Monday, September 25, 2017
And, Right on Cue...
Sunday, September 24, 2017
Free Speech on Campus
The State of "Our Democracy" -- Sitting in for Sandy Levinson
Wednesday, September 20, 2017
The Senate's latest health care proposal: Once again, it's all about the tax cuts
The Graham-Cassidy proposal currently before the Senate looks different than the House ACHA and Senate BCRA bill in one important respect. It does not eliminate most of Obamacare's taxes. ACHA and BCRA were little more than a tax cut for wealthy donors disguised as a health care bill. By contrast, Graham-Cassidy appears, on its face, to keep taxes in place and to strike a blow for federalism.
Monday, September 18, 2017
The Pluralist Model of Speech Regulation: Free Speech in the Algorithmic Society
Sunday, September 17, 2017
Thursday, September 14, 2017
How to understand what is happening in American politics today: My lecture at Indiana on "The Recent Unpleasantness"
On Wednesday I gave the Addison C. Harris Lecture at the University of Indiana Mauer School of Law in Bloomington on "The Recent Unpleasantness: How to Understand the Cycles of Constitutional Time."
Wednesday, September 13, 2017
Will Congress fund the Census?
The latest post that my wife Cynthia and I have put up on www.faultlinesintheconstitution.com concerns one of the few affirmative duties placed on Congress: to make sure that an adequate census is conducted every ten years in order to assure the fair representation of the states, at least taken as a whole, in the House of Representation (with consequences, of course, for the Electoral College). Needless to say, in the 21st century, the census itself has become a matter of partisan dispute, and the Republican Congress seems averse to funding the 2020 Census, which must start its organization now. And, just as needless to say, our administratively-challenged President seems uninterested in appointing a new Director to the Census, even though the modern census is crucial not only for purposes of representation but also for administering the modern welfare state that Steve Bannon wishes to deconstruct. The devil is in the details, and the Census is a really important detail, in every respect.
Saturday, September 09, 2017
Is Trump Finally Pivoting? Understanding the Deal with the Democrats
President Trump struck a deal with Congressional Democrats to suspend the debt ceiling and pay for Harvey relief. Speaker Ryan, Senate Leader McConnell, and almost all of Trump's advisors wanted an 18 month debt ceiling suspension, which would expire after the 2018 elections. Instead, Trump ignored them and struck a deal with Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi.
Thursday, September 07, 2017
The Debt Ceiling Charade
Many Americans who don't understand the appropriations process misunderstand how the debt ceiling works. They assume that Congress passes a law that authorizes the Treasury to borrow up to a certain amount, and that when this amount is passed, Congress passes another law that authorizes the Treasury to borrow up to a certain larger amount, and so on. They assume, in other words that the debt ceiling is what gives the Treasury the power to borrow, and that without the debt ceiling, the Treasury couldn't borrow anything at all.
Wednesday, September 06, 2017
Repeal the Debt Ceiling. Now.
Congress is once again facing the possibility of stumbling into an economic catastrophe if it fails to raise the debt ceiling by the end of this month.
Wednesday, August 30, 2017
Presidential identity and neutral principles
Mark Graber and have just put a new co-authored paper up on SSRN. It will come out next year, suitably revised to take account of feedback, in a symposium on presidential power to be published by the Chapman Law Review. In it we argue that academic (and other) writing on executive power adopts the "neutral principles" approach so (in)famously posited by Herbert Wechsler some sixty years ago, when he used his analysis to explain why Brown v. Board of Education was basically indefensible. Wechsler's analysis was obtuse inasmuch as he resolutely refused to recognize that Jim Crow represented a subversion of the constitutional order, a "fraud on the Constitution,: Footnote Four of Carolene Products can be read as arguing that the new "normal," after the New Deal, of maximum deference and "minimum rationality," should be suspended in special circumstances. We agree, and one of these circumstances is a basically dangerous president. Most analysis of executive power, however, refers to an abstract, reified "president," and the assumption is that all presidents, from Washington to Trump, are equal. If we'd allow Washington or Lincoln to do X, than Trump can do it, too. Conversely, if we would limit Trump's power, we have to reconsider any similar actions by any of his predecessors.
Tuesday, August 29, 2017
Scenes from a Disjunctive Presidency
Monday, August 28, 2017
Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president
This morning I posted a lament, at the Democracy Journal, that our Constitution does not include a procedure for firing a dangerous president via a vote of no confidence by Congress. (Although I don't discuss it there, I'm also open to the project of a national recall election, but that is obviously more problematic than a congressional solution.) Given that I have been a critic of the Constitution now for over a decade, I am often ask what my number one criticism is (given that I have so many). Inevitably the answer shifts, depending on the great issues of the moment. But right now, at least, I have little hesitation saying that the main defect is that we are confined to talking about impeachment and invocation of the 25th Amendment, each of which presents specific difficulties, and that we have no way of putting pressure on our ostensible representatives to vote no-confidence in a scoundrel. Perhaps the biggest advantage of such a procedure would be that lawyers would be only minimally involved, unlike impeachment, where we are guaranteed to have shouting arguments about lots of basically irrelevant issues, including original intent and the original meaning, public or otherwise, of "high crimes and misdemeanors."
Monday, August 21, 2017
The Lost Cause, Trumped
I can think of only one positive thing to say about the coming out party for white nationalists that all of us are now witnessing, and it is this: in their own uniquely nasty way, these people do seem to be inadvertently helping many Americans gain a clearer-eyed understanding of what the Civil War was about.
Tuesday, August 15, 2017
John Bingham on Racial Equality
Gerard N. Magliocca
Let's focus for a moment on an actual hero of the Civil War era--John Bingham. Here's what the drafter of Section One of the Fourteenth Amendment said at a campaign rally in 1867:
If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?
Mark Tushnet suggests that there's a very straightforward way of looking at Christie v. NCAA--namely, as what he calls a federal "preemption" case that can be resolved by ignoring New Jersey law and simply recognizing that the sports gambling in question is prohibited by federal law. Mark's perspective on the case--what he himself describes as an "unbearably simple-minded" view--might well be right. It's not clear, however, what should follow in the case if he is right.
Anticommandeering, Preemption, and the Common Law: The PASPA Case
Monday, August 14, 2017
Our Unconstitutional Reapportionment Process
Gerard N. Magliocca
This is the title of my new draft paper, which is available here. Here is the Abstract:
ACS Junior Scholars Public Law Workshop - call for papers
Last year, the American Constitution Society hosted its first-ever Junior Scholars Public Law Workshop. It went so well that we are doing it again this year, at the 2018 AALS Annual Meeting in San Diego. The deadline to submit a paper is October 18, 2017. It's open to anyone who has been a full time law teacher for 10 years or less.
Sunday, August 13, 2017
Robert E. Lee Was a Horrible Racist
Gerard N. Magliocca
The myth of Robert E. Lee as the "Noble Confederate General" is not unlike the myth of Erwin Rommel as the "Noble Nazi General." After a war is over, there has to be some reconciliation between former enemies, and one way to do that is by picking someone on the losing side as a heroic warrior unsullied by what the war was actually about.
Defining Racism Downwards
Monday, August 07, 2017
Are we really a Union?
As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews). Our latest addresses the extent to which the United States was a "nation" in 1787. The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade). As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such.
Sunday, July 30, 2017
Is the Republican Effort to Destroy the ACA Dead?
No. That question can be asked from a procedural perspective,
a political perspective, or a practical perspective, but in each instance the
answer is “no”. This post takes each of
these points of view, explores the possible future of the Republicans’ efforts
against the ACA, and identifies the markers that would actually mean that the
assault on the ACA is finished.