17 March 2016
Research in progress, Spring 2016
Originalism and the Constitutionality of Federal Land Management
The federal government derives its power over federal lands from three clauses in the Constitution: the Article I Enclave Clause; the Article IV New States Clause; and the Article IV Property Clause. Additionally, the Article II Treaty Clause has been used to justify the acquisition of new lands. This research focuses on exploring the original understanding of federal land ownership as seen through colonial land policies, debates during the drafting and ratification of the Constitution, 19th-century American land acquisition, and early Supreme Court decisions. Moreover, this paper seeks to examine whether the constitutional origins of power regarding federal lands are consistent with these historical events and developments. This paper concludes that the political doctrines in support of classic and protective property theories were live at least until the mid-1800s. However, these doctrines were undermined by the Civil War, the Reconstruction amendments, and the New Deal. In addition, federal land policies regarding the acquisition and disposition of land supported the protective property theory, until the withdrawal and reservation of lands began at the onset of the 20th century. A parallel development in the courts, beginning in 1840, provided support for both the protective and police power theories. And by the early 20th century, the police power theory was fully embraced. Ultimately, the historical evidence is mixed. Nevertheless, this evidence does demonstrate that the prescribed role for the federal government in regards to its constitutional authority over federal lands was not clear for a considerable time after the nation's founding.
All the Laws but One: Civil Liberties in National Emergencies
Former Chief Justice William Rehnquist’s book All the Laws but One is an account of the history of civil liberties during wartime and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, primarily focusing on cases involving the Civil War and World War II. On the other hand, events of the last few decades, including destructive hurricanes and tsunamis, outbreaks of infectious diseases, or threats of severe economic collapse, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through mandatory evacuations, mandatory vaccinations, arbitrary detentions, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these potential abuses threaten to make a mockery of the rule of law.
Is Cyber Deterrence an Effective Strategy?
In December 2015, the White House released its own long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny legal questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. This paper will examine the White House cyber deterrence policy from a historical and critical perspective, as well as address the impacts on international law. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.