The Problem of "Popular" "Sovereignty"

JB

From Status to Function

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Douglas NeJaime

In Marital Privilege, Serena Mayeri masterfully shows how challenges to the legal centrality of marriage—and to a specifically heterosexual, gender-differentiated view of marriage—only partially succeeded in altering the content of marriage and its relevance to legal rights and obligations. Ultimately, courts credited claims, particularly on behalf of women and same-sex couples, that made marriage itself a more inclusive and egalitarian institution. But courts rejected claims, particularly on behalf of single parents and poor women of color, that would have reduced marriage’s role in channeling benefits to families. As Mayeri shows, challenges to the understanding of marriage that pervaded law and policy in the mid-twentieth century changed the content of marriage in important ways but, in the end, left marriage’s primacy intact.

For all the distinctions between the regulation of marital and nonmarital life that Mayeri meticulously analyzes, there is a striking continuity that Marital Privilege surfaces. Both inside and outside marriage, to varying degrees, the law shifted away from formal, categorical, status-based regulation toward functional regulation. As advocates for this functional approach argued, the law should treat spouses, partners, and parents “based on what they did rather than who they were.” (p. 81) Across the book, Mayeri unearths a rich array of functional approaches that arose to meet the challenges that confronted marriage and its privilege status. Although scholars have identified and analyzed functional approaches in various settings, Mayeri’s work to synthesize these approaches across domains is novel and important. And it has significant implications for debates raging today over the wisdom of adopting functional standards to address nonmarital couples and parent-child relationships.

Marital Supremacy, Liberalization & Privilege

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

William N. Eskridge Jr. 

In Marital Privilege (2025), Serena Mayeri documents many of the ways that the American law of marriage was transformed between 1960 and 2000 (and somewhat beyond). Earlier scholars have demonstrated how the extensive liberalization of family law was accompanied by policies channeling relationships into what policymakers and most citizens have considered socially productive forms, primarily marriage.[1] In the new millennium, demographers have shown that marriage remains popular among well-to-do and professional couples but is declining among lower-income and working-class couples.[2] Critical scholars have argued that the many discriminations against nonmarriage are constitutionally or normatively wrong and have criticized the disparate racial and income effect of what Melissa Murray calls “nonmarriage inequality.”[3] Building upon and adding to this scholarship, Professor Mayeri argues that the “marriage supremacy” regime holding sway in 1960 had by the new millennium collapsed and had given way to a legal regime of “marital privilege” (pp. 6, 112, 318) that, obviously, benefits the “Haves” in our society and, less obviously, often harms the “Have Nots” (pp. 316-18).[4] This new, discriminatory regime has been challenged by many progressive lawyers and their clients, but largely without success in court.

The Administration’s Self-Created Inability to Make a Deal

David Super

     Throughout Anglo-American history, various kinds of people have been incapable of entering into legally binding contracts.  This has included enslaved persons, married women during the coverture era, children, and persons deemed to lack mental capacity or otherwise under the control of others.  In each case, the inability to contract has been understood as quite debilitating.  Courts upholding aggressive freedom-of-contract regimes have insisted that the ability to enter into enforceable contracts is key to gaining wealth and power. 

     It therefore is remarkable that the Trump Administration has worked so hard to render itself incapable of entering into enforceable deals.  Its inability to enter into binding contracts with private businesses, non-profits, and state and local governments – the result of its so-far successful insistence that it may cancel any contract merely because its policy preferences have changed – will have profound implications for the provision of public services for decades to come.  Its self-created inability to enter into binding agreements with foreign governments – e.g., casually casting aside trade agreements, including ones it negotiated – will significantly curtail this country's ability to get its way in world affairs.  And, most immediately, its self-created inability to enter into binding agreements with Members of Congress may prevent an agreement to prevent a partial government shutdown after September 30. 

     The latter effect is not widely understood.  Since taking office, this Administration has impounded – simply refused to spend – several hundreds of billions of dollars Congress has appropriated for the current fiscal year.  A few of these impoundments the Administration has publicly announced.  The great bulk of them have been done quietly, without complying with the procedures required under the Impoundment Control Act (ICA). 

