Thursday, June 01, 2006
Other Areas (includ plenary power)
We arw now in a discussion of other area topics. We are currently considering Lindsay Harrison's plenary power paper. 2006 Plenary Power - Harrison
posted by Gordon Stables at 6/01/2006 11:55:00 AM
¶ 
Comments:
<< Home
If you guys want me to put a list together of the key cases in each of the areas, I can probably get that done today.
So I went back to my paper to review the key cases that would be included. I think, given the desire for limits, the best resolution might be:
The United States Supreme Court should overrule one or more of its precedents which affirmed the plenary power of the Executive or Congress in one of the following areas: foreign affairs, immigration, or public lands.
By requiring the Aff to overrule a precedent that was based on plenary power, you have a built in limit. There are a pretty finite number of cases where the Sup Ct ruled on the basis of the plenary power doctrine. The key cases would be: The Chinese Exclusion Case, 130 U.S. 581 (1889) (immigration); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (foreign affairs), Knauff v. Shaughnessy, 338 U.S. 537 (1950) (familial rights of immigrants).
The United States Supreme Court should overrule one or more of its precedents which affirmed the plenary power of the Executive or Congress in one of the following areas: foreign affairs, immigration, or public lands.
By requiring the Aff to overrule a precedent that was based on plenary power, you have a built in limit. There are a pretty finite number of cases where the Sup Ct ruled on the basis of the plenary power doctrine. The key cases would be: The Chinese Exclusion Case, 130 U.S. 581 (1889) (immigration); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (foreign affairs), Knauff v. Shaughnessy, 338 U.S. 537 (1950) (familial rights of immigrants).
This one is even more limiting.
The United States Supreme Court should substantially limit the plenary power of the Executive or Congress by overruling one or more of its precedents which affirmed the plenary power of the Executive or Congress in one of the following areas: foreign affairs, immigration, or public lands.
The United States Supreme Court should substantially limit the plenary power of the Executive or Congress by overruling one or more of its precedents which affirmed the plenary power of the Executive or Congress in one of the following areas: foreign affairs, immigration, or public lands.
"Overrule plenary power precedent" is different from any limitation --
from 47 NYLSLR 395 (2003):
"The Supreme Court has recently been hesitant to utilize the doctrine of plenary power. This trend is evident in three recent Supreme Court decisions: INS v. St. Cyr, [FN45] Nguyen v. INS, [FN46] and finally, Zadvydas v. Davis. [FN47] These cases do not explicitly overrule plenary power precedents, but rather, render plenary power inapplicable where past courts would have applied it. [FN48]"
from 47 NYLSLR 395 (2003):
"The Supreme Court has recently been hesitant to utilize the doctrine of plenary power. This trend is evident in three recent Supreme Court decisions: INS v. St. Cyr, [FN45] Nguyen v. INS, [FN46] and finally, Zadvydas v. Davis. [FN47] These cases do not explicitly overrule plenary power precedents, but rather, render plenary power inapplicable where past courts would have applied it. [FN48]"
Quirin would also be a case, by the way.
I feel like I should say that the reason I have been pushing for this topic is that, post-9/11, plenary power and the horizontal separation of powers is *the* hot-button constitutional question among legal academics. Even if you end up doing a list of cases instead of an area topic, it should definitely include Curtiss-Wright or Quirin.
Post a Comment
I feel like I should say that the reason I have been pushing for this topic is that, post-9/11, plenary power and the horizontal separation of powers is *the* hot-button constitutional question among legal academics. Even if you end up doing a list of cases instead of an area topic, it should definitely include Curtiss-Wright or Quirin.
<< Home
