Articles Posted in Government

Cornell Law professor Michael C. Dorf discusses House Speaker Mike Johnson’s refusal to administer the oath of office to Adelita Grijalva, a duly elected representative from Arizona, and examines the constitutional and legal implications, particularly in light of the U.S. Supreme Court’s 1969 decision in Powell v. McCormack. Professor Dorf argues that Johnson’s actions appear to be a politically motivated and constitutionally baseless effort to block Grijalva from voting—potentially on the Epstein files discharge petition—and reflects a broader disregard for democratic norms and the rule of law.

Cornell Law professor Michael C. Dorf explores whether law firms that settled with the Trump administration by agreeing to provide free services to the government violated the Antideficiency Act, which bars unauthorized voluntary services to federal agencies. Professor Dorf argues that these services are not truly voluntary, as they were made under coercive executive orders, and thus the law firms did not violate the Act—but instead, it is President Trump who broke the law by issuing unconstitutional orders targeting political enemies.

UC Davis Law professor Vikram David Amar discusses California’s new law, SB 627, which bans masked law enforcement, including federal agents like ICE, from covering their faces in public interactions, and evaluates its constitutional viability under the Supremacy Clause. Professor Amar responds to a public commentary by Berkeley Law professor Erwin Chemerinsky and argues that because SB 627 directly regulates federal officers without clear congressional consent, it is unconstitutional, and as such, California cannot enforce it against federal agents like ICE.

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.

Illinois Law professor Matthew W. Finkin draws a detailed historical comparison between Donald Trump’s 2025 actions as U.S. president and key elements of the Nazi regime’s early consolidation of power, highlighting parallels in civil service purges, governmental structure, legal subordination, and ideological control. Professor Finkin argues that Trump’s efforts to reshape American institutions through loyalty tests, executive overreach, and propaganda echo dangerous authoritarian patterns, raising concerns about the erosion of democratic norms and the potential for a similar “seizure of power” unless checked by the judiciary and public resistance.

NYU Law professor Samuel Estreicher critiques President Trump’s Executive Order 14,215, which mandates that all administrative agencies adopt the legal interpretations of the President or Attorney General as the official position of the U.S. government. Professor Estreicher argues that this directive dangerously undermines the independence of federal agencies and the constitutional separation of powers, and should therefore be rescinded or struck down by the courts.

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.

Amherst professor Austin Sarat discusses various contenders for the “worst legal decision of 2024,” including Supreme Court rulings on presidential immunity and controversial death penalty cases, before ultimately focusing on Trump’s nomination of Matt Gaetz for Attorney General. Professor Sarat argues that the Gaetz nomination was the year’s worst legal decision because it demonstrated Trump’s contempt for the rule of law and signaled his intention to transform the Justice Department into a personal defense operation based on loyalty rather than legal principles, even after Gaetz’s withdrawal and replacement by Pam Bondi.

Leading experts at an NYU webinar discussed three major constitutional challenges to the National Labor Relations Board (NLRB) in light of recent Supreme Court decisions: restrictions on presidential removal of Board members, the status of administrative law judges, and potential jury trial requirements. While panelists predicted the Supreme Court may be reluctant to completely invalidate the NLRB's structure, they acknowledged growing judicial skepticism toward administrative agency independence, with potential implications for labor relations and administrative governance more broadly.

Amherst professor Austin Sarat discusses how progressives should reconsider their traditional opposition to states’ rights (federalism) and the Senate filibuster in light of Donald Trump’s recent electoral victory. Professor Sarat argues that despite progressives’ historical criticism of these mechanisms, they should now embrace both federalism and the filibuster as valuable tools to resist and limit Trump’s agenda, just as they did during his first administration.

Cornell Law professor Michael C. Dorf analyzes the eight possible outcomes of today’s U.S. federal elections (based on whether Democrats or Republicans win control of the presidency, Senate, and House) and their implications for governance. Professor Dorf contrasts how unified government enables major legislation with how divided government limits policy changes, while emphasizing an asymmetric risk: Republican control of even one chamber could enable them to challenge a Harris victory or force a debt ceiling crisis, making Democratic control of at least one chamber essential for a potential Harris presidency to function.

