Amy Coney Barrett’s “Suspension and Delegation”
In considering the nomination of Judge Amy Coney Barrett to the Supreme Court, many have sought to determine how a Justice Barrett would approach existing Supreme Court precedent. Several of then-Professor Barrett’s law review articles focused on stare decisis.
Comparatively little attention has been paid to her work on separation of powers. One paper in particular that has been somewhat overlooked is “Suspension and Delegation,” published in the Cornell Law Review in 2014. In this paper then-Professor Barrett considered Congress’s power to delegate to the President the authority to suspend the writ of habeas corpus. Barrett concluded that many such delegations have been unconstitutional, expressing a degree of skepticism of Presidential emergency powers that is unusual for a Republican judicial nominee—and in the context of national security no less! In the paper she writes:
Congress cannot pass any suspension statute until it concludes that an invasion or a rebellion exists and that the accompanying threat to public safety may require it. Only at that point may it capitalize upon the President’s ability to react quickly by ch
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