Boumediene and Fundamental Principles of Constitutional Power

12 Pages Posted: 11 Sep 2009

See all articles by Jordan J. Paust

Jordan J. Paust

University of Houston Law Center

Date Written: September 9, 2009

Abstract

This essay demonstrates that the Supreme Court’s decision in Boumediene has reaffirmed that Executive power is restrained by law and that judicial review of the propriety of executive detention of persons in time of war or some other national security crisis is an essential part of our constitutional process. Further, the extraterritorial reach of the Constitution places unavoidable limits on Executive power. In fact, in view of the constitutional design, it is a fundamental principle of our constitutional form of government that the Executive is “entirely a creature of the Constitution” and that “[i]t can only act [here or abroad] in accordance with all the limitations imposed by the Constitution.” Understandably, therefore, the Court has often reaffirmed the related principle that “[n]o man in this country is so high that he is above the law” and every known judicial opinion since the creation of the United States has affirmed that the President and all others within the Executive branch are bound by the laws of war.

Keywords: above the law, AUMF, Balzac, Boumediene, constitution, Downes v. Bidwell, executive, extraterritorial constitution, Guantanamo, habeas, law of war, Medellin, national security, Reid v. Covert, terrorism

Suggested Citation

Paust, Jordan J., Boumediene and Fundamental Principles of Constitutional Power (September 9, 2009). Regent University Law Review, Vol. 21, 2009; U of Houston Law Center No. 2009-A-22. Available at SSRN: https://ssrn.com/abstract=1470949

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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