The State of the Article V Convention Battle

David Super

     Yesterday I suggested that progressives should reconsider the wisdom of increasing the weight and impact of decisions made in the current political environment.  Although supported by only a small minority of progressives, efforts to call an Article V convention are the most dramatic efforts to raise the stakes.  They also are the most irresponsible. 

     Progressive proponents of an Article V convention initially insisted that a convention was essential to campaign finance reform.  This did not make much sense for several reasons, including the relative unpopularity of their vision of such reform with the public and the difficulty of devising politically plausible reforms that corporations and the ultra-rich could not readily evade. 

     Most significantly, a progressive outcome from an Article V convention is effectively precluded by the solid majority that the American Legislative Exchange Council (ALEC) and its allies would hold in such a convention.  The Center for Media and Democracy surveyed all fifty states’ laws and found that Republicans would have complete control over twenty-eight state delegations, Democrats would have complete control over eighteen, and four delegations would likely require both Republican and Democratic assent for their selection.  (Those states might prove unable to choose any delegates.)  Only one state – Rhode Island – provides for popular election of delegates.  We therefore would get a convention completely controlled by whomever the Republican legislative leaders of the various red states sought to send (most likely themselves) with no need to compromise, trade votes, or otherwise give progressives the time of day.  Even a blue wave election in November will not give Democrats a majority of the states and is highly unlikely to deprive Republicans of their majority. 

     Not surprisingly, then, the progressive Article V convention effort championed by WolfPAC has run aground.  It peaked in 2016 with just five states – all of them deep blue – and is now down to two states with active Article V applications. 

     Many progressives sensibly abandoned the project.  Those that continued to support a convention found themselves in a bit of a jam.  One response has been, in essence, “trust me”:  proponents insisting that they are confident that Republican domination of a prospective convention can somehow be overcome while not offering the barest hint of how that might occur.  With laws on delegate selection on the books and ALEC-aligned Republican majorities having no conceivable reason to change them, something more than “trust me” seems in order before the country takes to colossal gamble of opening up its fundamental document to amendment by moneyed interests. 

     Indeed, even if all the ALEC-aligned legislatures miraculously saw the light and amended their laws to allow popular election of delegates, it is far from clear that progressives would prevail.  The twenty-sixth-most-liberal state is probably North Carolina, which has a solidly Republican legislature and Republicans winning most state elections.  Several more-liberal states (such as Arizona, Georgia, New Hampshire, and Wisconsin) also have Republican legislatures while still more (such as Maine, Michigan, Minnesota, Nevada, and Pennsylvania) remain very competitive for Republicans.  Progressives would have to run the table of these states’ delegations unless they could turn one or more even more conservative states, such as Florida or Iowa.  A convention would be a progressives’ nightmare.  (Many progressives sensibly oppose one-state-one-vote rules for a convention, but those rules benefit many more states than they hurt.  Some progressives hope that the convention will agree to require a supermajority to act without offering any plausible reason why Republican legislators would voluntarily surrender control, least of all in today’s bare-knuckled political environment.)

     Perhaps recognizing the implausibility of the “trust me” approach, progressive convention proponents are increasingly declaring that an Article V convention is inevitable so progressives might as well accept that and start preparing for it:  “the convention is likely coming regardless and disengagement only guarantees progressives have no voice in the process”.  Both halves of this claim are problematic.  It is far from clear what “preparation” progressives could do now that would meaningfully affect what an ALEC-controlled convention might do.  I have heard no concrete suggestions. 

     And ALEC’s ability to trigger a convention without progressive collaboration is highly dubious.  To be sure, it has been spending prodigious sums promoting an Article V convention for many years.  (The figures below include various groups promoting a convention for a balanced budget amendment, groups affiliated with the Convention of States Project (CoSP), and those promoting a convention to enact congressional term limits.  They do not include any additional funds that ALEC may be spending directly.)

