Congress’s War Powers and the Political Question Doctrine After Smith v. Obama

More than seventeen years after the attacks of September 11, 2001, the United States continues to battle terrorist organizations inspired by or derived from al Qaeda under the legal aegis of the 2001 Authorization for the Use of Military Force. The government has interpreted this law as providing expansive authority to conduct military operations against actors that did not even exist in 2001, including the Islamic State of Iraq and Syria (“ISIS”). Congress has largely supported this effort in annual authorizing legislation and by funding the campaign against ISIS. Despite this permissive legal environment, the government pressed for even greater flexibility in Smith v. Obama , a 2016 challenge to the legal basis for the anti-ISIS campaign, arguing that the war powers are subject to the political question doctrine and thus outside the purview of the courts. The district court accepted this argument, contravening recent Supreme Court decisions that narrow the doctrine’s scope. In doing so, the Smith court cast doubt on the primacy of Congress in bringing the United States into war. In response, this Note offers three insights. First, it assesses historical decisions in cases implicating executive branch war powers in light of the modern political question doctrine. Second, it critiques the Smith court’s failure to squarely confront the separation of powers questions presented by the case. Finally, it offers a series of recommendations for Congress and the courts to avoid the pitfalls of the political question doctrine in similar cases in the future

Voltage dependence of Hodgkin-Huxley rate functions for a multi-stage K channel voltage sensor within a membrane

The activation of a $K^+$ channel sensor in two sequential stages during a voltage clamp may be described as the translocation of a Brownian particle in an energy landscape with two large barriers between states. A solution of the Smoluchowski equation for a square-well approximation to the potential function of the S4 voltage sensor satisfies a master equation, and has two frequencies that may be determined from the forward and backward rate functions. When the higher frequency terms have small amplitude, the solution reduces to the relaxation of a rate equation, where the derived two-state rate functions are dependent on the relative magnitude of the forward rates ($\alpha$ and $\gamma$) and the backward rates ($\beta$ and $\delta$) for each stage. In particular, the voltage dependence of the Hodgkin-Huxley rate functions for a $K^+$ channel may be derived by assuming that the rate functions of the first stage are large relative to those of the second stage - $\alpha \gg \gamma$ and $\beta \gg \delta$. For a {\em Shaker} IR $K^+$ channel, the first forward and backward transitions are rate limiting ($\alpha < \gamma$ and $\delta \ll \beta$), and for an activation process with either two or three stages, the derived two-state rate functions also have a voltage dependence that is of a similar form to that determined for the squid axon. The potential variation generated by the interaction between a two-stage $K^+$ ion channel and a noninactivating $Na^+$ ion channel is determined by the master equation for $K^+$ ion channel activation and the ionic current equation when the $Na^+$ ion channel activation time is small, and if $\beta \ll \delta$ and $\alpha \ll \gamma$, the system may exhibit a small amplitude oscillation between spikes, or mixed-mode oscillation.Comment: 31 pages, 14 figure

Lost Lives: Miscarriages of Justice in Capital Cases

Gross discusses the incidence of erroneous convictions for capital murder, which are systematic consequences of the natuere of homicide prosection in general and capital prosecution in particular

Spending Clause Litigation in the Roberts Court

Throughout the Rehnquist Court\u27s so-called federalism revolution, as the Court cut back on federal power tinder Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress\u27s power tinder the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress\u27s exercise of the spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court\u27s cases. Rather, the Court is likely to act indirectly-through doctrines that skew the the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court\u27s restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy