Tuesday, October 17, 2017
Trump's ACA Sabotage and the President's Constitutional Duty to Take Care that the Laws be Faithfully Executed
Over at Vox, I offer an argument that Trump's ACA sabotage violates the Take Care Clause. I argue that, whatever scholarly divisions may exist about the Clause's application, this is the limiting case. The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it. An excerpt follows. Please click the link for the full argument.
Thursday, October 12, 2017
Voting With Their Feet
Gerard N. Magliocca
Advocates of states'-rights often point out that an advantage of federalism is that people can move from a state where they are dissatisfied with public policy to a state that they prefer. The prospect that people or businesses will relocate is often more effective at constraining majority opinion (say on tax rates or regulatory policy) than state constitutional provisions or internal political action.
Sunday, October 08, 2017
Not King Tut's Tomb, But . . .
Gerard N. Magliocca
(Cross-posted at Concurring Opinions)
Thursday, October 05, 2017
A Primer on the DACA Rescission
Tuesday, October 03, 2017
Our correction and apology to Professor Tillman
The Authority of the Court
The Justices of the Supreme Court are nine of the most powerful people on the face of the earth. Yet it seems to be their lot to be forever anxious that exercising their power might undermine it. Some Justices seem to fear—at least, in certain select sorts of cases, and more on that below—that they are still the weak third branch from 1789, hobbled by the lack of purse or sword. But the Court has since obtained a thing arguably at least as good: the widespread belief among Americans—an unusually legalistic and litigious bunch—that the Supreme Court stands for justice, fairness, the Constitution, and the rule of law. This widespread belief is precious and consequential. But, perhaps the public is fickle, or so the worry goes; perhaps this belief is something the Court could squander by straying out of its lane into matters that are too “political.” And so, on a day when the Court sits at a historic inflection point, with a big decision to make about whether to police partisan gerrymandering as a justiciable violation of the Constitution, some Justices are worried. As one Justice put it, “continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication”; this ought to lead us to view “with deep concern” a judicial intervention in how states draw their district lines.
Sunday, October 01, 2017
Getting the 25th Amendment on the Record
Gerard N. Magliocca
On Friday, HHS Secretary Tom Price was thrown to the tarmac. This means that there are now two Cabinet vacancies, as DHS has been without a head since General Kelly left to become White House Chief of Staff. Cabinet secretaries come and go from every Administration, of course, but there is one special aspect of these vacancies in the Trump Administration.
Saturday, September 30, 2017
The Enduring Significance of the Defeat of “Repeal and Replace”
Friday, September 29, 2017
Why the Court can't really solve the problem of fair representation
Great hopes are being placed by many that the Court will help to staunch the cancer on American democracy that is partisan gerrymandering. I certainly hope there are five Justices who agree that Wisconsin (and many other contemporary states) are acting unconstitutionally. But it is a mistake to believe that even your favorite opinion (whatever that might be) would truly alleviate the problems posed by the House of Representatives. It is doomed to be "unrepresentative" in many important ways so long as it remains within the stranglehold of the 1842 congressional act, reaffirmed in 1967, that requires single-member districts. What is needed, in all states with more than, say, six representatives, is multi-member districts with candidates elected on the basis of proportional voting. This would not only go far to eliminate the ravages of contemporary partisan gerrymandering, but would also assure, say, that Republicans in LA would be able to elect a representative, just as Democrats in West Texas would finally get some genuine representation.
More on Puerto Rico
As part of the blog about our new book, Fault Lines in the Constitution, my wife Cynthia and I have just posted a discussion about Puerto Rico. It doesn't add very much to Gerard's excellent post, save that we hope that at least some of our audience includes the teenagers to whom our book is directed and their teachers. I do suspect that this will be a decisive moment in the relationship between the US national government and what is now the world's largest remaining colony (defined by the absence of any voting representation in the metropolitan government, unlike, for example, the French territories). One can only imagine what would be happening if Puerto Rico, which is the same population roughly as Connecticut, had that state's two senators and five members of the House (not to mention seven electoral votes). I would think, at the very least, that events of the past week have weakened the attraction of Commonwealth status, and I will be curious, should this turn out to be the case, if the defectors support statehood or independence (or, of course, independence should a bigoted Congress reject statehood because the dominant language of Puerto Rico is Spanish. And, of course, it would be extremely interesting, to put it mildly, to see what the response of the US would be to a truly serious secessionist movement patterned after 1776.
The Supreme Court's New Term
Tuesday, September 26, 2017
Kudos to Michelle Goldberg on her joining the New York Times op-ed group
It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times. Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me. I confess I am very pleased about that. But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution. As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting." Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program. I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power. Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself. We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.
Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press