Articles Posted in Constitutional Law

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the legal and ethical implications of recent executive orders from the White House targeting law firms for their past work opposing the administration, and they discuss the resulting fragmentation within the legal profession over how to respond. Professors Amar and Mazzone argue that while individual law firms may face practical incentives to capitulate, coordinated resistance would be both more effective and legally protected under the First Amendment based on analogous Supreme Court precedents on collective political action and petitioning the government.

In this second of a two-part series, Illinois Law professors Lesley M. Wexler and Anthony Ghiotto examine the broader implications of the Trump administration’s attempt to ban transgender individuals from military service, focusing on the chilling effects on service members’ mental health care and how recent litigation (specifically Talbott and Shilling) may shape future legal challenges to executive control over the military. Professors Wexler and Ghiotto argue that the administration's policy undermines trust in mental health confidentiality and threatens military readiness, while also suggesting that recent court decisions could provide a legal framework for challenging discriminatory or overreaching uses of military power in the future.

Illinois Law professors Lesley M. Wexler and Anthony Ghiotto examine recent judicial rulings halting the enforcement of a Trump administration executive order banning transgender individuals from military service, focusing on the Department of Defense’s justification efforts and the constitutional Equal Protection challenges in Talbott v. Trump and Shilling v. United States. Professors Wexler and Ghiotto argue that the administration failed to provide evidence-based, reasoned justifications necessary for judicial deference, highlighting a broader pattern of executive overreach and attempts to discredit the judiciary rather than engage in the fact-based policy-making required to lawfully exclude transgender service members.

Cornell Law professor Michael C. Dorf examines recent calls by President Donald Trump, Speaker Mike Johnson, and their allies in Congress to remove or sideline federal judges who have blocked Trump administration policies, either through impeachment or by eliminating the courts themselves. Professor Dorf argues that such tactics are constitutionally dubious and dangerously undermine judicial independence, warning that the real threat to the republic comes not from the judges, but from efforts to evade legal checks on presidential power.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone address the Fifth Circuit’s refusal to rehear a case challenging a Mississippi law allowing mail-in ballots postmarked by Election Day to be counted if received within five business days. Professors Amar and Mazzone explore the broader implications of that decision—especially in light of a recent Executive Order by President Donald Trump that adopts a strict interpretation of federal “Election Day” laws. The authors argue the Fifth Circuit’s reasoning is flawed, that longstanding state practices allowing some flexibility in ballot receipt are legally and constitutionally sound, and that both the court’s ruling and the Executive Order reflect an overly rigid and potentially partisan approach that should ultimately be reviewed and corrected by the U.S. Supreme Court.

Cornell Law professor Michael C. Dorf examines the Trump administration’s apparent disregard for judicial authority, focusing on its defiance of a court order prohibiting the use of the Alien Enemies Act for deportations and its broader pattern of legal manipulation. Professor Dorf argues that even if technical compliance with court rulings is maintained, the administration’s deceptive tactics and overt hostility toward judicial oversight severely undermine the rule of law and pose a grave threat to American constitutional democracy.

University of Toronto visiting law professor and economist Neil H. Buchanan discusses Senate Majority Leader Chuck Schumer’s decision to avert a government shutdown by supporting a controversial continuing resolution (CR), despite backlash from Democrats and anti-Trump groups who saw it as a capitulation. Professor Buchanan argues that while Schumer is not typically a progressive hero, he made the right decision to prevent lasting harm, as a shutdown would have handed excessive power to Trump and Musk. Professor Buchanan calls upon Democrats to stop infighting so that they can effectively resist the rise of authoritarianism.

Cornell professor Joseph Margulies discusses President Donald Trump’s attempt to use Guantanamo Bay as a detention facility for migrants, highlighting the legal and logistical obstacles that make such plan infeasible. Professor Margulies argues that Trump’s real goal has never been about policy implementation but rather about shaping public perception—using Guantanamo as a symbol to dehumanize immigrants and redefine the national identity around exclusion.

Amherst professor Austin Sarat discusses the Trump administration’s late-night deportation of alleged Venezuelan gang members despite a federal judge’s order to halt the process and examines the implications for constitutional law and executive power. Professor Sarat argues that by defying the court order, the administration dangerously undermined the rule of law, demonstrating its willingness to consolidate power and disregard constitutional checks, marking a troubling crisis for American democracy.

Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron reviews Scott Turow’s latest legal thriller, Presumed Guilty, focusing on the evolution of Turow’s writing and the transformation of his protagonist, Rusty Sabich, from prosecutor to defense attorney in a rural setting. Professor Citron argues that Turow continues to craft compelling courtroom dramas with thoughtful legal realism, highlighting how Presumed Guilty expands on themes of justice, race, and personal growth, making Rusty not only an older character but a more mature one.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone discuss the scope and original intent of the Fourteenth Amendment’s Citizenship Clause, particularly in response to a recent executive order issued by President Trump that seeks to limit birthright citizenship. Professors Amar and Mazzone argue that the executive order (and the few legal scholars who endorse its legal basis) misinterprets the Constitution by imposing parental status requirements that are not present in the text, and they explain that both historical and legal precedent overwhelmingly support the conventional interpretation that all persons born on U.S. soil and subject to its laws are citizens.

Criminal defense attorney Jon May critiques Professor Alan Dershowitz’s defense of the Department of Justice’s decision to dismiss criminal charges against New York Mayor Eric Adams and argues that the deal is unlike typical plea bargains in federal criminal cases. Mr. May contends that Adams’s agreement, which involves no criminal penalty, dangerously expands the scope of prosecutorial discretion and could lead to a system where defendants barter extrajudicial favors to avoid prosecution, undermining principles of justice.

Amherst professor Austin Sarat discusses how several state legislatures, particularly Alabama, are passing laws allowing the death penalty for child rape despite a 2008 Supreme Court ruling, Kennedy v. Louisiana, that declared such punishment unconstitutional. Professor Sarat argues that this strategic legislative defiance represents a dangerous trend that threatens constitutional order, as lawmakers are deliberately passing unconstitutional laws hoping the current conservative-majority Supreme Court will overturn precedent, similar to the strategy that led to Roe v. Wade being overturned.

Hofstra Law professor James Sample examines President Donald Trump’s conduct that facilitates corruption, particularly the launch of a cryptocurrency scheme and the broader erosion of anti-corruption safeguards, including weakened bribery laws, de-prioritized enforcement of foreign influence regulations, and the dismissal of government watchdogs. Professor Sample argues that these actions, along with Supreme Court rulings limiting bribery prosecutions, have systemically undermined the rule of law, fostering an environment where public officials can engage in transactional governance that threatens democracy itself.

Cornell Law professor Michael C. Dorf discusses a recent symposium on constitutional law casebooks, highlighting the challenges of teaching constitutional law at a time when the Trump administration and the Supreme Court are reshaping legal precedents. Professor Dorf argues that while these changes present difficulties, it remains essential to teach established legal principles and encourage students to critically engage with unresolved legal questions, including, in some cases, through the use of rhetorical questions in casebooks.

Amherst professor Austin Sarat examines Montana’s death penalty status, noting that capital punishment is legally permitted but rarely used in the deeply Republican state, with only three executions since 1976 and recent legislative rejection of a proposal to facilitate more executions. Professor Sarat argues that even as a symbolic punishment, maintaining capital punishment on the books causes harm to both the abolitionist cause and the entire country by making extreme prison sentences seem more humane by comparison, contributing to America’s high incarceration rates.

UC Davis Law professor Vikram David Amar examines the U.S. Department of Justice’s decision to dismiss federal corruption charges against New York Mayor Eric Adams and the legal and ethical implications of potentially using criminal charges as leverage to influence local government policy decisions. Professor Amar argues that if the DOJ dismissed charges as part of a quid pro quo to gain Adams’s cooperation with federal immigration policies, this would constitute an unconstitutional violation of federalism principles by improperly pressuring local officials to act against their constituents’ interests, similar to prohibited practices outlined in Supreme Court cases like New York v. United States and Spallone v. United States.

Amherst professor Austin Sarat discusses Ohio Governor Mike DeWine’s ongoing de facto moratorium on executions and the broader implications for the future of the death penalty in both Ohio and the United States. Professor Sarat argues that Ohio’s inability to procure lethal injection drugs, combined with public opposition, racial disparities, financial inefficiencies, and declining crime rates, demonstrates that the state—and potentially the nation—can function without capital punishment, signaling a possible shift toward abolition.

UC Davis Law professor Vikram David Amar discusses the surge in federal lawsuits challenging the new Trump administration’s extensive assertions of executive power. Emphasizing the critical role of the judiciary in these times, Professor Amar explains the significance of court rulings, particularly preliminary injunctions, as temporarily halting executive actions to prevent irreparable harm while the legal merits are fully adjudicated, and he highlights the immense pressure on judges to navigate these complex and politically charged constitutional issues.

Amherst professor Austin Sarat discusses the recent execution of Marion Bowman in South Carolina, focusing on his case and the broader cruelties inherent in the American capital punishment system. Professor Sarat argues that Bowman’s case exemplifies multiple systemic issues in death penalty cases, including the treatment of those claiming innocence, the coercive nature of plea deals, inadequate legal defense, and the psychological torture of death row conditions, particularly during the final months before execution.