer compliance, section 216 of the FLSA affords aggrieved employees a cause of action in U.S. district courts, and allows them to pursue claims either individually or as members of a collective action. 3 Within the past decade, the number of individual FLSA suits and collective actions has risen dramatically. 4 The rise in lawsuits has imposed significant costs on both large and small employers, who assume the expensive and onerous task of confronting employee allegations. 5 To soften the financial blow, many employers settle even frivolous claims to eliminate the public exposure and monetary costs that accompany lengthy litigation. 6 Other employers, hoping to proactively eliminate litigation-related expenses, include arbitration clauses and collective action waivers in their employment contracts. 7 The Federal Arbitration Act (FAA) governs the rules and policies surrounding arbitral procedure in the United States. 8 Those who drafted the FAA aimed to decrease judicial hostility toward arbitration, as well as provide those frequently engaged in business transactions with a forum for swift and inexpensive resolution of their commercial claims. 9 Since the FAA's enactment, labor advocates have contested the applicability of the ...

administrative law, constitutional law, and criminal law procedure

I. Introduction Congress and some of the judiciary are divided on child pornography sentencing. Since the late 1980s, Congress has consistently increased sentences and penalties for child pornography offenders. 1 Some federal judges disagree with this congressional policy and have departed downward from child pornography sentences in response. 2 Significant sentencing disparities have developed among similarly situated offenders, and the question is what effect these disparities will have on the child pornography Guidelines and the entire sentencing system. Judicially created sentencing disparities among similarly situated defendants have historically held great power to compel legislative reform in sentencing. With the Sentencing Reform Act of 1984, 3 Congress first sought to mitigate sentencing disparities that had developed as the result of broad judicial discretion in sentencing. 4 To curtail these disparities, the Sentencing Reform Act created the U.S. Sentencing Commission (Commission), which in turn created the Federal Sentencing Guidelines (Guidelines), a set of mandatory sentencing guidelines for federal judges to follow. 5 But the mandatory Guidelines failed to fully realize Congress's desired uniformity in sentencing, so Congress imposed additional restrictions on judicial discretion with the Feeney Amendment to the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act). 6 The Supreme Court then halted Congress's march toward limited judicial discretion in sentencing. In 2004, the Court decided United States v. Booker, 7 holding that the mandatory Guidelines were unconstitutional under the Sixth Amendment and ...

administrative law, banking law, civil procedure, civil rights law, constitutional law, criminal law procedure, governments, and transportation law

Thus a corporation may not be erected by congress, for superintending the police of the city of Philadelphia because they are not authorized to regulate the police of that city. 1 Introduction Even the most nationalist of the founders, Alexander Hamilton, probably would be surprised at the extent to which the federal government has consolidated power at the expense of the states, particularly in matters of police. Moreover, Hamilton would be amazed to learn that police departments, including those in Philadelphia, are voluntarily ceding police powers over their cities to federal law enforcement. 2 Unlike city police chiefs, 3 state officials generally oppose and local district attorneys oppose in principle, although not always in practice, the expansion of federal criminal law into matters that have traditionally been governed by state criminal law. 4 This opposition does not challenge Congress' power to regulate "commerce among the states," 5 but echoes the Supreme Court's statement in United States v. Lopez 6 that the Commerce Clause power does not include a general police power to define and punish all crimes. 7 Congress and the Justice Department, however, continue to act as if the federal government has virtually unlimited police powers. Presumably, they believe the decision to prohibit and prosecute crimes is merely a matter of legislative policy, not a question of constitutional dimensions. Nonetheless, the Chief Justice of the United States, 8 a task force of the American Bar Association, 9 and many law review articles have protested the trend ...

constitutional law, criminal law procedure, evidence, and international trade law

I. Introduction Built into the United States Constitution is "the Privilege of the Writ of Habeas Corpus," 1 a mechanism whereby a prisoner may challenge his conviction in federal court "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 2 Following direct review of a prisoner's claim, a federal court may exercise its habeas corpus power on collateral review, 3 offering the prisoner a final chance to appeal the constitutionality of his conviction. 4 The importance of maintaining this constitutional safeguard against wrongful conviction cannot be contested, although over recent years, concern for abuses of the writ has motivated both Congress and the courts to implement measures designed to curb such perceived exploitation. 5 In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA" or "the Act"), 6 which put in place statutory amendments to habeas corpus law and procedure. 7 AEDPA created waves in the legal community for its seemingly harsh restrictions on a prisoner's ability to obtain federal habeas relief. 8 Amidst AEDPA's effects on habeas law, a conflict emerged regarding the federal courts' role in reviewing whether an alleged constitutional error was harmless, thus requiring denial of relief. 9 Prior to AEDPA, Brecht v. Abrahamson 10 required federal habeas courts to analyze a constitutional error for harmlessness in terms of whether the error had a ""substantial and injurious effect or influence in determining the jury's verdict.'" 11 Since the ...

