Analysis and Commentary on Constitutional Law

What Are We to Make of the First Month of the New Trump Administration in Constitutional Perspective?

University of Illinois Law dean and professor Vikram David Amar provides answers to some common questions about the Trump Administration from a constitutional perspective. Specifically, Amar addresses what is a constitutional crisis and whether we are approaching one, what the worst-case constitutional scenario might look like, how state and local governments can resist federal government overreach, to what extent executive criticism of the judiciary has a chilling effect, and what topics are fair game in the confirmation hearings of Judge Neil Gorsuch.

The Real Religious Liberty Deficits Right in Front of Us

Marci Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and leading church/state scholar, outlines what the United States must do to restore true religious liberty under the First Amendment, rather than go down the path of extreme religious liberty supported by right-wing Christian lobbyists. Hamilton argues that President Trump needs to remove Steve Bannon, unhinge himself from the extreme religious right, and open his eyes to the plain discrimination directly in front of him.

In for a Pence: How Congress Can Smooth the Path for Trump’s Removal via the 25th Amendment

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law and attorney with an international business practice, explains how Congress might be able to use the 25th Amendment to remove President Donald Trump. Falvy explains the difficulties in involuntarily removing a president under the 25th Amendment and describes how Congress might get around these difficulties.

President Trump’s Tools to Prosecute Leakers

John W. Dean, former counsel to President Richard Nixon, discusses President Trump’s recent comments regarding information leaks, one of which led to the resignation of National Security Advisor Michael Flynn. While Dean explains that there is no official law in the United States that makes it a crime to leak information to the news media or others, many former U.S. presidents have made attempts to prosecute those who leaked information during their presidencies, with varying degrees of success. This, Dean notes, may lend credence to President Trump's threat of legal consequences, should the individuals responsible for these most recent leaks be identified.

How Strong is San Francisco’s “Sanctuary City” Lawsuit Against the Trump Administration?

Illinois Law dean Vikram David Amar and California civil litigator Michael Schaps consider the strength of San Francisco’s lawsuit against the Trump Administration arising out of its identity as a “sanctuary city.” Amar and Schaps discuss both the ripeness of the claim, a threshold procedural matter, and also the merits of San Francisco’s arguments.

The Religious Liberty Draft Executive Order and the Risks to Children

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how extremely broad President Trump’s draft executive order on religious liberty, explaining how its breadth could have huge negative effects on children, LGBTQ individuals, and many others. Hamilton argues that the executive order is even broader than RFRA and that it poses both known and unknown risks to children.

Judge Gorsuch’s Misguided Quest to End Judicial Deference to Administrative Agencies

Cornell University law professor Michael C. Dorf discusses the distinctive position taken by Supreme Court nominee Neil Gorsuch with respect to the so-called Chevron doctrine, under which courts defer to reasonable agency interpretations of ambiguous federal statutes. Dorf explains why Judge Gorsuch’s quest to end judicial deference to agencies not only contrasts with Justice Scalia’s position on the issue, but it is also erroneous and based on a misconception of how Chevron works.

Law, Politics, and Symbolism in the Muslim Ban

Cornell University law professor Joseph Margulies argues that the significance of President Trump’s “Muslim Ban” executive order lies not in the legal issues it presents, but in its symbolism. As Margulies explains, the executive order is a symbol that will be used to mobilize support for competing narratives about American life; what ultimately matters is which narrative prevails.

Is President Trump Really Filling the Scalia Seat?

John W. Dean, former counsel to President Nixon, converses with author David Dorsen about whether President Trump’s pick for the U.S. Supreme Court, Judge Neil Gorsuch, is going to be ideologically consistent with the late Justice Antonin Scalia, whose seat Gorsuch would fill. Led by Dean’s questions, Dorsen explains that Scalia was not as across-the-board conservative as many thought him to be, and Gorsuch may not be either, at least not on topics such as trial by jury and double jeopardy.

You’re Fired: Four Ways Donald Trump’s Presidency Might Not Last Four Years

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law and attorney with an international business practice, examines four ways in which Donald Trump’s presidency might not last for the full four-year term. In addition to describing each of the four ways, Falvy offers a prediction as to the likelihood Trump’s presidency will end in that manner.

When a Conviction Is Reversed, Can the State Make the Defendant Prove Her Innocence?

Cornell University law professor Sherry F. Colb discusses a case before the U.S. Supreme Court that raises the issue whether a defendant whose conviction has been reversed may be required—without violating due process—to bring a separate civil action to prove her innocence in order to get a refund of the costs and fees imposed from her original conviction. Colb points out that the crux of the issue is whether the money sought to be returned is characterized as a refund or as compensation.

Federal Judge Buries Unconstitutional Texas Law on the Treatment of Fetal Remains

SMU Dedman School of Law professor Joanna Grossman explains how taxpayers end up paying for legislators to pass clearly unconstitutional laws and for the state to defend those laws in court. Specifically, Grossman discusses Texas laws attempting to restrict access to abortion and attempting to mandate the burial or cremation of fetal remains, both of which have been struck down as unconstitutional.

Philadelphia’s Ban on Employers Asking Job Applicants for Salary History Raises Interesting First Amendment Questions

Illinois Law dean and professor Vikram David Amar and UC Davis Law professor Alan Brownstein discuss a law the Philadelphia mayor recently signed into law that prohibits employers in that city from asking job applicants to provide their past salary data, in an attempt to reduce the wage gap between men and women. Amar and Brownstein specifically consider some of the arguments that the law violates the First Amendment.

Supreme Court to Consider When a Criminal Defendant Must Pay With His Life for His Lawyer’s Error

Cornell University law professor Michael C. Dorf comments on a case before the U.S. Supreme Court that presents the issue whether and when a criminal defendant should pay with his life for an error made by his lawyer. Dorf explains the facts behind the case as well as the relevant legal precedents. He argues that Davila, the criminal defendant in this case, might convincingly argue that his first real opportunity to complain about the ineffectiveness of counsel on direct appeal is in a state habeas proceeding.

The Religious Liberty Shell Game Needs to End Now Before the Civil Rights of Women and LGBTQ Recede into History

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, reminds of the distinction between constitutional rights and statutory rights. Hamilton argues that the so-called right to religious liberty used to excuse discrimination against LGBTQ individuals derives from federal statutes that were enacted out of animus in the first place.

The Sunshine the Constitution Craves: Alec Baldwin, Meryl Streep, Protesters, and Boycotters Should Not Stop Now

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, defends those protesting Donald Trump’s inauguration this week in the face of those calling for “unity.” Hamilton argues that “unity” in this case is simply a euphemism for “uniformity” and that the very democratic process demands that the people speak out and have their voices heard.

Constitutional Lessons from the Senate’s Quick Processing of President-Elect Trump’s Cabinet Picks?

Illinois Law dean and professor Vikram David Amar describes two lessons we should take away from the Senate’s processing of President-elect Trump’s nominees for his Cabinet. First, Amar explains the constitutional difference between executive and judicial appointments. Second, Amar explains the relatively long time between the end of the election and when the president-elect actually takes office, and also proposes a way to reduce this period and ease transition.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.  Bef... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States, a Fox Distinguis... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more