     Yet despite all that spending, the ALEC-aligned groups have stalled at 28 states, six short of the constitutional two-thirds threshold.  Over the past decade or so, ALEC-aligned groups claim to have secured Article V applications from all but three red states, but convention opponents have rescinded applications in every blue one.  With the purple states more or less evenly split, it is difficult to see a path for ALEC-aligned groups to get to 34 states honestly even under generous counting rules.  (The tallies presented here accept proponents’ calculations at face value; the continued viability of applications passed over four decades ago, and some state-specific aggregation and interpretation issues, will be for Congress to resolve if proponents start to move a resolution to call a convention.  The designation of states below as “purple” is admittedly subjective, relying primarily on elections for state offices.) 

     ALEC’s allies began reaching a similar conclusion around 2017 as the last of the blue state applications from the 1970s and 1980s were being rescinded.  They therefore started developing increasingly far-fetched versions of “fuzzy math” to reach the threshold.  They tried arbitrarily designating applications passed over a century ago for entirely different purposes as “plenary”, supposedly seeking a convention on any topic.  They claimed to have six such ancient applications in states that had rejected their proposals.  Five of those six have now been rescinded. 

     One prominent voice in the ALEC-aligned world argued that Congress should disregard states’ rescissions of Article V applications under the doctrine of “mistake”.  He argued that states acted in response to what he regards as misconceptions about Article V, such as concern about a “runaway convention.”  Few others embraced this idea, perhaps recognizing what a Democratic Congress might do with the power to override state legislation on the grounds of “mistake” (e.g., force Medicaid expansion under the Affordable Care Act).

     ALEC’s allies then insisted that all Article V applications should be counted, regardless of their purpose.  This would reverse Congress’s longstanding policy of counting applications together only when they specified the same purpose for a convention.  Had Congress followed the “all applications count” principle, we would have had an Article V convention in 1907 and every year since until 2025.  Over a century of wildly different Congresses rejecting this theory, and of states acting on the assumption that applications could only be aggregated if their purposes matched, casts this theory’s legitimacy into great doubt.  Nonetheless, several progressive states have responded by rescinding old, dusty applications.  At this writing, more than one-third of the states have no active Article V applications at all. 

     The ALEC-aligned groups now seem to have settled on the “time machine” theory.  Recognizing that they do not have the requisite two-thirds of the states today, they insist that, by retroactively applying their “fuzzy math” theories, they can say their forebears reached this threshold in 1979.  On this theory, numerous Congresses, including those led by ardent ALEC allies and ones with majority support for a Balanced Budget Amendment, have been asleep at the switch for almost half a century.  Of course, this means that the ALEC-aligned advocacy groups were also asleep at the switch for most of this time and that all their fundraising appeals to help them get the remaining states they need were, well, unfounded. 

     Supporters of an Article V convention to promulgate a balanced budget amendment, congressional term limits, or limitations on federal powers – the three core principles found in ALEC-aligned Article V applications – have filed litigation seeking to compel Congress to call an Article V convention on the “time machine” theory, to no avail.  They reportedly are preparing new litigation to the same effect.  How they will avoid the Political Question Doctrine, or establish that a federal court can order Congress to exercise its constitutional powers, is difficult to see.  And even if they could get heard on the merits, they have little basis for saying that Congress has been wrong for over a century in how it has counted Article V applications. 

     With its path to 34 states largely blocked and little prospect of prevailing in court, ALEC’s remaining hope depends on winning over just enough gullible progressives.  Progressive Article V groups have begun to work with ALEC-supported ones on the state level.  For example, they introduced a resolution in Maine that would apply for an Article V convention for both term limits and campaign finance reform.  A few years ago, a Democratic state senator gave ALEC a tie on an Article V application in Montana. 

     U.S. House Budget Committee Chairman Jodey Arrington has repeatedly introduced concurrent resolutions to call an Article V convention on the “time machine” theory.  Republicans lack the votes to move such a resolution on their own – one prominent House conservative wrote a book entitled The Con of the Con-Con – but might prevail if progressive proponents persuade a few Democrats that an Article V convention could be a good thing. 

