Articles Posted in Government

D.C. Circuit Dismissal of Congressional Subpoena Lawsuit (Further) Erodes American Democracy
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Cornell law professor Michael C. Dorf comments on last week’s decision by the U.S. Court of Appeals for the D.C. Circuit holding that federal courts could not enforce a congressional subpoena to former White House Counsel Don McGahn because federal courts cannot adjudicate interbranch disputes. Dorf describes some of the major flaws in the court’s reasoning and explains why the ruling is a clear victory for Donald Trump and a loss for the constitutional system.

Two Constitutional Lessons Worth Remembering: Norms Are Different From Legal Rules; And Improper Intent Matters But Is Hard To Establish
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Illinois law dean and professor Vikram David Amar comments on the controversy surrounding President Trump’s tweets about the sentencing of Roger Stone, addressing the important differences between norms and legal rules. Amar points out that the motive underlying such presidential decisions is ultimately what determines whether the action is improper—and that such motives are notoriously difficult to establish.

The Real Insidious Part of Dershowitz’s Impeachment Defense
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Illinois law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker discuss Harvard Law professor Alan Dershowitz’s explanation of why he stands (virtually) alone in his views on impeachment—that all the scholars who disagree with him are biased partisans. Amar and Caminker explain why this claim is so insidious, with effects lasting well beyond the span of the current presidency.

Can a President Who Is Reelected After Being Acquitted in One Impeachment Case be Retried by a Subsequent Senate?
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Illinois law dean and professor Vikram David Amar considers whether a President who has been impeached and acquitted may, if reelected, be retried by a subsequent Senate. Amar acknowledges that it is unclear whether the Fifth and Sixth Amendments’ criminal procedural protections apply to impeachment proceedings, but he offers two key reasons that re-litigation of impeachment allegations after presidential reelection would be improper.

Trump Administration Lawyer Asserts That a State Courthouse is no Different from a Burger King
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Cornell law professor Michael C. Dorf comments on a lawsuit in which New York State and other plaintiffs are suing the federal government over an immigration policy of arresting undocumented immigrants when they appear in state court on unrelated matters. Dorf explains why the federal judge hearing the case should reject the government’s motion to dismiss the lawsuit.

The Argentine Election and the Limits of the Peter Principle
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Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.

The Voters’ One True Power and Impeachment
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Marci A. Hamilton, a professor at the University of Pennsylvania, argues that the present allegations against President Trump require representatives and senators to act in the interest of the voters and seek the truth. Hamilton explains that the checks and balances our Constitution’s framers put in place were designed for this very type of situation, and the power to impeach serves a vital role of protecting the people.

A Tale of Two Nixons: Executive Branch Officials Must Comply with House Subpoenas
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Cornell law professor Michael C. Dorf explains why U.S. Supreme Court cases—confusingly, Nixon v. United States and United States v. Nixon—together should foreclose any legal arguments that might have supported President Trump’s strategy to fight impeachment. Dorf explains each of the precedents and their bearing on today’s situation.

Is Actual Control Required for an Employer-Employee Relationship? The Case Law Suggests Otherwise
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NYU law professor Samuel Estreicher and 3L Sara Spaur argue that the premise of a recent National Labor Relations Board proposed rulemaking—that an employer must exercise direct and immediate control over employees to be a joint employer under the National Labor Relations Act—is not supported by the common law, as is required. Estreicher and Spaur explain that the Restatements of Agency and four key cases support the opposite conclusion, that the test for employer status is not actual control, but simply the right to control employees.

Whatever Andrew Wheeler’s True Motives, He Deserves Praise for Moving EPA Away from Animal Testing
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Cornell law professor Michael C. Dorf comments on a memorandum recently issued by Andrew Wheeler, the administrator of the federal Environmental Protection Agency (EPA), that announced directives to substantially reduce government funding for and mandating of animal testing of chemicals to which humans might be exposed. Dorf acknowledges that Wheeler’s motivation might be the deregulation of industries that produce chemical products (a legitimate concern expressed by some public health and environmental groups), but Dorf argues that the policy is win-win-win: better for the animals spared experimentation; less costly to the public fisc; and better for human health.

