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(Un)limited Executive Power

What procedures should channel the power exercised by the executive branch? In recent remarks, U.S. Attorney General Eric Holder defended the use of lethal force against American citizens abroad, noting that “the Constitution guarantees due process, not judicial process.” The New York Times summarizes Holder’s arguments, which seem to rely on his interpretations of Congressional action in the form of the Authorization to Use Military Force (Public Law 107-40).

In a very different context, a recent Ohio Supreme Court opinion analyzed whether a state agency fulfilled procedural requirements imposed by the Ohio Revised Code. In a 4-3 opinion, In re Application of Buckeye Wind, L.L.C., the Court upheld the Power Siting Board’s decision to authorize construction of a new wind farm, despite some security and environmental concerns. While Ohio’s administrative procedure laws expressly remove the public utilities commission from their requirements (per Ohio Rev. Code 119.01), special hearing requirements for the board can be found in the public utilities statutes. The Court found that the Board had “acted in accordance with all pertinent statutes and regulations,” following the procedure outlined by the Ohio Revised Code. For more on this opinion, see the Columbus Dispatch’s coverage.

For those interested in exploring executive power and what kinds of procedures should guide it, see Richard J. Pierce’s Administrative Law Treatise (available in the Moritz Law Library’s reserve room).