business corporate law, civil procedure, constitutional law, contracts law, criminal law procedure, governments, and labor employment law

I. Introduction Although the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission 1 has largely been characterized as a statement on corporate rights if not corporate personhood, 2 the decision (and even the dissent) explicitly disavows making any such statement. 3 Instead, the decision is framed as entirely one having to do with Congressional power to regulate speech - the speaker (in this case, the corporation) being irrelevant. 4 That said, the decision has raised the interesting normative question of what rights a corporation should possess. And the question is an important one for at least a couple of reasons, notwithstanding the limited grounds upon which Citizens United was explicitly decided. First, attacks upon Citizens United continue unabated, with various efforts underway or otherwise proposed for limiting or undoing the decision. 5 Some have, for example, suggested using state corporate law to reign in corporate political speech. 6 Although the U.S. Constitution might preclude Congress from restricting corporate speech, 7 it does not necessarily preclude state governments from amending corporate law in a way that effectively restricts the ability of entities incorporated within their jurisdiction from exercising this right. 8 Thus, the issue of what rights a corporation ought to have remains a lively and significant one. Second, "congressional power to regulate speech" and "corporate rights" are not hermetically sealed off from one another, notwithstanding how Citizens United has been framed and generally understood. A significant amount of overlap exists. Congress's power to ...

antitrust trade law, civil procedure, civil rights law, constitutional law, education law, family law, governments, labor employment law, and public health welfare law

I. Introduction The days when a disabled individual could sue a state for monetary damages under Title II of the Americans with Disabilities Act of 1990 ("ADA") 1 are numbered. The viability of such federal claims is diminishing as more courts recognize that Congress failed to properly abrogate the Eleventh Amendment immunity of the states when it enacted Title II. 2 Title II of the ADA protects disabled individuals from discrimination in public services, programs, and activities. 3 This Comment discusses whether Title II represents a valid exercise of Congress's constitutional powers. If it does not, the statute unconstitutionally authorizes the disabled to bring money damages suits in federal court against states for discrimination in public services. The United States Supreme Court has not directly addressed whether Title II validly abrogates the states' Eleventh Amendment immunity from private suit for money damages, 4 and the circuit courts of appeals that have addressed Title II are split with respect to this issue. 5 This Comment examines the constitutionality of Title II in light of the recent Supreme Court decision in Board of Trustees of the University of Alabama v. Garrett. 6 Although Garrett did not involve Title II, it held that Title I of the ADA fails to abrogate the Eleventh Amendment immunity of the states from private money damages suits. 7 Board of Trustees of the University of Alabama v. Garrett has potential implications for Title II because it is consistent with precedent reviewing legislation purporting to ...

civil procedure, evidence, and governments

I. INTRODUCTION It is neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of the statutes of the United States, nor conducive to a genuine effectuation of congressional intent, to give legislative force to each snippet of analysis, and even every case citation, in committee reports that are increasingly unreliable evidence of what the voting Members of Congress actually had in mind. 1 In February 2005, the 109th Congress succeeded where several predecessors had failed - it enacted the Class Action Fairness Act. 2 Congress began considering enacting a class action fairness act almost eight years earlier. 3 From that point, Congress continued to consider different forms of the act in each session until the 109th session; in each instance, however, despite favorable reports from the Senate Judiciary Committee, the bills either failed to obtain cloture or Congress took no further action. 4 Nonetheless, on February 3, 2005, the Senate Judiciary Committee reported favorably on the Class Action Fairness Act of 2005 ("CAFA"), 5 and CAFA took effect on February 18, 2005. 6 Congress enacted CAFA to ensure fairer outcomes for class action litigants and to enable federal court adjudication of matters of national importance. 7 Furthermore, the Senate Judiciary Committee observed that plaintiffs' lawyers were manipulating the federal jurisdiction system to ensure that their clients' cases remained in favorable state venues. 8 To resolve the abuses of the class action system and prevent plaintiffs' lawyers from influencing federal jurisdiction, CAFA substantially altered federal ...

