Articles Posted in Government

Don’t Shred the Evidence

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Cornell University law professor Joseph Margulies comments critically on the decision by the Bureau of Immigration and Customs Enforcement (ICE) to destroy certain records regarding detainees held in ICE custody. Margulies argues that the information ICE seeks to destroy can be helpful in assessing the conditions, staffing, supervision, and practices in various facilities, for the purpose of improving the worst ones and learning from the ones with the best practices.

Indicting the President: President Clinton’s Justice Department Says No

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Chapman University Fowler School of Law professor Ronald D. Rotunda explains his legal conclusion in the opinion letter he authored for Ken Star regarding the ability of a federal grand jury to indict a sitting president. Rotunda points out that the key difference between then and now is the presence of a special prosecutor statute protecting independent counsel from removal.

Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

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Illinois Law professor Lesley Wexler explains why the U.S. military would benefit from strengthening its pro-dignity and anti-discrimination norms, rather than implementing divisive discriminatory policies such as President Trump’s recent tweet regarding transgender service members. Wexler points to concrete ways inclusivity fortifies the military and calls upon leadership to embrace inclusive policies.

An Attorney General Under (Friendly) Fire: Why Removing Jeff Sessions Is Beside the Point in President Trump’s War Against Robert Mueller

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Illinois Law dean and professor Vikram David Amar argues, contrary to the consensus of legal pundits, that President Trump likely does not have to dispose of Attorney General Jeff Sessions in order to fire Special Counsel Robert Mueller. Amar provides three reasons for his conclusion that the disposition of Sessions is beside the point in the president’s war against Mueller, but he points out that there are more downsides to getting rid of Sessions (for Trump) than there are upsides.

A Summary and Analysis of the Nixon Tapes Case That Still Governs Important Aspects of “Executive Privilege” Today

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Illinois Law dean and professor Vikram David Amar explains the U.S. Supreme Court’s seminal decision in United States v. Nixon and explains how it might affect the Trump administration in light of various ongoing investigations. Amar provides a brief summary of the Court’s holding in that case, calls attention to some weaknesses in its reasoning, and anticipates what issues might present themselves again.

Trump’s Travel Ban Heads to the Supreme Court

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Cornell University law professor Michael C. Dorf discusses possible implications and outcomes of the Supreme Court’s recent announcement that it will review the appeals court decisions invalidating President Trump’s travel ban executive order. Dorf explains the issue of mootness and also explains how one might predict how the Court will rule on the merits of the case.

Supreme Court Rules That Citizenship Must Be Equally Heritable Through Fathers and Mothers

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Cornell University law professor Michael C. Dorf comments on a recent decision by the U.S. Supreme Court on the heritability of citizenship and explains why the decision might have implications for other immigration issues, such as the “Muslim ban” executive order. Dorf argues that the precedents the Court had to distinguish to reach its conclusion might give some insight into whether and how it might defer to other political branches on immigration issues.

A Primer on Impeachment (With Special Attention to the Recent Allegations of Interference by President Trump in the Flynn/Russia Investigation)

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Illinois Law dean and professor Vikram David Amar explains a few basics about the presidential impeachment process. Amar points out that impeachable conduct does not need to violate criminal statutes, that presidential participation in pending investigations isn’t necessarily wrong (but can be), and that not all “high crimes and misdemeanors” must lead to impeachment.

Mr. No-Government President Discovers the Government

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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how the separation of powers built into U.S. democracy is working as it should to prevent abuses of power by, at this time, the executive. Hamilton points out that federalism—the balance of power between state and federal government—also plays a significant role in curbing abuses of power.

Another New Federalism Flashpoint: State and Local Laws Targeting Entities that Assist in “Building the Wall”

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Illinois Law dean and professor Vikram David Amar comments on recent actions by state and local governments to oppose federal policies, such as the immigration and the wall along the U.S.–Mexico border. Amar argues that these attempts likely run contrary to the Supremacy Clause of the U.S. Constitution by attempting to interfere with the execution of federal policy.

How to Drain the Swamp? Use a Flashlight

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Chapman University Fowler School of Law professor Ronald D. Rotunda calls for the executive branch to shine a light into some areas of government that have been obscured in the past eight years, including the conduct of former IRS officer Lois Lerner, Operation Fast and Furious, and investigations by the offices of the inspectors general. Rotunda argues that the release of documents related to these and other issues will help us know if we should be worried about our government.

Sympathy for the Comfortable: The New Conservative Theory of Compassion

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George Washington law professor and economist Neil H. Buchanan explains in plain English what Mick Mulvaney meant when he attempted to justify President Trump’s budget proposal that would cut programs that help America’s most vulnerable, such as Meals on Wheels and subsidized school lunches for poor children. As Buchanan explains, Mulvaney’s explanation is based on a false notion that better-off people gain as much utility from each dollar as worse-off people receive from the same amount.

The Educational Function of Kabuki Confirmation Hearings

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Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.

An Open Letter to the American People on the Dangers of Taking a President at His Word

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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, pens an open letter to the American people warning of the dangers of trusting any president without questioning. Hamilton explains that the framers of the Constitution envisioned that those in power could not be trusted and for that reason empowered the press to check those with power. Hamilton argues that the Trump Administration is encouraging the American people to abandon this part of the social contract.

Ambitious Proposals in the States Testing Constitutional Limits of Legislative Power to Interpret the Constitution

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Illinois Law dean and professor Vikram David Amar discusses several legislative proposals in various states that purport to give state legislatures power to interpret and implement the federal Constitution notwithstanding judicial rulings interpreting the same. Amar explains some of the key differences between the different proposals and why some are likely to pass constitutional muster while others are not.

Should Federalism Play a Role in the Interpretation of Civil Rights Laws?

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Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.

Visas: The Historical and Legal Precedent

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Chapman University, Fowler School of Law, professor Ronald D. Rotunda explains the legal precedent behind the executive’s power to restrict visas for non-U.S. citizens to enter the United States. Rotunda points out that the recent opinion by the U.S. Court of Appeals for the Ninth Circuit fails to mention almost any of the precedential cases on point when it struck down President Trump’s executive order limiting immigration.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Dale E. Fowler School of Law. Before that, he was University Profe... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more