The Georgetown Journal of Law & Public Policy

Publisher:: Georgetown University Law Center
Publication date:: 2022-07-01

Issue Number

No. 21-1, January 2023

Latest documents

The Founders' Declaration of War: The Declare War Clause and the Constitutionality of Undeclared War
The Constitution grants Congress the power to declare war. Although a plain reading of the Declare War Clause suggests that Congress has the exclusive power to initiate armed conflict, historical practice indicates otherwise. Congress has only declared war five times in American history and every American armed conflict since World War II was waged without a declaration of war. Opposition to the Vietnam War and the 2003 Iraq War raised concerns about unconstitutional wars. This Note examines whether the Founders would have considered it constitutional for the President to initiate military action absent a congressional declaration of war. Analyzing the theoretical and political foundations of the declaration of war reveals that the Founders believed war powers are shared between the executive and legislature. Yet, the geopolitical reality of the early United States influenced how the President exercised war power in practice. The Quasi-War with France set a precedent that the First Barbary War reinforced: the President can initiate armed conflict without a formal congressional declaration of war if force is used defensively, the conflict is limited, and Congress provides partial authorization
Climate Realism and a Positive Vision for American Energy
Everything that is grown, made, used, or moved needs energy. We want our energy to be affordable, available, secure, and sustainable. Twentieth century America is largely a story of achieving the first three qualities, and the last fifty years has been an attempt to achieve the fourth. To that end, climate idealists have presented data on the unsustainability of oil, gas, coal, and nuclear to justify climate and energy policies that categorically reject these disfavored forms of energy while subsidizing favored forms: wind, solar, and batteries. But climate idealists have failed to appreciate the full benefits of fossil fuels: how fossil fuels have been critical to powering industry, producing modern materials, and securing the United States' geopolitical position. At the same time, they exaggerate the unsustainability of fossil fuels, ignoring the strides we have already made in pollution reduction and conflating the reality of climate change with evidence of an imminent apocalypse. Such an approach is myopic and thus fails to see the costs of the energy transition, not just to the affordability of energy, but to its availability, security, and even sustainability. This article argues that technological prescriptivism is not the most efficient way to accomplish our energy or climate goals. The United States' greatest climate successes have come from setting aggressive goals and allowing them to be reached through technology-neutral and market-based means. Our energy policy should focus on setting realistic goals for energy availability, security, and sustainability and allow American ingenuity to find the most affordable path forward. In this way, the United States can reduce global greenhouse gas emissions while providing for American workers and families. Four pillars support a positive and realistic energy policy. The first is setting availability, security, and sustainability objectives directly rather than with prescriptive command-and-control regulation or subsidization of specific technologies. The second is lowering other regulatory barriers to speed new development of next-generation energy technology. The third is modernizing other non-carbon emission regulations to account for the changing technological and increasingly international landscape. The fourth is investing directly in the protection and improvement of our domestic natural resources. This positive approach will give America and Americans the energy needed to build a better, more sustainable future
Representing the Nation: Gouverneur Morris's Nationalist Constitutionalism
Letter from the Editor
The Roberts Court and Compulsory Collective Bargaining: Reading the Tea Leaves after Janus
The Roberts Court has become strident in its defense of the First Amendment. If litigants can manage to frame an issue as a government infringement on their right(s) to speech, expression, or free exercise of religion, they are likely to succeed in attracting the Court's scrutiny. As most first-year law students can tell you, the determination of the level of scrutiny the Court will place on the government will often determine whether the regulation in question will be permitted to stand. With that in mind, the way Justice Alito framed the issue of collective bargaining in his majority opinion in Janus bears watching for what it could mean for the future of compulsory collective bargaining
The Strength of a Giant: The Administrative State and the United States Patent & Trademark Office
For Appointments Clause purposes, the Supreme Court historically has refused to draw a bright line between a "principal officer" and an "inferior officer." The vague separation between the officer ranks has caused lower courts and administrative law scholars to apply inconsistent standards in determining whether an officer is a principal or inferior. Recently, however, United States v. Arthrex adopted a bright line rule for distinguishing between officers that need to go through the formal constitutional process for appointment and officers that do not. This Essay argues that the Arthrex decision unduly burdens both the Senate and the Executive by imposing a rigid, unforgiving standard for addressing the principal-inferior officer distinction which implicitly overruled binding precedent. An examination of the Appointments Clause through a textualist, a purposivist, and an originalist lens suggests that the Supreme Court's historic jurisprudence in the area adequately addresses the accountability, transparency, and authority concerns inherent in the appointments procedures
Roe and the Original Meaning of the Thirteenth Amendment
Eighth Annual Salmon P. Chase Lecture. Gouverneur Morris and the Drafting of the Federalist Constitution
A Great Statesman: Reclaiming Gouverneur Morris
An Unqualified Defense of Qualified Immunity
This Note argues that, rather than being eliminated, qualified immunity should be strengthened in the face of a nationwide increase in violent crime and collapsing police staffing. This paper first examines efforts to repeal qualified immunity in Congress as well as recently enacted statutes designed to circumvent it in New Mexico, Colorado, and New York City. It then responds to two common critiques of qualified immunity. Qualified immunity is much weaker than is commonly believed, as fewer than four percent of civil rights lawsuits are dismissed on qualified immunity grounds, and textualist critiques about qualified immunity are inherently selective. The paper then explains why eliminating qualified immunity is unjust: it leaves police officers liable even in cases where a damages award does nothing to deter misconduct and imposes legal costs on defendants which frequently exceed any damages. Finally, this paper addresses the policy rationale for qualified immunity by examining previously unpublished law enforcement employment data from Colorado, where qualified immunity was circumvented in June 2020. This evidence suggests that ending qualified immunity will contribute to rising crime as officers pull back from proactive policing or leave the profession. The paper concludes by endorsing a version of the good faith test for qualified immunity which could prevent it from becoming a total nullity