antitrust trade law, civil procedure, constitutional law, governments, international trade law, patent law, and transportation law

Introduction The exclusive right to exclude others describes the right granted to inventors by Congress pursuant to Article 1 Section 8 of the United States Constitution. 1 In contrast, monopoly power and exclusionary conduct will together establish a violation of the Sherman Act. 2 While antitrust law proscribes exclusionary conduct when coupled with monopoly power, the patent laws expressly allow the holder of a patent monopoly to practice exclusionary conduct. To harmonize this apparent dissonance between patent and antitrust laws, courts and legal scholars have crafted various rationales. 3 The courts often view the two laws as inapposite, drawing a sharp line between lawful activities protected by the package of rights falling within the patent scope versus unlawful activities that violate antitrust laws. 4 Recently, the courts have modified their rationale and view antitrust and patent laws as complementary with the shared goal of enhancing consumer welfare by encouraging competition, innovation, and development of new products. 5 Under either rationale, the Courts of Appeals of the various circuits have held, without exception, that a patent holder who refuses to license or sell a patented item has not violated antitrust laws, but has merely exercised the statutory right to exclude others. 6 The United States Court of Appeals for the Federal Circuit ("Federal Circuit") and the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), however, have not reached a consensus on the resolution of a new clash between patent and antitrust laws. ...

education law and governments

Introduction In a series of decisions rendered in the late 1990s, the Supreme Court of the United States began to exhibit an increased respect for individual state sovereignty, particularly in social and cultural areas such as religion and education. 1 In the 1997 decision of Agostini v. Felton, 2 the Court overruled two twelve-year-old decisions 3 that barred states from sending public school teachers into parochial schools. 4 In a five-to-four ruling, the Court in Agostini held that a program, which funded remedial instruction and counseling of disadvantaged children in public and private schools, does not violate the Establishment Clause of the First Amendment. 5 Even more recently, the United States Supreme Court has redefined the federalism doctrine in a series of cases decided at the conclusion of its 1999 term. 6 This redefined federalism is exemplified in a trilogy of cases involving the sovereign immunity of the individual states from suit in federal court. 7 In Alden v. Maine, 8 for instance, the United States Supreme Court noted that the states "are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty." 9 Federalism, the court indicated, requires that Congress accord the states the respect and dignity owed to them as residuary sovereigns and joint participants in the nation's governance. 10 This renewed interest in state sovereignty by the United States Supreme Court comes two decades after states' highest courts throughout the country began reasserting ...

civil procedure, constitutional law, estate, gift trust law, evidence, governments, military veterans law, torts, and trade secrets law

Introduction In United States v. Reynolds, 1 the U.S. Supreme Court for the first time recognized - and established the contours of - what has since been known as the "state secrets privilege" (the "Privilege"). 2 As Reynolds established, the Privilege applies when there is a "reasonable danger" that production of evidence in litigation would result in the disclosure of secret information relevant to national security. 3 In such cases, the party from whom production is sought is not obligated to produce evidence or information protected by the Privilege. 4 The current litigation trend is for courts to dismiss cases before discovery based on the successful invocation of the Privilege. 5 Such an extreme remedy is uncalled for in almost all state secrets cases and simply cannot be reconciled with the Reynolds Court's understanding of the Privilege as being akin to that against self-incrimination. 6 In dismissing cases based on the successful invocation of the Privilege, courts have transformed the Privilege into a new and extraordinarily expansive doctrine of executive immunity 7 - which the government can also invoke to immunize nonstate actors that stand accused of violations of the statutory and constitutional rights of U.S. citizens or of the human rights of foreign nationals, purportedly in furtherance of U.S. foreign policy aims. 8 While Congress likely has the constitutional authority to regulate the Privilege, 9 it is unlikely to do so. On the other hand, although the courts have made a mess of the Privilege post-Reynolds, nothing ...

computer internet law, constitutional law, criminal law procedure, governments, immigration law, military veterans law, and securities law

