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That undermines the constitutional separation of powers, he said, by asking the judiciary to rubber-stamp the executive branch's interpretation of the law.
"There really is bad precedent in recent American history in the expansion of the executive branch's interpretation of the authority the president has, and I believe his conduct in Libya is instructive to us here," Mr. Rigell said.
Judge Rakoff said the agency settlement policy — "hallowed by history, but not by reason"— creates substantial potential for abuse because "it asks the court to employ its power and assert its authority when it does not know the facts". That undermines the constitutional separation of powers, he said, by asking the judiciary to rubber-stamp the executive branch's interpretation of the law.
Anderson: Given that the Immigration Act of 1990 was written almost 30 years ago, why do you think this is the right time to challenge the executive branch's interpretation of the law?
More recently, during a public hearing before the Senate Foreign Relations Committee in May 2014, I discussed at some length the Executive branch's interpretation of the 2001 AUMF and its application by the Department of Defense in armed conflict.
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But Congress has been too polarized and gridlocked to act, essentially acquiescing to the executive branch's interpretations of what the authorization covers.
The opinion was written by John C. Yoo of the Office of Legal Counsel, the executive branch's highest authority on the interpretation of the law.
"Certainly, the executive branch's policy is more restrained.
The report is expected to focus on three former officials of the Office of Legal Counsel, the Justice Department office that advises the executive branch on the interpretation of the law.
In a dissenting opinion, Justice John Paul Stevens said the regulation was a "manifestly reasonable" interpretation of the Clean Water Act and was therefore entitled to the deference the Court usually gives to executive branch agencies' interpretations of their statutory authority.
Both men worked in the Office of Legal Counsel, which provides the executive branch with binding legal interpretations on a wide array of matters; both played key roles in crafting or signing off on the so-called torture memos.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com