Modeling Terrorist Radicalization

Recent high-profile terrorism arrests and litigation in New York, Colorado, and Detroit have brought public attention to the question of how the government should respond to the possibility of domestic-origin terrorism linked to al Qaeda. This symposium essay identifies and discussing one emerging approach in the United States and Europe which attends to the process of terrorist “radicalization.” States on both sides of the Atlantic are investing increasingly in developing an epistemology of terrorist violence. The results have implications for how policing resources are allocated, whether privacy rights are respected, and how religious liberty may be exercised. This essay traces the development of state discourses on “radicalization” in the United States and the United Kingdom. It argues that understanding this new “radicalization” discourse entails attention to interactions between nations and between the federal government and states as well as to the political economy of counter-terrorism

The Institution Matching Canon

This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the institution matching canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of a do-over by a more appropriate component of government. First identified in an early written opinion of Justice John Paul Stevens, the institution matching canon continues to play an important if imperfectly articulated role in criminal law, administrative law, and national security doctrine. This Article provides a systematic survey of the ways that the Court has employed institution matching and develops a taxonomy of the canon\u27s costs and benefits

Removal as a Political Question

When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies\u27 organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, historical studies of state development, and comparative analyses of other countries\u27 civil services. Judicial intervention in agency design, I conclude, will not generate consistent and predictable outcomes and instead risks diluting majoritarian control and fostering policy uncertainty. In light of the tenuous correlation between changes in presidential removal power and the underlying constitutional good of democratic accountability, I argue, removal power questions should be ranked as “political questions” beyond federal court competence