     Indeed, the Administration endeavored to conceal the extent of its impoundments by brazenly violating a statute requiring it to make public the “apportionment” decisions transmitting appropriated funds to federal agencies.  When the D.C. Circuit finally compelled it to release its apportionments, they turned out to be chock full of restrictions on spending wholly unauthorized by statute that effectively made it impossible for funds to be spent.  Among these were a requirement that agencies seek the Office of Management and Budget’s approval for a “spending plan” prior to obligating funds, giving OMB a vehicle for interposing more obstacles undisclosed to Congress or the public.  By law, apportionments are only supposed “to prevent obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation”.

     The Administration’s demonstrated unwillingness to abide by appropriation laws makes a deal to prevent a government shutdown on October 1 exceedingly difficult.  When temporary appropriations expired in March, Republicans refused to negotiate a new bill with Democrats.  Instead, they simply tabled a bill of their own that purported to continue programs’ funding at prior levels.  It did not:  it shifted several billion dollars from other programs into the Administration’s priorities.  Democrats nonetheless supplied the votes necessary to enact the legislation because this seemed the best way to protect funding for important programs. 

     Since then, however, the Administration has repeatedly disregarded funding levels in the legislation that it wrote.  It turns out, then, that enacting the Administration’s bill did not, in fact, protect funding for key domestic and international programs.  In addition, the request the Administration submitted in June to rescind funding from international programs and public broadcasting clawed back billions that had been a significant part of why Democrats voted for the legislation.  Although Democrats’ ability to filibuster gives them leverage over the passage of appropriations bills, the ICA prevents filibusters and so allows rescissions to pass on party-lines votes. 

     Thus, the Administration has created a situation in which any promises of funding it makes to achieve bipartisan agreement on appropriations bills are utterly unenforceable:  it can either rescind the money on a party-lines vote or simply ignore the appropriations altogether.  We can hope that the courts eventually will enjoin the Administration’s impoundments, but to date they have thrown one obstacle after another in the way of challengers – reinforcing the sense that, even if codified in law, the Administration’s promises are effectively unenforceable. 

     Lest anyone doubt its intentions, the Administration recently released dramatic revisions in OMB Circular A-11, a venerable (and heretofore mostly unremarkable) document setting out the Administration’s understanding of the rules for formulating and implementing budgets.  Among other things, the new A-11 declares that the Administration may disregard the ICA for “delays in obligations or expenditures [to] change the scope or design of existing programs, or develop policies concerning program implementation to align with Administration policy.”  It also declares that the Administration may freeze appropriated funds for 45 days merely by submitting a request for rescission to Congress even if the funds will lapse before those 45 days expire.  (This is the “pocket rescission” theory that finds no support in the text of the ICA and raises serious constitutional concerns.) 

     Thus, the Administration may simply sit on funds for most of the year under the guise of reworking the program “to align with Administration policy” and then submit a formal rescission request to Congress at the end of the year.  If Congress approves the request, the funds are rescinded; if Congress rejects the request or simply fails to act, the funds lapse.  Either way, the appropriation accomplishes nothing for the people it was intended to help.  Thus, Democrats have no reason to believe that the numbers in the appropriations bill for which they vote will mean anything in the real world, especially if they exceed the amounts in the President’s budget proposal. 

     At the moment, Republican leaders are refusing to negotiate with Democrats, bowing to President Trump’s wishes.  They may intend to present Democrats with another take-it-or-leave it bill as they did in March. 

     It is too early to predict if Democrats would vote for a short-term continuing resolution to prevent a shutdown on October 1:  a host of political, legal, and technical factors affect when is the best time for a confrontation.  But Democrats should not regard any concessions they receive in full-year appropriations bills as meaningful unless those bills include concrete measures both to prevent President Trump from impounding the funds and to prevent Republicans from rescinding on a partisan basis funds that were approved on a bipartisan vote. 

     One vehicle for doing this is an amendment that Oregon Senator Jeff Merkley proposed to make the ICA inapplicable to spending for federal fiscal year 2026 (apart from the ICA’s language disavowing any interpretation that curtails rights under other laws).  Superficially, abandoning the ICA may seem strange.  The ICA, however, is a law seeking to protect Congress’s institutional prerogatives, and neither congressional Republicans nor the D.C. Circuit have given those prerogatives serious weight.  The current Comptroller General has shown no appetite for suing to enforce the ICA even as he chronicles the Administration’s ICA violations, and he is about to be replaced by a Trump appointee. 

