The Ryan “contretrumps” and the Separation of Powers

UNITED STATES - MAY 12 - House Speaker Paul Ryan speaks at a news conference following his meeting with Republican presidential candidate Donald Trump. (Photo By Al Drago/CQ Roll Call)

Now that Donald Trump is their presumptive nominee, elected officials within the Republican Party are faced with the difficult question of how they should respond. Some are saying it isn’t at all difficult—the people have spoken, by golly!—but I beg to differ. It’s a genuinely hard political question that ought to be framed by philosophical, institutional, and constitutional considerations.

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The Framers/Justices Conflation

Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes: Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and…

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Amtrak Sidetracked Again

Amtrak

Late last week, a panel of the D.C. Circuit dinged Amtrak for the second time.  The case (Association of American Railroads v. Department of Transportation) involves several constitutional questions regarding Amtrak’s funky set-up and operation. Herewith a few preliminary words on one of them: delegation and due process.

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The Not-So-Independent Judiciary

Lady Justice with Scale and Sword

The Constitution permits Congress to do amazing stuff to the independent judiciary. It can withhold jurisdiction, or yank jurisdiction that’s been given. It can change the law for pending cases. It can legislate for a “legitimate class of one.” But suppose Smith sues Jones in federal court and Congress enacts a law saying, “In Smith v. Jones [docket number], Smith wins.” Constitutional? An ancient, messy case, U.S. v. Klein (1872), seems to say “no.” After Wednesday’s decision in Bank Markazi v. Peterson,  the answer may be “yes.” I’ve written about the case before: The outcome is more depressing than I had apprehended.

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A Time for Congressional Hardball

American flag in front of US Capitol dome

The fundamental constitutional question presented by the case of United States v. Texas is not whether the President is constitutionally required to enforce immigration laws (he is), but whether the Supreme Court is constitutionally empowered to police every constitutional dispute. If it decides to do the work of Congress and restrain the executive, it will, more than it did in Cooper v. Aaron (1958), proclaim a doctrine of judicial supremacy over constitutional questions.

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Unorthodox Law

Sea of bureaucracy

I’m not in the habit of pumping other scholars’ stuff, least of all scholars with whom I often disagree and with whom I compete for ssrn rankings. I’ll cheerfully make an exception for Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po, on “Unorthodox Lawmaking, Unorthodox Rulemaking.”

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Congress Derailed: A Conversation with Christopher DeMuth

US Capitol Building, Washington DCChristopher DeMuth, the great conservative authority on regulatory policy, comes to Liberty Law Talk to discuss his recent work on the institutional decline of congress and how it can return to its place of constitutional prominence.

Living the New Constitutional Morality

Photo: Doug Mills/The New York Times

The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.

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Illiberal Democracies in Latin America

AFP PHOTO/Juan BARRETO

The 20th century ended amid well-founded optimism that Latin America had taken firm steps toward democracy, the rule of law, and respect for human rights. Only the island of Cuba seemed stuck in the era of military dictatorship and authoritarianism. But in the last 15 years, things have changed. Political violence has reappeared in many Latin countries and criminality is on the rise, with concomitant erosion of respect for individual rights.

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Executive Power in the Age of Obama

lawlessThis edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.