     The cynicism of the ALEC-aligned convention supporters is difficult to overstate.  They insist that the risk of a runaway convention has been “debunked” and that a convention would somehow be confined to the purposes specified in states’ applications.  (They do not explain who would enforce these limits or on what authority.)  Yet they now propose to count together all applications for all purposes, including some that conservatives would loathe.  If the convention is allowed to consider any topic in a state application then world federal government is on the table.  Their mock conventions and fundraising appeals promote constitutional changes having nothing to do with fiscal responsibility, limiting federal powers, or term limits – such as capping the Supreme Court at nine justices or eliminating birthright citizenship. 

     Moreover, at the same time they insist that the ratification process will protect us against untoward amendments ALEC-aligned proponents seem to have settled on public referenda as their preferred ratification process.  This is not one of the options Article V provides, but apparently they envision the referenda being accompanied by the election of slates of state ratification convention delegates who would be legally bound to follow the results of the referendum, much as voters invisibly choose presidential electors.  ALEC’s ability to package superficially attractive but meaningless “progressive” provisions with core parts of its agenda, and the ability of its ultra-rich backers to flood the airwaves in advance of such referenda, should not be minimized.  I have yet to see progressive Article V convention supporters engage seriously with this threat.  

     In short, the long, difficult, exhausting effort to prevent ALEC from triggering an Article V convention that it would control has accomplished a great deal.  ALEC does not have a path to a convention that does not involve picking up almost all the purple states or securing Democratic defections in Congress.  If progressives recognize this threat for what it is, ALEC cannot prevail.  But if progressives wish-cast a convention as the solution to what ails us, they could mislead just enough state or federal Democratic legislators to bring this disaster down upon our already-reeling nation.

     @DavidASuper1 @DavidASuper.bsky.social

Facing the Fundamental Choice: A Stronger or Weaker Federal Administration?

David Super

      Barely a day passes when I do not see some new plan for an anticipated “restoration” after President Trump leaves office.  As 2029 approaches, I am sure we will see many more.  Alas, I have yet to see a plan that thoughtfully engages with what should be the most foundational question in this process:  do we seek a strong federal administration or a weak one?  Or, put another way, is the goal to strengthen majoritarianism or to protect minorities that the majority may wish to trample? 

     The right answer to this question depends on how anti-MAGA thinkers envision the future.  If they seek to empower future majorities and the party that controls the presidency and Congress, presumably they believe that they will hold majority power for the foreseeable future once Donald Trump passes – or at least that a stronger executive will allow them to build more than MAGA can destroy when holding the reins.  The goal of this strategy presumably would be to make it impossible for the Republican Party to dominate power until it moderates and rededicates itself to democratic values, much as voters made Democrats wander in the wilderness for twenty of the twenty-four years between 1968 to 1992 because they perceived the party as being too far left. 

     Alternatively, if anti-MAGA thinkers believe that control of the federal government is likely to alternate frequently, they should limit the powers of any majority and support devices that allow minorities to block actions harmful to them.  This would be particularly true if they believe that MAGA is more efficient at destroying than they are at building. 

     Of course, Democrats want to be a persistent majority and believe they should have the majority of the electorate’s support.  But neither of those is the question.  The question is one of prediction:  do MAGA’s opponents believe they actually will be the majority?  And, related, will they make maintaining majority electoral support their top priority?  If so, then plans like dismantling the filibuster and remaking the Supreme Court might make practical sense.  If not, those moves would be disastrous. 

     I see no reason to believe that Democrats will persistently hold a majority in years to come:  I am convinced that Donald J. Trump will not be the last president to seriously threaten this country’s democracy in the near future.  Further, I believe the liberal-progressive movement, as it currently stands, is structurally incapable of doing what is necessary to have a plausible chance of preventing another ruthless MAGA president from taking office.  I therefore regard progressive proposals to raise the stakes for elections as not just misguided but profoundly reckless. 