     Absent a clear indication of the Supreme Court’s willingness to respond to the Administration’s abuses of the law, the ICA is best set aside to simplify and expedite litigation.  This would focus attention on the Administration’s violations of statutes authorizing programs and appropriating funds for them.  The Court unanimously found such laws binding in Train v. City of New York in 1975. 

     Without this or some other measure improving the enforceability of appropriations acts and blocking partisan rescissions, no deal will be worth the paper on which it is written.  As many businesses can tell you, negotiating contracts with someone lacking the capacity to make binding commitments is a fool’s errand.

@DavidASuper.bsky.social @DavidASuper1

Understanding the Roots of Today’s Marital Inequality

Guest Blogger

Promoting Equality and Marriage

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Julie C. Suk

The “Transformation of American Law” that drives Serena Mayeri’s monumental book, Marital Privilege, is the shift from marriage as the supreme distributive mechanism across various areas of law towards marriage as a mere privilege within legal regimes that continue to distribute unequally, though less so.  This “transformation,” as Mayeri tells us in the book’s conclusion, was not of the seismic shift variety; it was a “preservation through transformation” of the oppressive inequalities produced by marital supremacy (p. 324). Through an impressive synthesis of Supreme Court decisions, legal scholarship, and the archives of litigants, lawyers, judges, and social movement actors from the 1960s to the present, Marital Privilege explains how and why laws benefiting marriage and the marital family still contribute causally to the material disadvantage of poor, Black, immigrant, and other disfavored people.

Selective Service and Illegal Aliens

Gerard N. Magliocca

I did not realize until today that male illegal aliens in the relevant age range are required by federal law to register for Selective Service (in other words, the draft). I don't know how many actually do register, but this requirement strikes me as rather interesting in the context of the birthright citizenship debate. I'll mull that over and elaborate down the road. 

The State of Impoundment Litigation Now

David Super

     The past few weeks have gone a long way toward framing the key questions that will decide whether the Trump Administration’s massive impoundment effort succeeds where President Nixon’s failed.  This post surveys what we have learned.

     At the outset, we must divide impoundments into three distinct sets.  First, the Administration has stopped payment on billions of dollars that were already obligated through numerous programs.  This has occurred primarily through the purported cancellation of grants and contracts.  Some of these have involved efforts the Administration dislikes, such as combating climate change; others appear to have been eliminated more or less randomly when they caught the eye of an ignorant twenty-something empowered by Elon Musk’s Department of Government Efficiency (DOGE). 

     The second and largest set of impoundments involve refusals to obligate and spend money Congress has appropriated for a wide range of programs.  Here again, sometimes the impoundments’ motivation is clear; often, it appears utterly capricious.  An Administration that targets the Enola Gay for promoting gender identities is capable of anything. 

     Finally, the smallest set of impoundments are those for which the Administration partially followed the procedures in the Impoundment Control Act to seek Congress’s permission.  After unlawfully impounding the funds for many months – in violation of the Act’s requirement that the President notify Congress at the time he determines that he does not want to spend moneys – he finally followed the Act’s procedures in June, sending up a rescission request that congressional Republicans largely rubber-stamped.

The Staying Power of Marriage Inequality

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Kimberly Mutcherson

Serena Mayeri’s meticulously researched book, Marital Privilege, traces the history of the shift from marriage supremacy to marital privilege in the U.S. through the many legal cases that shaped the marriage landscape from the 1960s into the 2000s . She shows the extent to which marriage is a legal transaction as much as (perhaps sometimes more than) an expression of love and devotion between two people. It shapes the lives of people who marry and equally shapes the lives of people who opt not to marry or who cannot marry. While acknowledging significant victories along the way, Mayeri traces how movements have relegated many of the most egregious elements of marriage supremacy to the dustbin of history (anti-miscegenation laws), but she also reveals how marriage still reigns as a most favored legal status for people who build lives together, especially if they have children. She reminds us of how marriage law encourages conformity in family structure, incentivizes preferred behaviors (childbearing only when married), and protects government coffers by privatizing the costs of care.

