Analysis and Commentary on Government

What California Voters Should Focus on When Voting on Tim Draper’s “CAL 3” Initiative

Illinois Law dean and professor Vikram David Amar comments on Tim Draper’s proposal to divide California into three separate state. Amar describes what the proposal would do and provides three levels of hurdles that will (and Amar argues should) make the proposal a difficult sell, particularly among rational Democrats, who make up the majority of California voters.

The Only Unpardonable Offense

Cornell University law professor Joseph Margulies expands upon a prior column in which he argued that all of President Donald Trump’s attacks thus far on Special Counsel Mueller are not actually a threat to the rule of law. Margulies considers two other scenarios: delegating the task of firing the special counsel, which Margulies argues does threaten the rule of law, and pardoning those convicted by the special counsel, which he argues does not.

Lessons From the Gina Haspel Imbroglio

Cornell University law professor Joseph Margulies explains why we should withhold judgment about President Donald Trump’s nominee to head the CIA, Gina Haspel. Margulies points out that, notwithstanding what we do know about Haspel’s role in facilitating torture at CIA black sites, there is much information we still do not yet know that could inform our assessment of her. He calls upon both the Left and the Right to reduce knee-jerk reactions and instead seek to make careful assessments based on complete information and facts.

Supreme Court Divides Over What a Law Is

Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.

Maybe He’s Just a Bum

Cornell University law professor Joseph Margulies considers the contention that President Trump's frequent tweets criticizing the ongoing investigation by Special Counsel Mueller and others are an assault on the "rule of law." Margulies notes that the prevailing view on this rather nebulous concept seems to be that the law must be allowed to operate without criticism from anyone it targets. Not only is this interpretation overly literal and simplistic, Margulies argues, President Trump’s criticism also does not amount to such an assault. The president’s attempts to interfere with the ongoing investigation, his order for Special Counsel Mueller to be fired, and other actions, on the other hand, come far closer to constituting an (attempted) assault on the rule of law.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Why the Supreme Court Was Right to Stay out of the Pennsylvania Supreme Court Districting Case, and Why State Courts Have Important Roles in this Arena

Illinois Law dean and professor Vikram David Amar explains why the US Supreme Court was right to leave undisturbed the recent congressional redistricting ruling by the Pennsylvania Supreme Court. Amar describes the important role (and limitations) of state courts and state legislative bodies in our federal system.

The Constitution Under Trump: A Year-One Report Card

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.

Two (But Only Two) Jeers for Enforcing the Federal Marijuana Law in Legalized States

Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.

Why Government?

Cornell University law professor Joseph Margulies points out that “the market” did not create any of the benefits to which most of us have come to feel entitled to—including workers’ compensation, mortgage interest deductions, veterans’ benefits, non-discrimination laws, and many more. Rather, the federal government created these things, and the government continues to play a critical and beneficial role in everyone’s lives, despite widespread sentiment that “government is bad.” Margulies looks specifically to the Low Income Housing Tax Credit, which is the primary reason affordable housing exists, albeit in lesser numbers than is currently needed, and points out that this and other critical services are at risk in the GOP tax bill.

A Dozen (or so) Thoughts on Senate Expulsion (With Special Reference to the Roy Moore Affair)

Illinois Law dean and professor Vikram David Amar offers some thoughts on the divisive ongoing conversation about the possibility of the Senate voting to expel Senate candidate Roy Moore from Alabama, if he should win next month’s special election. Amar looks at the history of the practice of Senate expulsion, as well as some of the uncertainties that surround it.

The Russian Meddling in the 2016 Election: The Internet Meets the Democratic System

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton calls upon social media giants, particularly Facebook, to act morally and implement safeguards to protect the democratic process, or else be regulated by Congress. Hamilton points out that Facebook has amassed more data about individual people than any other company in the world, and it should shoulder the burden of handling that data responsibly rather than for the pure purpose of profit.

The Need for Clearer Understanding of the Basic Federalism Doctrines Concerning Sanctuary Cities and Other Federal-State Flashpoints

Illinois Law dean and professor Vikram David Amar explains the federalism doctrines implicated by Attorney General Sessions’ attempt to deny funding to sanctuary jurisdictions. Amar points to lower court decisions that reflect a misunderstanding of the doctrines and calls upon federal courts and their law clerks to better understand and apply not just the nuanced technical details of various specific doctrines, but the overall federalism big picture as well.

What’s Different—And What Isn’t—About Travel Ban 3.0

Cornell University law professor Michael C. Dorf describes some of the key similarities and differences between the most recent iteration of President Trump’s ban on entry to the US by certain foreign nationals (“Travel Ban 3.0”) and earlier versions, and considers whether these differences will affect the determination of the policy’s legality. Although the Supreme Court might not ultimately be the court that answers the question, Dorf points out that we may have an answer before too long.

Al Franken, Giant of the Senate

John W. Dean, former counsel to President Richard Nixon, praises Senator Al Franken’s newest book, Al Franken, Giant of the Senate. Without giving spoilers, Dean shares a few reasons he recommends the book, in which Franken provides unique insight into our political system and demonstrates his capacity for doing the serious work of the US Senate and occasionally injecting it with appropriate touches of comedy.

Political Impediments to Carving California into Three States, and Why Tim Draper Should Support the NPV Plan for Presidential Elections

Illinois Law dean and professor Vikram David Amar continues his discussion of the proposal by Silicon Valley billionaire investor Tim Draper to break up California into three separate states. Amar describes several political obstacles to Draper’s proposal and explains how implementation of the National Popular Vote plan could actually help Draper achieve his goal of dividing the state.

A Republican Reverie: If Only Clinton Had Won!

George Washington law professor and economist Neil H. Buchanan argues that a Clinton victory in 2016 would have been better for Republicans than Trump has been. Buchanan explains why Republican obstructionism, if carried into a Clinton presidency, would have meant longer-term wins for Republicans across multiple branches of government.

Don’t Shred the Evidence

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

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

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.

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 and a Professor of Law at The George Washington U... 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. Befo... 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 country’s leading church-state scholars and the Fox Professor of Pra... 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... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more