The Fifth Circuit Pushes Pre-Enforcement Review Too Far in Barring the EEOC from Publishing Guidance on Title VII’s Regulation of Ex-Convict Employment Bars
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NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Fifth Circuit, in which that court enjoined the Equal Employment Opportunity Commission (EEOC) from publishing its guidance on the applicability of Title VII’s disparate impact analysis to employers’ use of criminal records in hiring decisions. Estreicher explains why the federal appeals court was incorrect in holding that the EEOC violated the notice-and-comment procedures for rulemaking under the Administrative Procedure Act.

Constitutional Democracy, Trust, and Self-Restraint: The Destructive Consequences of Republicans’ Opportunism
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University of Florida Levin College of Law professor Neil H. Buchanan laments the current precarious situation of our constitutional democracy. He argues that a constitutional democracy becomes unsustainable and ultimately dies when a party abuses and changes the system to maintain its power, which he observes Republicans are doing now.

Did the Trump Justice Department Seek to Change its Legal Team in the Census Case Because the Original Lawyers Refused to Lie?
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Cornell law professor Michael C. Dorf comments on the recent back-and-forth involving the Department of Justice seeking to place a new legal team on the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. Dorf points out that whoever ends up representing the administration, this attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.

“Pretext” and Review of Executive Decisionmaking in the Citizenship Census Question Case
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NYU law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision regarding the inclusion of a citizenship question on the 2020 census questionnaire, arguing that courts should not get involved in determining whether agency action is based on “pretext.” Rather, Estreicher suggests that this particular case was highly unusual and that the Court’s decision should be limited accordingly.

Big Little Truths About the 2018-19 Supreme Court Term
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Illinois law dean and professor Vikram David Amar reflects on the decisions the U.S. Supreme Court issued at the end of its 2018–19 term. Amar observes three key trends at the Court: its focus on what constitutes improper government motive, concerns over broad congressional delegation to the executive, and tension over the meaning and theory of stare decisis.

You Can’t Have Your Meat and Eat It Too: “Big Ag’s” Conflicting Positions About Regulating New Food Technologies
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Jareb Gleckel, a third-year law student at Cornell Law, comments on the legal and regulatory issues that arise from new food technologies such as “cell-based meat”—which is derived from stem cells to create meat that is identical, at the cellular level, to animal flesh, but does not require the raising and slaughtering of animals. Gleckel explains why both the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) have been asked to exercise jurisdiction over this cell-based meat and argues that, given the position of “Big Ag” that the USDA should regulate cell-based meat, cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or even simply “meat.”

Elected Dictators? The Limits of What Government Officials Can Do With Their Power
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University of Florida Levin College of Law professor Neil H. Buchanan considers whether America, having elected Donald Trump, must consequently accept everything he does as “democracy at work.” Buchanan argues that constitutional processes exist not only to protect democracy not only in word but also in spirit, and that extreme consequences of legal action can still threaten the future of democracy.

New York Lawmakers Take Aim at Trump
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Cornell law professor Michael C. Dorf considers whether two New York bills—one that requires state and local officials to provide congressional committees with the President’s state and local tax records upon request, and the other that would permit the state to prosecute an individual for conduct that was presidentially pardoned—set a dangerous precedent for state interference with federal action. Dorf argues that these bills provide a permissible form of diagonal checks and balances between the branches of the state and federal government and do not raise constitutional concerns.

When, If Ever, Should a Legislature Be Able to Enact a Law that it Knows (or Should Know) that Courts Today Would Invalidate?
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Illinois law dean Vikram David Amar and professor Jason Mazzone considers whether (and when) a legislature should pass laws that court are likely to invalidate under current precedent. Amar and Mazzone argue that when legislatures enact laws that are at the time unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits, but sometimes helpfully informing the work of other governmental actors and guide the resolution of constitutional issues

Complicity in Trump’s Bogus Emergency
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Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall Law School and the University of Toronto Law school. He also holds the James J. Freeland Eminent... 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... 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... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder, CEO, and Academic Director of CHILD USA, a 501(c)(3)... more

Joseph Margulies

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

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... 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,... more