Energy in the Executive

A section of the Trans-Alaska oil pipeline

Donald Trump’s extraordinary election has upended established expectations for the political agenda in every area, and nowhere is that more true than with climate and energy policy. Where will Trump and his team come down on climate? There is fevered speculation across the spectrum, with predictions ranging from Armageddon to salvation, but the truth is that no one knows how things will shake out in the end—perhaps not even the President-elect.

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The Constitutionalism of Crony Capitalism

A Carrier production line

As bad as the economics of the Carrier shakedown may be—and it is entirely unclear in which direction the shaking went down, except to note that a supply of rents tends to create a demand for them—the constitutional politics are far worse.

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Mad Dog Mattis, the 7 Year Delay Provision, and the Appointments Clause

President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense.  However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.”  While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional.  The main issue is whether the Constitution (1) allows the Congress to establish qualifications for offices or (2) gives to the President and the Senate the full…

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The Matchmaker in Brussels

European union flag against parliament in Brussels

Thwarted elites are not good losers. They will resort to any maneuver to ensure that their opinions prevail—which is why I believe that Brexit is by no means a certainty, notwithstanding the recent referendum.

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Trump versus The Bureaucracy

After President-Elect Trump announced that he would separate himself from his business, the tweeter feed of the Office of Government Ethics (OGE) went berserk. It praised Trump for agreeing to divest himself of the ownership of his companies, a position which he had not announced.   OGE’s multiple twitter comments were often sarcastic, ending with exclamation points obviously intended to mock Trump’s own style.

To say that these comments were inappropriate is an understatement.  OGE lacks jurisdiction over Trump because the President and Vice-President are not covered by the conflict of interest rules on which OGE advises. And OGE helps presidential appointees with conflicts problems confidentially, reserving twitter for announcing new rules. Unless the director of OGE can get control of his agency, he should resign.

But OGE’s actions show what may be in store for the Trump administration from the federal bureaucracy: not only hostility but contempt. There are three problems President Trump faces.  One confronts any Republican President: the bureaucracy leans left.  Indeed, the average bureaucrat is not only more left-wing than the median Republican but also the median Democrat.

But Trump faces two additional problems.

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The Crisis of American Conservatism: A Conversation with George Nash

NEW YORK, NY - NOVEMBER 08:   (Photo by Spencer Platt/Getty Images)The great historian of American conservatism, George Nash, returns to Liberty Law Talk to discuss the current state of conservatism after the improbable victory of Donald Trump.

The Falsifiable Justice Kennedy


The Green Bag’s most recent Micro-Symposium is worth checking out.

My favorite piece is Jonathan Mermin’s “On the Importance of Headings and Subheadings in Judicial Opinions.” It exhibits the mixture of whimsy, substance, and law-nerdiness characteristic of great Green Bag writing.

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Electors, Americans, Countrymen, Lend Me Your Ears

Members of the U.S. Senate escort the Electoral College ballots through Statuary Hall on their way to the House Chamber in the U.S. Capitol, January 8, 2009. (Photo by Chip Somodevilla/Getty Images)

On Monday, December 19, electors across America will be called upon to do their solemn duty of casting votes to choose the next President and Vice President of the United States, gathering in the capitals of all 50 states and in the District of Columbia. Together these electors, 538 in all, constitute the Electoral College, and it is their votes—to be officially tallied by Congress in January—that determine who will be inaugurated to the presidency and vice presidency on January 20. The electors themselves were chosen by popular election in the states on November 8, running as pledged to vote for one or another slate of candidates. If all the electors vote as pledged, and assuming that recounts do not disturb the current tallies, Mr. Trump and Mr. Pence will defeat Mrs. Clinton and Mr. Kaine by a vote of 306 to 232.

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Introducing Kevin Walsh as December Guest Blogger

I am happy to introduce to you Kevin C. Walsh as our guest blogger this month. I am delighted that he will be lending his considerable insights to us for the month of December. Mr. Walsh professes law in Richmond, Virginia at the University of Richmond School of Law. His scholarship focuses on doctrines that define the scope of the judicial power. His latest law review article is Enduring Originalism, co-authored with Jeffrey Pojanowski. Walsh blogs at Mirror of Justice and Law-RVA, and can be found on Twitter @kevincwalsh.​

What Can Happen in a Month

I took a break from blogging a month ago, and the world has changed tremendously.  Wow. When I left, nearly everyone thought Hillary Clinton would be the President.  The odds were also favorable that there would be a Democratic Senate. Now, of course, Donald Trump will be the President, and the Republicans control not only the House but also the Senate.  This is obviously an enormous change.  At first, it was really disorienting.  And for many opponents of Trump, the effect continues. But there has also been another change.  We have started to get more information about Donald Trump and how he is…

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