Analysis and Commentary on Courts and Procedure

An Upcoming Case About Israel, Jerusalem, and Presidential Power Offers the Supreme Court the Chance to Clarify the Rules About “Political Questions”

Justia columnist and U.C. Davis law professor Vikram David Amar comments on a case that the Supreme Court will take up this November. As he explains, the case potentially raises thorny questions regarding two important topics: (1) the relationship between Congress and the President with respect to American foreign policy in the Middle East; and (2) the power (or lack of power) of federal courts to weigh in on such matters, pursuant to the Court’s “political question” doctrine. The case, MBZ v. Clinton (that is, Secretary of State Hillary Clinton), involves a 2002 law passed by Congress that, among other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for U.S. citizens born in the city of Jerusalem “as Israel.” President Bush signed the law into effect, but issued a signing statement to disclaim the legal effect of part of the law he was signing—on the ground that forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy. The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of the statute, notwithstanding the signing statement’s disclaimer. Whether they can do so, Amar explains, depends on whether the case at issue triggers the political question doctrine, under which there are some questions on which even the U.S. Supreme Court cannot rule, on the ground that they are properly resolved by one of the U.S. government’s political branches, rather than by the Court.

The Debt Ceiling Crisis Reveals a Constitutional Gap: How to Choose Among Unconstitutional Options

Justia columnist and Cornell law professor Michael Dorf comments on what may happen if the debt-ceiling deal that President Obama announced on Sunday, August 31, is somehow derailed—or if (as is almost certain to be the case) future Presidents face constitutional-law issues that are philosophically similar to the one President Obama may have narrowly avoided here. In discussing the debt-ceiling issue and its constitutional dimensions, Dorf describes the trilemma the President may face; raises the question whether the constitutionality of a measure must be an either/or proposition or if there are intermediate options of a measure's being, say, “very unconstitutional” or “a little unconstitutional”; and describes America’s historic hostility to balancing different constitutional values against one another.

Hawaii’s Battle Over Its Statutes of Limitations for Child Sex Abuse: Why the Legislature Was Right to Unanimously Vote for Reform, and Why the Governor Should Not Fulfill His Veto Threat

Justia columnist and Cardozo law professor Marci Hamilton comments on the situation unfolding in Hawaii with respect to the state's laws regarding statute of limitations for child sex abuse. As she explains, Hawaii's House and Senate each unanimously passed a bill that would create a two-year-long window of opportunity for child sex-abuse victims to file civil claims against their abusers, and against those who aided the abusers, even if the former statute of limitations had previously expired; and that would eliminate civil statutes of limitations entirely. But Hamilton – who has worked on the legislation with Sen. Maile Shimabukuro, abuse survivors, and others over the past year – notes that Hawaii governor Neil Abercrombie has issued a statement indicating that he will veto the bill. Hamilton takes strong issue with his reasons for doing so, and contends that he should change his mind.

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