Articles Posted in Constitutional Law

In this two-part series of columns, Illinois Law professors Lesley M. Wexler and Anthony Ghiotto examine the Trump administration’s increasing domestic use of military personnel—particularly military attorneys (JAGs)—to enforce civilian law, highlighting legal concerns surrounding the Posse Comitatus Act. Professors Wexler and Ghiotto argue in Part I that while the use of JAGs as prosecutors and immigration judges may technically be lawful under limited congressional exceptions, it undermines civil-military boundaries and raises serious constitutional and due process concerns.

Amherst professor Austin Sarat discusses President Trump’s efforts to unilaterally alter federal election rules through executive orders, including mandates on voter ID and restrictions on mail-in voting, despite constitutional limits on presidential authority. Professor Sarat argues that these actions not only violate the Constitution’s allocation of election oversight to Congress and the states but also reflect a partisan attempt by Trump to influence the outcome of the 2026 congressional elections.

Touro University, Jacob D. Fuchsberg Law Center professor Rodger Citron discusses the evolving state of administrative law in light of the U.S. Supreme Court’s 2023–24 term, which significantly curtailed agency power by overturning Chevron deference and bolstering the Major Questions doctrine—referred to by scholars as the “Roberts Court Revolution” (RCR). Professor Citron, a co-author of a new administrative law textbook, reflects on the challenges of capturing these rapid legal changes in academic materials, ultimately presenting a critical stance toward the Court’s recent decisions and expressing concern about the ongoing weakening of the administrative state, especially under President Trump’s second term.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine President Trump’s executive order instructing the Department of Justice to prioritize prosecuting flag burning under existing content-neutral laws and considers the constitutional implications under First Amendment jurisprudence. Professors Amar and Mazzone argue that while the executive order nominally adheres to constitutional constraints, it potentially raises serious free speech concerns by targeting specific expressive conduct—flag desecration—for prosecution based on its political message, and exposes the lack of clarity and consistency in the Supreme Court’s First Amendment doctrine.

Amherst professor Austin Sarat examines a recent lawsuit in Arkansas challenging a new law, Act 302, which gives the state's Department of Corrections unchecked discretion to choose between execution by lethal injection or nitrogen hypoxia, without timely notice or legislative guidance. Professor Sarat argues that this vague delegation of power is unconstitutional, violates due process and separation of powers, and adds unnecessary psychological cruelty to death row inmates by keeping them uninformed about how they will be executed.

Amherst professor Austin Sarat explores the importance of competency in death penalty cases, focusing on whether individuals like Ralph Menzies—who suffer from dementia and cannot comprehend their punishment—should be eligible for execution. Professor Sarat argues that executing cognitively impaired individuals violates the core purpose of punishment as a form of moral accountability, and calls for shifting the legal burden onto the state to prove competency in such cases to prevent unjust and inhumane executions.

UC Davis Law professor Vikram David Amar explores the U.S. Supreme Court’s recent decision in FCC v. Consumers’ Research, focusing particularly on Justice Brett Kavanaugh’s concurring opinion and its implications for the nondelegation doctrine and the separation of powers. Professor Amar argues that while Kavanaugh makes several insightful points defending executive discretion and the use of “intelligible principles,” his reasoning on independent agencies, Article II implications, and national security exceptions lacks nuance and requires further elaboration to be convincing.

Cornell Law professor Michael C. Dorf examines the legality of the Trump administration’s deals with Nvidia and AMD, which require the companies to pay 15% of AI chip sales made to China to the U.S. government, evaluating whether these payments constitute unconstitutional export taxes. Professor Dorf argues that although the payments function as export taxes—which are barred by the Constitution—the companies are unlikely to challenge them due to fears of political retaliation and economic consequences from the administration.

UC Davis Law professor Vikram David Amar and professor emeritus Alan Brownstein explore the long-standing and increasingly pressing conflict within First Amendment jurisprudence between the Free Exercise Clause, which often justifies special accommodation for religious expression, and the Free Speech Clause, which prohibits viewpoint discrimination by the government. Professors Amar and Brownstein argue that recent federal policies privileging religious expression—particularly in political and workplace contexts—risk violating core free speech principles by distorting democratic processes and creating inequities between religious and secular voices, a dilemma the Supreme Court can no longer avoid addressing.

As most folks paying attention this year appreciate, President Donald Trump has been issuing Executive Orders that, taken as a whole, seem unprecedented in their number, scope, and constitutional aggressiveness. Federal courts, in which the lion’s share of the legal challenges to these Orders have been filed, have been playing catch up in this regulatory-blitzkrieg…

Amherst professor Austin Sarat discusses Delaware’s historic efforts to constitutionally ban the death penalty, positioning the state to become one of the few U.S. jurisdictions with an explicit constitutional prohibition against capital punishment. Professor Sarat argues that to ensure lasting abolition, death penalty opponents across the country should pursue constitutional amendments rather than rely on statutes or court rulings, which are more susceptible to reversal.

