Articles Posted in Constitutional Law

Cornell law professor Michael C. Dorf implores the President or Congress to act swiftly and drastically to address the COVID-19 pandemic: lock down the nation and suspend habeas corpus. Dorf explains why this extreme measure is both appropriate and necessary in a situation such as this one.

Illinois Law dean and professor Vikram David Amar explains why a local government cannot constitutionally create policy discriminating against entities that do business with the feds. Specifically, Amar discusses a situation in which the city of Farland, California, is trying to prevent a privately operated state prison facility located in that city from contracting with Immigration and Customs Enforcement (ICE).

Illinois Law dean and professor Vikram David Amar comments on a recent decision by the U.S. Court of Appeals for the Second Circuit regarding so-called “sanctuary” jurisdictions. Amar argues that while the Second Circuit may have arrived at the correct conclusion of law, it also misunderstood the Supreme Court’s decision in NFIB v. Sebelius, in which the Court struck down the “Medicare expansion” provision of the Affordable Care Act as unconstitutionally coercive. Amar points out that in Sebelius, the Court found the fact that the Medicare expansion provision of the ACA vitiated the terms of a preexisting deal was sufficient to hold that provision coercive.

Rodger Citron, Associate Dean for Research & Scholarship and Professor of Law at Touro Law, comments on a case in which the U.S. Supreme Court will hear argument this week that presents the question whether an independent agency with a single director who can be removed only “for cause” violates the separation of powers principle enshrined in the Constitution. Citron notes that the decision to hear the case is unusual in that there is no conflict among the federal appeals courts, but he points out that that the government’s support of the cert. petition and then-Judge Brett Kavanaugh’s dissent on the issue when it came before the D.C. Circuit likely helped the present case come before the Court.

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.

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

Cornell law professor Sherry F. Colb comments on a case in which the U.S. Supreme Court will consider whether a police officer who shot and hit a fleeing suspect “seized” that suspect, thereby triggering the Fourth Amendment, even though the wounded suspect escaped the police. Colb explains some of the arguments and predicts an outcome that would affirm precedents and offers a compromise between competing constitutional concerns.

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.

Cornell law professor Michael C. Dorf comments on New York’s lawsuit against the federal government over the Department of Homeland Security’s decision to exclude New York residents from eligibility for Trusted Traveler programs. Dorf describes some of the interesting legal questions the lawsuit raises in terms of administrative law, judicial standing, and constitutional law.

SMU Dedman School of Law professor Joanna L. Grossman and Duke law professor Katharine T. Bartlett explain why a public school district in Texas violated both the federal Constitution and Title IX by having (and enforcing) a hair-length policy for boys but not for girls. Grossman and Bartlett describe the facts of the case and the legal landscape for sex-specific dress and appearance policies before concluding that the school district’s decision to enforce the policy was not only poor judgment but illegal.

Cornell law professor Sherry F. Colb discusses the concept of “conditional irrelevance”—which she first identified in a law review article in 2001—and explains why the concept is useful for understanding the arguments before the U.S. Supreme Court in Kansas v. Glover. Through the lens of conditional irrelevance, Colb explains why the knowledge of one fact (that the owner of the vehicle in that case lacked a valid license) should not itself provide police reasonable suspicion to stop the vehicle.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the U.S. Court of Appeals for the Third Circuit upholding a local law designed to address the wage gap. Grossman describes the landscape of equal pay law and the efforts some states and localities have made to address the inequity.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

UF Levin College of Law professor and economist Neil H. Buchanan considers whether there is anything Senate Republicans might have done, instead of outright acquitting President Trump, to maintain the role of Congress as a coequal branch with the Executive. Buchanan proposes that under the text of the impeachment clauses, those Republican senators could have voted for removal—the necessary result of finding wrongdoing—but permitted Trump to run again in the election later this year.

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.

Cornell law professor Michael C. Dorf considers how much freedom the government has to “level down” in response to a finding of impermissible discrimination. Dorf discusses several of the U.S. Supreme Court’s precedents on leveling down and points out that these decisions are difficult to reconcile with each other and leave unresolved the questions whether and when leveling down is permissible.

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

UNLV Boyd School of Law professor Leslie C. Griffin comments on the oral argument the U.S. Supreme Court heard this week in Espinoza v. Montana Department of Revenue, which presents the justices with questions about the meaning of the Free Exercise and Establishment Clauses of the First Amendment. Griffin describes the questioning by the justices and predicts that the outcome in this case will demonstrate how many justices still believe in the separation of church and state.

Cornell law professor Michael C. Dorf discusses the possible consequences of the Virginia legislature’s ratification of the Equal Rights Amendment (ERA) just last week, becoming the 38th state to do so. Dorf explains why there remains a question as to the validity of Virginia’s ratification, given the Amendment’s purported deadline, and explains why both liberals and conservatives alike should urge Congress to deem the ERA now valid.

Marci A. Hamilton, a professor at the University of Pennsylvania, argues that abuse of power is a sufficient ground for presidential impeachment, notwithstanding the argument to the contrary by President Trump’s impeachment defense lawyer, Alan Dershowitz. Hamilton explains that abuse of power by the President was the very fear of the Framers of the Constitution, and to reject it as an impeachable offense would subvert the spirit of the Constitution, as evidenced by the Framers’ debates at the Constitutional Convention.