Private: Professor Neil Kinkopf on "The Statutory Commander in Chief"

Today, ACS distributed the latest in a series of law review articles emerging from an October 7, 2005 symposium and soon to be published by the Indiana Law Journal, addressing some controversial policies pursued by the Bush Administration in the name of national security. The symposium, titled "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century," was jointly sponsored by Indiana University School of Law-Bloomington and ACS, whose Constitution in the 21st Century project's Separation of Powers and Federalism Issue Group produced the symposium.

Professor Dawn E. Johnsen's "Foreword" frames the issues explored in this timely series, including warrantless domestic electronic surveillance; enemy combatant designations; extreme interrogation techniques; and military tribunals. The latest paper in the series is "The Statutory Commander in Chief," by Professor Neil Kinkopf of the Georgia State College of Law. Professor Kinkopf takes issue with "the emerging consensus" among leading legal academics (in particular the recent work of Curtis Bradley, Jack Goldsmith and Cass Sunstein), which Professor Kinkopf describes as a requirement of clear statutory statements of presidential authority in the case of most issues that implicate individual rights, but deference to presidential statutory interpretations where disputes center on questions of constitutional structure. With the reminder that the Framers designed the constitutional framework, including the separation of powers, to protect liberty, Professor Kinkopf flatly rejects the often-proffered rights/structure dichotomy as using inappropriate "loaded dice" that sometimes will over-protect and sometimes under-protect rights. He proposes looking instead to the specifics of the statute and controversy and seeking to effectuate all relevant constitutional values.