Professor Vladeck's article addresses from an historical and constitutional perspective the question of whether Congress may indirectly grant to the President the authority to suspend the writ of habeas corpus by enacting legislation that permits the President to impose martial law. 1 Under this theory, even if the Constitution vests Congress, and not the President, with the sole authority to suspend the writ of habeas corpus, contingent legislation regarding martial law would be viewed as congressional action enabling the suspension of the writ of habeas corpus on the ground that the President can validly determine that habeas jurisdiction is inconsistent with a declaration of martial law. In an intriguing analysis, Professor Vladeck suggests that President Lincoln may have properly suspended habeas corpus in Baltimore in 1861, not for the reasons he gave at the time, but because he properly imposed martial law in Baltimore. 2 Ultimately, I reject that thesis on constitutional and prudential grounds. As I will explain, martial law is not always inconsistent with habeas corpus. Moreover, given the strong constitutional argument that only Congress can suspend the writ of habeas corpus, to permit the suspension by the President upon the imposition of martial law, without concurrent action by Congress, would present very grave dangers to civil liberties. To understand my position fully, it is first necessary to broaden the discussion of habeas corpus and the history of civil liberties in wartime in the United States. As an historical matter, in ...

civil rights law, constitutional law, criminal law procedure, family law, governments, healthcare law, immigration law, international law, international trade law, real property law, and torts

I. Introduction How can this be in modern day America? Mr. Enwonwu is an immigrant alien. ... Congress does not much care about immigrant aliens, even those who, after endangering themselves assisting our law enforcement efforts to stem the international drug trade, are deported into the hands of the very drug traders upon whom they have informed. Does this shock your conscience as an American? If so, read on and dispassionately judge for yourself 1 : In 1986, Frank Igwebuike Enwonwu accepted an offer from a Nigerian military official to smuggle five ounces of heroin into the United States in exchange for $ 5000. 2 U.S. Customs officials stopped and searched Enwonwu on his arrival at Logan International Airport in Boston and discovered the heroin concealed inside his body. 3 Drug Enforcement Agency ("DEA") agents promised Enwonwu that he could avoid prosecution and receive their protection if he helped the DEA find the intended recipients of the heroin. 4 Enwonwu agreed, and his efforts enabled the DEA to arrest three individuals who were awaiting the delivery of the drugs. 5 His testimony before a grand jury also helped federal prosecutors indict two of the individuals. 6 After the arrests, the DEA informed Enwonwu that his life was in danger because the people he betrayed were part of a large, violent drug-trafficking cartel. 7 At first, the DEA helped Enwonwu adjust to life in the United States by assisting him in obtaining a work authorization form. 8 For ...

constitutional law, governments, international law, international trade law, labor employment law, and military veterans law

I. Introduction Just when it seemed that Congress and the federal judiciary were going to let the executive branch have its way in the war on terror, the five-Justice majority in Hamdan v. Rumsfeld 1 announced that it will scrutinize executive conduct in that conflict for compliance with norms mandated by both Congress and international law. 2 The Court asserted its power to have some say in the debate over foreign affairs powers. It remains to be seen just how active a role the courts will play, thus reinvigorating a debate that was beginning to seem purely academic over the proper allocation of such powers under the U.S. Constitution. This Essay reviews two new books that take diametrically opposed positions. In his War Powers, 3 Peter Irons favors congressional initiative in the realm of war powers, while John Yoo's The Powers of War and Peace 4 favors deference to the executive on foreign affairs. The Hamdan decision is to be welcomed not because it resolves thorny questions regarding the foreign affairs power, but because it opens a debate that both Irons and Yoo would like to foreclose. As Justice Breyer put it: Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine - through democratic means - how best to do so. The Constitution places its faith in those democratic means. ...

constitutional law, criminal law procedure, governments, immigration law, international trade law, and public health welfare law

I. Introduction When the World Trade Center Twin Towers fell in 2001, the United States entered a period of what seems like perpetual crisis - a country increasingly threatened from within and outside its borders. 1 In the aftermath of 9/11, Arab Americans, as well as other foreign nationals, worried about their immigration status and the potential violence they might face and feared that they would be painted as enemies of the United States. 2 In law enforcement initiatives following the attacks, Arab American men were jailed, often for significant periods of time, on charges that were at best specious. 3 Likewise, enemy combatants in Guantanamo Bay have essentially been quarantined, cut off from the political body, so that their potential ideas and actions cannot harm those within the United States. 4 Such preemptive imprisonments are intended to contain any threat to the well-being of the United States. 5 We might understand such detentions as political quarantines. 6 It was of course in the wake of 9/11 that Congress created the Department of Homeland Security ("DHS"). 7 As its name implies, DHS's mission is to secure the delineated domestic space of the nation from dangers both internal and external. 8 In many ways the threat of terrorism from an unseen enemy, the fear and sense of crisis that it engenders, and the use of preventative quarantines are not new. Throughout the course of the nineteenth and twentieth centuries, the United States faced multiple epidemics of deadly diseases ...