In this fifth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone discuss severability in a larger context and explain why, in their view the majority and minority positions are partly right and partly wrong. The authors conclude that if the Court invalidates and enjoins the individual mandate, it should reject the challengers’ substantive express inseverability claim that the entire ACA remainder should be enjoined.

Cornell law professor Michael C. Dorf argues Trump’s actions during his final months are different from those of past presidents, and particularly dangerous. As Dorf explains, Trump is aiming to do damage for its own sake, whereas other lame-duck presidents have at least sought to advance policy aims in pursuit of some conception of the common good.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—describes how President Trump’s pardons reveal his “superficial and distorted” understanding of American values. Professor Sarat points out that for someone who claims to value the clemency power, President Trump has granted clemency fewer times than any President since William McKinley, who served from 1897 to 1901, and when Trump has granted clemency, he has used it to reward people whose crimes show their contempt for the rule of law.

Cornell law professor Joseph Margulies describes a recent piece of hate mail he received from someone who apparently saw him quoted in an Associated Press article about what a Biden administration might mean for the 40 remaining prisoners in Guantanamo. Professor Margulies explains that he can forgive the writer because he knows the writer’s rant most likely comes from a place of psychological and cultural insecurity, but at the same time he also holds the writer accountable for his behavior.

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Kansas Supreme Court holding that a woman who conceives through artificial insemination and her same-sex partner can both be deemed the legal parents of any resulting child born during their relationship under the Kansas Parentage Act, even if the couple has not entered into a co-parenting agreement. Grossman explains the facts of the case and the court’s reasoning, and she explains why the court effectively balanced the rights and interests of the two women.

Illinois law dean Vikram David Amar and professor Jason Mazzone describe the increasing importance of courts and lawyers in safeguarding and reinforcing the role of factual truths in our democracy. Dean Amar and Professor Mazzone point out that lawyers and judges are steeped in factual investigation and factual determination, and they call upon legal educators (like themselves) to continue instilling in students the commitment to analytical reasoning based in factual evidence, and to absolutely reject the notion that factual truth is just in the mind of the beholder.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, explains why the rhetoric about a “decline” in religious liberty actually signals a decline in religious triumphalism, and is a good thing. Professor Hamilton describes how religious actors wield the Religious Freedom Restoration Act (RFRA) not as a shield, but as a sword to destroy the lives of fellow Americans.

In light of recent news that Pfizer and Moderna have apparently created safe and effective vaccines against COVID-19, Cornell law professor Michael C. Dorf considers whether the government can mandate vaccination for people who lack a valid medical reason not to get vaccinated. Dorf briefly addresses issues of federalism and religious objections to vaccination and then addresses the question whether mandatory vaccination might be inconsistent with a right to abortion.

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman explain the important role of Democratic governors in preventing Republican state legislatures from stealing the election. Sarat and Edelman describe a “nightmare scenario” in which Republican legislatures may try to strip the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, leaving Biden with 232 electoral votes compared to Trump’s 306. The authors call upon the governors of those states to defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.

Cornell law professor Michael C. Dorf comments on the third challenge to the Affordable Care Act (ACA) that has made it before the U.S. Supreme Court, and considers how the case will play in the upcoming Georgia runoff elections. Dorf argues that absent a dramatic and highly unusual development—like a Supreme Court decision rejecting the ACA challenge in the next few weeks—that should help the Democratic candidates in Georgia’s runoff elections.

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

UF Levin College of Law professor and economist Neil H. Buchanan explains why President Trump’s inept handling of the COVID-19 pandemic should disqualify him from even running for reelection, let alone returning to office. Buchanan argues that it is shocking that we cannot predict the outcome of the 2020 election in light of Trump’s failure to address the biggest health crisis in a century and his consistent efforts to undermine the public response every step of the way.

SMU Dedman School of Law professor Joanna L. Grossman describes the myriad ways the Trump administration has harmed the interests of women and expresses hope that the outcome of the 2020 Presidential Election will mark the end of the GOP’s war on women. Grossman notes that if Biden and the Democrats win the White House and Congress, they will have not only the opportunity but the obligation to restore what the modern GOP has destroyed.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, explains why federalism—the autonomy of the states in our country—has been a significant barrier to many of the authoritarian projects Trump has advanced or considered. Falvy argues that the same autonomy should prevent Trump from manipulating the election results decisively in his own favor.