Cornell Law professor Michael C. Dorf discusses Alan Dershowitz’s threat to sue a pierogi vendor who refused to serve him over political disagreements, using the incident to explore whether laws should prohibit discrimination in public accommodations based on political affiliation. Professor Dorf argues that while such discrimination is currently legal in most jurisdictions, including Massachusetts, and rarely occurs, creating laws against it could be both unnecessary and costly, and might conflict with First Amendment protections.

Illinois Law professor Steven D. Schwinn critiques the Supreme Court’s recent emergency-docket rulings that, without explanation, allow the Trump administration to remove independent agency officials, potentially dismantling key regulatory bodies, while disregarding a foundational 1935 precedent supporting the autonomy of such agencies. Professor Schwinn argues that by acting without transparency or justification, the Court undermines the constitutional balance of powers, weakens congressional authority, and damages its own legitimacy and credibility.

UC Davis Law professor Vikram David Amar examines the Supreme Court’s increasing reliance on expedited “shadow docket” cases and preliminary injunction appeals that bypass normal procedural safeguards, focusing particularly on the 2024-25 Term. Professor Amar argues that the Court’s rushed handling of emergency cases produces weaker opinions and undermines judicial legitimacy, and he critically observes that the Court is selectively choosing when to definitively resolve merits in cases with incomplete factual records, as demonstrated by contrasting approaches in cases like United States v. Skrmetti, Mahmoud v. Taylor, and Trump v. CASA.

Cornell Law professor Michael C. Dorf examines President Trump’s threats to fire Federal Reserve Chair Jerome Powell over Powell’s refusal to lower interest rates amid economic uncertainty from Trump’s own policies, including tax cuts, immigration enforcement, and tariffs. Professor Dorf argues that Powell’s cautious approach is justified given the unpredictable economic impacts of Trump's policies, and explores the legal ambiguity around whether Trump can lawfully remove Powell, ultimately suggesting that market forces rather than legal constraints may be the main deterrent to such action.

Touro University, Jacob D. Fuchsberg Law Center professor Rodger Citron examines whether Americans should be concerned about the prospect of secession in today’s politically polarized climate, compiling perspectives from several law professors on the viability and implications of states or regions leaving the United States. While most experts agree that traditional state secession is practically impossible due to political divisions existing within rather than between states, the discussion of secession remains valuable for understanding political theory, and some forms of “soft secession” (like sanctuary cities and nullification movements) may already be occurring. Moreover, recent Supreme Court decisions have fundamentally altered the constitutional order in ways that could theoretically enable secession.

Cornell Law professor Michael C. Dorf examines the most recent Supreme Court term, arguing that while it lacked the blockbuster decisions of previous years, it revealed the Roberts Court’s deeply conservative nature and troubling approach to the Trump administration. Professor Dorf argues that the conservative supermajority either fails to recognize or actively shares Trump’s authoritarian goals, treating him like a normal president and facilitating his attacks on the rule of law rather than confronting the unprecedented threat he poses to constitutional democracy.

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the importance of applying constitutional principles consistently across different political contexts, using examples from free speech, federalism, and equal protection cases. Professors Amar and Brownstein argue that constitutional interpretation should follow a “Golden Rule” principle—applying the same legal standards regardless of whether the outcome favors one’s own political preferences—though they acknowledge this is difficult because it requires people to subordinate their substantive desires for the sake of even-handed constitutional application.

Cornell Law professor Michael C. Dorf examines the Supreme Court’s decision in United States v. Skrmetti upholding Tennessee’s SB1 law banning gender-affirming care for transgender minors. Professor Dorf analyzes the Court’s rejection of arguments that the law discriminates based on sex or transgender status and argues that while the Court’s opinion avoided overtly offensive rhetoric, it problematically sanitized anti-transgender legislation by treating it as legitimate medical regulation rather than acknowledging the discriminatory animus behind laws that explicitly aim to make minors “appreciate their sex” assigned at birth.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the constitutional principles governing federal-state relations in the context of recent immigration enforcement protests in Los Angeles, specifically addressing what states can and cannot do regarding federal immigration operations, and what powers the federal government retains. Professors Amar and Mazzone argue that while states cannot be compelled to assist federal immigration enforcement (following the anti-commandeering doctrine), they also cannot discriminate against or obstruct federal operations, and the President has inherent constitutional authority to deploy federal forces to protect federal personnel and property without requiring state permission.