Lauren Stiller Rikleen examines Project 2025’s proposals for presidential power in light of Senator Whitehouse’s report “Unworthy of Reliance,” which details how the Trump administration constrained the FBI’s 2018 supplemental investigation into sexual assault allegations against Supreme Court nominee Brett Kavanaugh. Ms. Rikleen argues that the Kavanaugh confirmation process, where the White House secretly limited the FBI’s investigation while publicly claiming it had “free rein,” serves as a real-world example of how Project 2025’s vision of presidential control over independent agencies has already been implemented and threatens American democracy.

Former federal prosecutor Dennis Aftergut discusses the potential economic and institutional dangers of a second Trump presidency, drawing parallels between authoritarian kleptocracies throughout history and Trump's demonstrated patterns of behavior. Mr. Aftergut argues that Trump’s return to power would threaten not only democratic freedoms (as warned by former officials like General John Kelly) but also Americans’ financial well-being through systemic corruption and self-enrichment, with no remaining “guardrails” of principled advisors to constrain such behavior.

Retired UC Berkeley Law professor Jan Vetter discusses the Supreme Court’s decision in Garland v. Cargill, which invalidated a regulation classifying bump stocks as machine guns, and examines the Court’s approach to statutory interpretation. Professor Vetter argues that the Court’s majority, led by Justice Clarence Thomas, took an overly narrow and literal interpretation of the statute, neglecting to consider legislative intent and the broader purpose of the law, and he suggests that judges should act more as partners with the legislature in interpreting statutes to achieve their intended policy goals.

Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Amherst professor Austin Sarat discusses Supreme Court Justice Neil Gorsuch’s newly published book Over Ruled: The Human Toll of Too Much Law and his recent public statements criticizing excessive regulation. Professor Sarat argues that despite Gorsuch’s attempts to present himself as a champion of ordinary Americans, his judicial record and conservative stance on federal regulations suggest that his book’s message should be viewed skeptically, as reduced regulation often benefits powerful interests at the expense of workers, the disabled, and environmental protection.

Criminal defense attorney Jon May examines Project 2025, a plan developed by conservative organizations to overhaul the Executive Branch, with a focus on its potential impact on the Department of Justice under a second Trump administration. Mr. May argues that Project 2025 is a roadmap for subverting the rule of law and transforming the DOJ into an instrument of political oppression, warning that its implementation would lead to authoritarian control, the politicization of law enforcement, and a threat to democratic principles.

Amherst professor Austin Sarat discusses the current state of political violence in the United States, focusing on recent polls, statements from political leaders, and the impact on public officials. Professor Sarat argues that there is an alarming asymmetry in the acceptance of political violence, with MAGA Republicans more likely to endorse it; he calls for addressing this issue through education, electoral efforts, and legal accountability, while urging presidential debate moderators to question candidates on this critical topic.

Amherst professor Austin Sarat discusses the reactions of former President Trump and his allies to his conviction in the New York hush money trial, including their claims that the prosecutions against him are politically motivated and their threats to retaliate with prosecutions against Democrats if Trump is re-elected. Professor Sarat argues that these false allegations and threats represent a dangerous escalation in the MAGA campaign to discredit the rule of law and turn criminal prosecution into a tool of political combat, which would undermine fundamental freedoms and allow future presidents to target individuals based on their political views rather than actual crimes committed.

UC Davis Law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd., which upheld the constitutionality of the CFPB’s funding scheme, and examines the role of “history and tradition” in the Court’s constitutional jurisprudence. Professor Amar argues that while relying on post-enactment traditions to interpret the Constitution raises complex questions, especially in the context of originalism, such traditions may be more defensible when determining the scope of individual rights as opposed to structural provisions like separation of powers and federalism.