There is incredible richness in Mayeri’s book, far more than I can cover for purposes of this symposium, so I want to highlight a few themes that I found particularly powerful while reading the book and that strike me as especially pertinent for those committed to a more egalitarian future for family building in the United States. The first theme is the consistent throughline of family, reproduction, and parenting as sites of sustained racial oppression in the U.S. In a time when efforts to erase and distort history flow from the highest ranks of government, the enduring relationship between marriage law, white supremacy, racism, patriarchy, and wealth accumulation cannot be underplayed.

Balkinization Symposium on Serena Mayeri, Marital Privilege

JB

This week at Balkinization we are hosting a symposium on Serena Mayeri's new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

We have assembled a terrific group of commentators, including Bill Eskridge (Yale), Clare Huntington (Columbia), Kristin Collins (Michigan), Solangel Maldonado (Seton Hall), Kimberly Mutcherson (Rutgers), Doug NeJaime (Yale), and Julie Suk (Fordham).

At the conclusion, Serena will respond to the commentators.

National Conference of Constitutional Law Scholars -- Call for Papers

Andrew Coan

The Rehnquist Center at the University of Arizona's James E. Rogers College of Law is pleased to announce the eighth annual National Conference of Constitutional Law Scholars. This year’s event will be held at the Westin La Paloma Resort & Spa in Tucson on March 6–7, 2026. The March weather should be beautiful, and the resort has breathtaking views of the Santa Catalina Mountains as well as the city lights below at night, with many outdoor recreational opportunities nearby. 

As in previous years, there will be a series of panels organized by subject matter moderated by Distinguished Commentators. The program will also include several break-out “lightning sessions,” in which participants deliver short, no-paper presentations on early-stage projects followed by group discussion. The conference schedule will include plenty of time for informal conversation and outstanding food.

Mila Sohoni (Stanford) will give a keynote lecture. Distinguished commentators for 2026 include:

— Daniel Epps (Washington University in St. Louis) 

— Sherif Girgis (Notre Dame)

— Deborah Hellman (Virginia)

— Mark Tushnet (Harvard) 

— Mila Versteeg (Virginia)

— Chris Walker (Michigan)

All constitutional law scholars are invited to attend. 

A full CFP, including submission and registration instructions, can be found here. 

Making Policy Based on Falsehoods: The Federal Government vs UCLA

Joseph Fishkin

No Ordinary Opinion Announcement

Gerard N. Magliocca

Next Term, the Supreme Court will rule on the legality of the Administration's tariffs. This will be a market moving event, to say the least. Elsewhere I've pointed out that the usual practice of issuing merits decisions at 10AM without notice will be a disaster for this case. The Court should either give notice of the decision day or do what amounts to the same thing by scheduling the announcement before or after market hours.

The precedent here is the Gold Clause Cases. At a certain point after argument, the Court scheduled an opinion day and announced that those opinions would not be coming out that day. When the next opinion day was scheduled, they made no such announcement. Thus, everyone knew that the decision was coming then. The Court should follow that example or something comparable in this unusual situation.

A Grand Jury Will Not Indict a Thrown Ham Sandwich

Gerard N. Magliocca

I was surprised to learn that a federal grand jury in Washington DC declined to indict on a felony charge the DOJ employee who threw a sandwich at a federal agent. This suggests that there is a potential limit on the Administration's ability to enforce its "crime emergency" policies in the District.

The grand jury requirement of the Fifth Amendment remains unincorporated. Perhaps examples like this will cause people to rethink that exception, which is hard to justify on anything other than a modern belief that grand juries serve no valuable purpose in protecting innocent people or preventing overcharging by prosecutors. 

What *are* the legal questions at issue in Trump's purported removal of Lisa Cook from the Federal Reserve Board?

Marty Lederman

Casebooks, Canons, and Constitutional Memory

JB

Sandy Levinson and I have uploaded a draft of our latest essay, Casebooks, Canons, and Constitutional Memory, to SSRN. Here is the abstract:

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course.

