Saturday, February 18, 2017
Crisis? What Crisis?
Friday, February 17, 2017
Would a Parliamentary System Stop Trump?
The United States has a presidential system. That means that once a president is elected, he or she stays in office for four years, barring death, disability, resignation, or impeachment. The 25th Amendment allows for the Vice President and the Cabinet to displace a president who is unable to perform the duties of his or her office, but we have not yet seen that particular mechanism work in operation to determine how well it would operate.
Wednesday, February 15, 2017
Departmentalism, Judicial Supremacy, and Trump
Tuesday, February 14, 2017
Reciprocal Legitimation in Response to President Trump
In Reciprocal Legitimation in the Federal Courts System, I offer an account of the relationship that the Supreme Court may forge with most lower federal courts in response to perceived threats to the public legitimacy of the federal judiciary. I suggest that a three-stage process of reciprocal legitimation helps explain the path from Brown v. Board of Education to the subsequent per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges.
The 25th Amendment Option: Law and Politics
Monday, February 13, 2017
More on Constitutional Crisis
Over at Vox, Dylan Matthews has a nice round up of the literature on constitutional crisis, constitutional hardball, and constitutional showdowns. All the experts that Matthews interviewed agreed, as I had suggested in a previous essay, that we are not currently in a constitutional crisis, although it might happen at some point in the future if President Trump refuses to obey a direct judicial order.
Not A Suicide Pact. Sad!
Gerard N. Magliocca
You are probably familiar with the line that "The Bill of Rights is not a suicide pact." This phrase is sometimes invoked to justify restrictions of civil liberties in the interests of national security and comes from Justice Robert H. Jackson's dissent in Terminiello v. Chicago, a 1949 case in which the Court held that the First Amendment prohibited the conviction of a speaker for "breach of the peace" because his political comments led to angry protests at the event he was addressing. Justice Jackson stated: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
Saturday, February 11, 2017
Does Jason Chaffetz understand his job?
Michael McConnell on Washington v. Trump
The bulk of commentary from legal academics on President Trump's Executive Order concerning admission of non-citizens into the United States has involved creative advocacy rather than useful analysis. Michael McConnell's new column is a very welcome exception. Its careful, balanced, cool-headed discussion makes it the best thing written so far on the complex legal and political issues. Essential reading.
Balkinization Twitter Feed is at @BzationBlog
Our twitter feed is now live at @BzationBlog.
Friday, February 10, 2017
Standing Up for “So-Called” Law
Why the Ninth Circuit's Ruling on Trump's Travel Ban EO is So Important
On Thursday, the U.S. Court of Appeals for the Ninth Circuit issued its per curiam ruling in Washington v. Trump denying the government's request to stay the district court's order enjoining provisions of President Trump's Executive Order temporarily suspending travel to the United States for refugees and various other noncitizens (including legal permanent residents and visa holders). In short, the Ninth Circuit held that the states (Washington and Minnesota) had standing and met the requirements for a preliminary injunction (styled a temporary restraining order in the district court).
Thursday, February 09, 2017
Will the United States Survive the 2016 Election: A continuing series
A Republican member of Congress has suggested that the behavior of oppositional Democrats is reminiscent of pre-1860 America. As I have suggested earlier, along with recommending David Armitage's just published book on the history of civil war as a concept, the country is indeed increasingly in a psychological situation that suggests the possibility of civil war. When "polarization" becomes active fear and even hatred of the domestic Other, then it is hard to see how "a more perfect Union" or "domestic Tranquility" can easily be preserved. I find it wholly unsurprising, therefore, and indeed have also suggested this earlier, that secessionist movements that have been treated basically as a joke (or dismissed as simply crazy) may be taking on a genuine political valence in California. One thing that can be said in favor of secession is that, at least on occasion, it is a mechanism for peaceful separation. See, e.g., Norway's separation from Sweden in 1905 or Slovakia's divorce from Czechoslovakia (or, for that matter, the usually ignored peaceful secession of Slovenia from Yugoslavia). Once the "mystic chords of memory" fade, as is true of marriages where early infatuation develops into sullen resentment and then an active desire to leave a relationship of what divorce law used to call "irreconcilable conflict," why not accept dissolution?
Wednesday, February 08, 2017
The difference between 20th and 21st century consumer protection
The problem of 20th century consumer protection: A coke bottle explodes in your face.
The Deference Arguments
Sometimes The Judges Have the Butter
Gerard N. Magliocca
The President's comments about "so-called judge" who put a hold on the immigration executive order and the "disgraceful" stuff he heard in the Ninth Circuit's oral argument yesterday brings to mind the following story. (Judge Gorsuch must tremble every time the President tweets these days.)
Tuesday, February 07, 2017
How to tell if you are in a constitutional crisis
Because Donald Trump is very unpopular, and because he is doing things that his opponents consider outrageous, his critics have begun to use the term "constitutional crisis." Sandy Levinson and I wrote an article about constitutional crises in 2009. What follows is a brief explanation of the term and why it is so likely to be misused.
Monday, February 06, 2017
If Liberals Knew Themselves Better, Conservatives Might Like Them Better
The standard liberal positions on free speech, religious neutrality, and atheism all reflect their religious origins. Because American secular liberalism and American religious conservatism have a common ancestor, it is possible for liberals to describe aspirations that have more in common with the religious, and thus more rhetorical power, than the arguments that they now tend to offer.
Friday, February 03, 2017
Destroing the civil service: An essential step toward entrenching our constitutional dictatorship
Philip Howard, a lawyer who hates lawyers, has published a piece in the Wall Street Journaltitled "The President's Right to Say 'You're "Fired.'" (The article is behind a paywall, but the link is to another site that includes the relevant text.) As one might expect from the title, it calls, basically, for the repeal of all existing civil service protection for federal workers in the name of the vaunted "unitary executive" and the tendentious reading of Article II that requires that the President be allowed to fire any and all federal employees he doesn't care for. (To be fair to Howard, he does suggest that the existing system of protections, dating back to 1886, be replaced by a "new civil-service framework [that] is fair-minded and respectful."
Thursday, February 02, 2017
Oppose the President’s Refugee Order? Don’t Leave its Repeal Up to the Courts