Bench Memos

NRO’s home for judicial news and analysis.

Biden’s Round 3


Windup takes about 4-1/2 minutes.

President’s war powers. Biden: Does President have authority to invade Iran tomorrow, w/o congressional approval and in the absence of any imminent threat? A: Unsettled.

Biden twice confuses John Yoo (former DOJ official and author of recent book on war powers) with “Ho”. Misstates A’s testimony.

Biden indicates that he thinks that “international law” is somehow binding on the President and Congress. And this is one of the Dems’ experts on foreign policy?? Let’s put that issue to the American people.

Stare decisis. Biden: No scholar says that a justice is required to follow precedent, right? A: Not an absolute requirement, but a presumption. Proper factors should be applied. Need special justification to revisit precedent.

Unitary executive. Biden: Discusses (and, I think, misstates) Scalia’s dissent in Morrison v. Olson. Are you with the majority or Scalia? Is FDA constitutional? A: I don’t know that there are removal restrictions on FDA Commissioner. (I don’t think there are; Biden picked a bad example.) Where there are removal restrictions, line of developed precedent applies.


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