Editing a casebook involves the construction of a canon. The canon in literature is organized around  great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution.

There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements.

Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand.

Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content.

The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important.

At most, by placing certain materials before professors and students,  casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control.

Where Impoundment Litigation Stands after NIH v. APHA

David Super

      For months, those challenging the Trump Administration’s massive impoundment of appropriated funds have been left to try to divine deep meanings from cryptic orders on the Supreme Court’s shadow docket.  Now, in National Institutes of Health v. American Public Health Association, we have important if incomplete answers about one important branch of impoundment litigation.  This post seeks to put NIH v. APHA into context and anticipate next steps in this kind of litigation.  I will leave the legal merits of the Court’s disposition for others to assess. 

      The Trump Administration’s impoundments can be divided into three categories.  First, it has sought to cancel or ignore legal obligations the federal government has already assumed.  Second, it has refused to obligate appropriated funds.  And third, it proposed a package of proposed rescissions to Congress under the Impoundment Control Act and received a largely favorable action under the ICA’s expedited procedures.  Although billions of dollars are at stake in each category, the second is by far the largest. 

      The impoundments in NIH v. APHA were in the first category:  already obligated funds.  The issues in the second category (funds withheld prior to obligation) are quite different and therefore will see only modest effects from this decision.

Trump Has Found a Cruel New Way to Attack Trans Veterans

Andrew Koppelman

The D.C. Circuit’s Tangled Impoundment Decision

David Super

       On August 13, a panel of the U.S. Court of Appeals for the District of Columbia Circuit handed down an opinion on President Trump’s impoundment of foreign assistance funds.  This case is significant because it is the first one squarely raising the legality of impoundments per se, as opposed to deficient reasons for impoundment, to reach an appellate court.  Unfortunately, the case arrived in a rather confused posture, and the panel’s opinion added considerably to that confusion.  Because this case is likely to draw considerable attention, it merits close analysis.

      Two sets of plaintiffs sued to overturn the President’s impoundment of billions of dollars of foreign assistance funds.  Between them, the plaintiffs raised ten claims, no two of which are truly duplicative.  As is commonly true in such cases, some of these claims were much stronger than others.  The district court chose to engage with, and grant preliminary relief on, some of these claims while declining to address the others as unnecessary to support its order.  Unfortunately, the claims with which the district court engaged were not the best. 

      The case therefore arrived in the D.C. Circuit with the better claims against impoundment not clearly presented for decision.  The Government threw in some theories for the first time in its reply brief, which the court allowed, and then the court itself added to confusion by saying it was going to analyze one claim and then proceeding to analyze another, far weaker, one.  The result is so tangled that future courts and litigants will likely be able to secure scant guidance from the panel’s opinion (or, indeed, from the dissent, which is confined by the same tangled framing).

Parody or Reality? You Decide

Gerard N. Magliocca

August 11, 2025

Jarrett B. Perlow

Clerk of the Court

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

Re: Rule 28(j) Letter in V.O.S. Selections, et al. v. Trump, et al., Nos. 25-1812, 25-1813 – Pertinent and Significant Authority Arising Since Our Briefs Were Filed

Dear Mr. Perlow:

On July 27, after stating his intention to impose IEEPA tariffs, President Trump announced the largest trade agreement in history with the 27-nation European Union, America’s most significant trading partner. See Alex Gangitano, Trump, EU’s von der Leyen strike trade deal for 15 percent tariffs, The Hill (July 27, 2025). President Trump entered historic agreements with Indonesia, the Philippines, and Japan on July 22; and with the United Kingdom on May 8.

These agreements support our request for a stay if the Court affirms. Opening Br.5, 54-60; Reply Br.27-30. Suddenly revoking the President’s tariff authority under IEEPA would have catastrophic consequences for our national security, foreign policy, and economy. The President believes that our country would not beable to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin. Other tariff authorities that the President could potentially use are short-term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries.

There is no substitute for the tariffs and deals that President Trump has made. One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again. If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.

These deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money. If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.

Sincerely,

D. John Sauer

D. John Sauer

Solicitor General

/s/ Brett Shumate

Brett Shumate

Assistant Attorney General