During the course of the War on Terrorism, members of the executive have drawn upon a variety of sources, including nineteenth and twentieth century wartime cases, to support expansive executive authority, including the authority to violate customary international law. This Note examines one of the nineteenth century wartime cases relied upon by the executive, Brown v. United States, and argues that the executive's reliance on this particular case is misplaced. Not only does Brown date back to an era when the Executive enjoyed far less power in international and military matters, contemporary members of the executive have relied upon a misinterpretation of the language in Brown, a misinterpretation that originated in the landmark case The Paquete Habana.
This Note analyses both the language of the Brown opinion as well as the background of its author, Chief Justice John Marshall, to argue that the Paquete Court misinterpreted Brown when it interpreted Brown as supporting the Executive's authority to violate customary international law. In fact, Brown stands for the opposite proposition: the Executive may not even exercise a right conveyed by customary international law without express legislative authorization.
Brown v. United States, the Paquete Habana, and the Executive,
60 Hastings L.J. 149
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