John Yoo's Living Constitution -- Continued
In a post yesterday, I argued that The Difference Between Yoo and Me, on war powers, turns on fundamental differences of constitutional interpretive methodology.
I maintain that the original meaning of the Constitution is that Congress must authorize the use ...
Trump's First Unconstitutional War
After a too-long unexcused absence, I hope to return to intermittent blogging for Bench Memos. I cannot maintain the pace or intensity of Ed Whelan, the greatest legal blogger of all time. But I will join the fracas every now ...
The Case for Shrinking the Supreme Court
Senator John McCain made minor headlines this week by stating that a Republican Senate might well be justified in refusing to confirm any nomination that a president Hillary Clinton might make to the Supreme Court. The only problem with such ...
A Fine Time to Refine Klein
The Supreme Court hears arguments tomorrow in Bank Markazi, The Central Bank of Iran v. Peterson, involving a challenge to the constitutionality of section 502 of the “Iran Threat Reduction and Syria Human Rights Act of 2012” (codified at 22 U.S.C. §8772).
Senator Mike Lee’s Cross-Examination of John Koskinen
Underpublicized during the heat of summer, but important: Utah senator Mike Lee recently was able to get IRS commissioner John Koskinen to commit, publicly, on behalf of the Obama administration, that the IRS and the administration will not in its ...
Model Answer, Part 4: May the President Decline to Execute Judicial Decrees on Constitutional Grounds?
Concluding – finally! – the “model answer” to the judicial supremacy exam question I first presented here. (The previous chunks of my discussion are here, here, and here.)
(d) Is President Goodman, by virtue of the Court’s decision in United States ...
A Model Answer to the ‘Judicial Supremacy’ Test Question, Part 2
Picking up where I left off in my last post, with my “model answer” to an exam question asking about the duties of various constitutional officers to comply with a clearly wrong Supreme Court decision. (The original exam question, and ...
A ‘Judicial Supremacy’ Test Question
I’ve been out of touch for a few days – some would say that I’m out of touch every day – and am just now catching up on the excellent discussion, at various websites, of the question of “judicial supremacy”: ...
'Everything You Need to Know About Constitutional Law' (Part II – Completing the Ultra-Short Course)
The second installment of my light mini-review (and deconstruction) of “Constitutional Law” appears today at Public Discourse. The first installment was published yesterday.
Here’s the ultra-short version of this already-short course on Constitutional Law.
First off: There are several ...
Introducing The Constitution: An Introduction
When I joined Bench Memos this winter as an occasional blogger, it was in part with the thought that I might, in addition to regular substantive blogging, use this forum to introduce my new book, co-authored with my son, Luke ...
Treaties, Executive Agreements, and the Constitution: The 'Gang of Forty-Seven' Sends a Letter
Posted yesterday on NR’s main page is a short piece I co-wrote with Luke Paulsen (my son, and also my co-author on a forthcoming book entitled The Constitution: An Introduction, due out from Basic Books on May 5).
Our article, ...
Obama’s Dishonest De-Authorization of Use of Force Is Unconstitutional
Posted yesterday at Public Discourse is a short piece I wrote with Professor Robert P. George of Princeton University on the unconstitutionality of President Obama’s proposed (so-called) “Authorization for Use of Military Force” against ISIS.
Obama’s draft AUMF ...
How many times do we need to go over this?
Apparently, at least once more: The Supreme Court will conference on a certiorari petition in yet another round of Bronx Household of Faith v. Board of Education of the City ...
The six-month “interim” agreement between Iran and the U.S. and other nations on Iran’s further development of its nuclear capacity has now gone into effect. Many Americans of both political parties believe it is a bad deal — one ...
The Difference Between Yoo and Me
Last week, on the main page of the National Review website, I sharply criticized (on legal grounds) Trump’s First Unconstitutional War. Later in the week, my friend John Yoo responded with an essay arguing that Trump’s Syria Strike ...
Trump’s First Unconstitutional War
Make no mistake: President Trump’s airstrikes against Syria were unconstitutional.
Military action may well have been justified from a moral standpoint. The Assad regime’s war on its own people and its use of chemical weapons required a response, ...
Scalia at St Thomas: On Judicial Appointments Politics
I wrote a short piece for The Public Discourse, just posted, entitled “Scalia at St. Thomas: Closing Arguments.” Last fall, Justice Antonin Scalia visited the University of St. Thomas School of Law, where I teach, and had some extraordinarily interesting ...
What's 'Conservative' about the 'Roberts Court'?
The above is the title of my part of a panel presentation this next week, Thursday, November 12, at the Federalist Society’s National Lawyers’ Convention in Washington, D.C. (Mayflower Hotel.) The convention itself has the theme “The Role of ...
Eight Is Enough (Justices That Is): Let the Court Unpack Itself
Brace yourself. When Justice Ruth Bader Ginsburg retires from the Supreme Court this summer, it will set off a frenzy of Supreme contention: Who will President Obama nominate to replace Ginsburg? Will conservatives, reeling from the Court’s narrow 5-4 ...
‘Model Answer’ Part 3: May Juries Properly Disregard Erroneous Judicial Legal Instructions?
Continuing with the model answer I started here and here, to my “judicial supremacy” actual exam-question hypothetical:
(c) May juries legitimately defy judges’ instructions and independently interpret the Constitution? Or must they convict Whelan, if he did the seditious dirty ...
A Model Answer to the “Judicial Supremacy” Test Question, Part 1
In my last post I began wading, gently, back into the “judicial supremacy” debate. As a way to think about the discussion, I shared one of the questions on my exam for my undergraduate “American Constitutional History” course. Today, I’...
I Haven’t Been Unfaithful
But I was guest-blogging last week at The Volokh Conspiracy, at the invitation of my friend Eugene Volokh, to introduce some of the more controversial themes touched on in my co-authored new book (with Luke Paulsen).
For those who may ...
Everything You Need to Know about Constitutional Law (In Two Easy Lessons)
For a lighthearted, slightly cynical, but ultimately serious deconstruction (and attempted reconstruction) of the typical “Constitutional Law” law-school course, here’s a link to the first of a two-part series at Public Discourse. (I’ll post a link to Part ...
Posted at Public Discourse today is a short piece of mine commemorating — lamenting, really — the 25th anniversary today of what I call “Justice Scalia’s Worst Opinion” in his nearly 30 otherwise brilliant years on the Court: Employment Division v. Smith (1990).
Tom Cotton's Letter Was a Breach of Constitutional Decorum
Forty-seven Republican senators have sent an open letter to Iran explaining the U.S. Constitution’s allocations of power with respect to international agreements. The senators’ letter is on the whole descriptively accurate. It tells the mullahs, our negotiating allies, ...
Once More, With Feeling: The Puzzling Persistence of Overt Government Discrimination Against Religion
For those folks who turn first to Bench Memos, and not NRO generally: I wrote a short article, posted today to the NRO main page, under the title “Religious Freedom, Again: Why the Supreme Court should take up the Bronx ...
Friends and Enemies of Conscience and Its Enemies
Last week, Ed Whelan posted his observations concerning a personal-attack book review written by Professor James Oleske and published in the online Harvard Law Review Forum. The attack was directed at Princeton professor Robert P. George’s excellent and provocative ...