Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Lawyer And The Law

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

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Explaining Trump’s Hostile Takeover

(Photo by Ricky Carioti/The Washington Post via Getty Images)

The outcome of the Republican nomination process is a disaster for the party. The person chosen clearly is unqualified to be President, and many of his views are not those that have dominated the party over the last generation. He is not a man who respects the Constitution and the limits it imposes on political power. He is against, not big government, but stupid government. And Donald Trump really thinks he is the remedy for stupidity we need.

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“Do You Realize Our Candidate Is Mental?”

syndrome

When Ted Cruz quit the presidential primary on Tuesday not long after the polls closed in Indiana, it was startling. Even Donald Trump, in his victory speech that night in New York, appeared startled to see himself the presumptive Republican nominee.

“Democrats seem to be bouncing back and forth between glee and panic,” wrote an analyst at fivethirtyeight.com. There are two main reasons for that.

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A Postmortem on Classical Liberalism in the 2016 Presidential Primary

United States Declaration of Independence on flag background

At the beginning of the campaign for the Republican nomination, many thought that it was a libertarian moment in which even Rand Paul might well emerge victorious. But with tonight’s results from Indiana, the Republican Party seems poised to nominate the most illiberal candidate in its history—someone who wants to restrict trade and civil liberties and has no interest in taming the growth of the state.

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Plutocrats Protected

plutocrats

Last summer, Jonathan Rauch, a senior fellow at the Brookings Institution, published a short e-book, Political Realism: How Hacks, Big Money, and Back-Room Deals Can Strengthen American Democracy. The over-the-top title notwithstanding, it made a concise, reasoned case against well-intentioned political reforms—including campaign-finance reform—that actually undermine rather than strengthen citizen participation in the republic. It is important to attract readers, so provocative titles certainly matter, and Rick Hasen makes his own attempt with Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. It is a dig at the Supreme Court’s 2010 opinion in Citizens United v. Federal…

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American by Nature

Naturalization

A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

What, exactly, does that mean?

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State of the (Angry) Union

Andrew Harrer/Bloomberg via Getty Images

Well, I agree with Donald Trump that the President’s big speech was boring and lethargic. That’s partly because there’s nothing more pathetic than a lame-duck President whose party doesn’t control Congress. He may talk big about executive orders and such, but he can’t help but project weakness and irrelevance. It’s true that the President is reduced to acting unconstitutionally, because the Constitution is no longer any President’s friend as his second term nears its end. Let me put forward the heretical thought that it would be better if he could run for reelection, and that constitutionally mandated term limits are counterproductive especially for Presidents. Now that I’ve made you angry, we can talk some about anger.

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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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Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

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Tea Party Game Show With Guest Host Cass Sunstein

Cass Sunstein recently published two short essays-here and here-on the current political struggles between “tea-party” conservatives and progressives. In the first essay, Sunstein attempts to link our current political fracturing with the famous standoff between Whittaker Chambers and Alger Hiss.  His second essay, which compares Whittaker Chambers and Ayn Rand’s divergent philosophies and then links their disagreements to various tendencies within present-day conservatism, is much better.

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