One of the conlawprofs, SL, wrote:
"In preparing for a seminar yesterday ...a very naive (but genuine) question occurred to me:..."
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I responded:
That's an example of one very good way to think about Con-law, if I may say so.
Years ago as a 2L I had a professor, Chuck Ayres, who, I didn't know until reading the recent biography ("Wild Bill") of Justice Douglas, was listed as among his law clerks, before teaching. Prof. Ayres had found me a job with the Vera Foundation and we were talking about the NYPD one day. I described a practice whereby the police padlocked the doors of troublesome bars and posted a "Raided Premises" notice on the door.
"Can they DO that?" he asked. "Is that constitutional?"
Until he asked that, I hadn't got constitutional law, although I'd had the class. Later the practice, as I recall, was declared unconstitutional, something about the need for a due process hearing in advance of closing a business, etc.
The more naive-seeming the question, the more sophisticated, it seems.
Perhaps it takes a sophisticated person to ask a naive-seeming question.
rs
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The full SL query:
"In preparing for a seminar yesterday (on "emergency powers") and reading the DOJ's January memorandum defending the NSA surveillance on "commander-in-chief" grounds (among other arguments), a very naive (but genuine) question occurred to me: How is it that the CinC power extends to non-military agencies. I can readily understand the argument that Congress can't interfere with a range of presidential decisions involving deployment of the military (but see Article I, Sec. 8 with regard to Congress's power to make "rules and regulations"), but why, exactly, do the CIA and NSA come under the CinC power? If they are brought under it, then is there ANY executive agency that the President can't "comandeer' so long as there is some minimally rational connection between the agency and prosecution of a military campaign? I'm not an originalist, but I am curious whether anyone in 1787 assumed that the "military" would include civilians over whom the President would exercise CinC authority?"
s
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I've always remembered the informal exchange with Prof. Ayres because it flipped a switch in my mind and the light suddenly came on: "Oh, so THIS is what it means to think like a lawyer! NOW, I've got it. You've got to know to ask that question," which had never occurred to me before despite reading news accounts of "Raided Premises" since I'd been able to read a newspaper.