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In Copyright


The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and security by discretion is an important and long-standing jurisprudence of the United States Supreme Court, although it is rarely acknowledged as such and entangled with the more general law of separation of powers. In some separation of powers cases, however, where both political branches have a colorable textual and historical claim to exercise authority, it is the Court’s concern with preserving the rule of law or making room for necessary discretion that tilts the balance in favor of one branch or another. This Essay begins by examining an important nineteenth-century case, In re Neagle, and shows how Justices cleaved around the distinction between security by law and security by discretion. This Essay then describes a line of cases, beginning in the early republic, in which the Court was concerned with how government secures us. Finally, this Essay identifies cases when the Court shrunk from this role and explains why.

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Maryland Law Review Online

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