     To start, alternating control of the White House would continue an entrenched recent pattern.  Democrats have won half of the last two, four, six, eight, and ten presidential elections.  The last Democrat to secure 53% of the popular vote was Lyndon Johnson over sixty years ago; in the intervening years, Republicans have surpassed 53% three times.  Although some progressives like to point to President Trump’s relatively low popular vote totals, in both 2016 and 2024 extremely conservative candidates won about 51% of the vote while candidates on the left took 49%; the two elections differed primarily as to which coalition was more fractured.  Even with the economy staggering and hundreds of thousands dying as the Trump Administration fumbled its response to the pandemic – failures that would have obliterated a Democratic candidate – President Trump still received almost 47% of the vote in 2020.

     To be sure, President Trump is quite unpopular now, but he will not be on the ballot again.  And his deep unpopularity has not translated into corresponding support for Democrats:  at this writing, only 38% of voters think well of Democrats compared with 55% hostile to them.  That is all but indistinguishable from Republicans’ 39% to 56% unfavorability rating.  This is not the stuff of which dynasties are made. 

     The purification of the Democratic Party has come at a cost.  For the first time in memory, Democrats hold no Senate seats from the 25 most conservative states.  Republicans hold three seats from the 25 most liberal states (Maine, Pennsylvania, and Wisconsin) and hence control the Senate.  The only consistently unreliable Democratic senator, Pennsylvania’s John Fetterman, won his primary against a representative with a solid voting record on the strength of progressive enthusiasm. 

     But current unpopularity is far from the biggest reason to think that Democrats will not be able to keep MAGA Republicans out of power.  The Establishment and Progressive Wings of the Democratic Party would do well to adopt the Gingham Dog and the Calico Cat as their mascots.  Each seems to view the marginalization of the other as a necessary predicate step to battling Donald Trump.  Neither shows much willingness to accept that, with the country almost evenly divided between Left and Right, defeating MAGA Republicanism is only possible if both moderates and progressives enthusiastically engage.  If either faction is vanquished, both will be vanquished. 

     To keep MAGA from regaining the reins of power, Establishment Democrats need to stop freaking out when progressive constituencies elect progressives.  And to keep MAGA from regaining the reins of power, Progressive Democrats need to stop endangering seats in purple or red constituencies by applying purity tests to candidates there.  Both need to stop supporting awful people just because they mouth their faction’s affirmations.  

     Although we may disagree about which positions so alienate moderates that they will cost the Party votes, it defies reality (and a vast political science literature) to insist that no such positions exist.  Similarly, although we may disagree about which positions are so denigrating to the value of human life that they will alienate progressives and cost the Party votes, it defies reality (and the everyday experience with people who have been insulted) to insist that no such positions exist. 

     Yet Democrats lack any workable mechanism to discuss together which positions are too electorally toxic and to discourage those in the relevant faction from weighing the Party down with those positions.  Instead, any reticence by Establishment Democrats is attacked as betrayal – likely causing some progressives to withhold their votes – while any complaints about denigrating statements are denounced as attempts at “political correctness” – likely alienating some moderates. 

     If they regain power, Democrats naturally will want to implement their program.  Parts of that program are broadly popular, but parts definitely are not.  They likely can afford to pursue some unpopular initiatives, but if they launch too many they will lose too many voters.  Conversely, if they slavishly follow the polls rather than ever leading, they will disappoint progressives and lose voter turnout in the next election.  Rather than being reflexively bold or reflexively timid, they must prioritize carefully.

     Alas, Democrats also lack a workable mechanism for prioritizing their coalition’s initiatives to avoid alienating too many voters at once.  Indeed, a great many progressives refuse to acknowledge that such trade-offs exist They fail to see that the middle- and long-term consequences of enacting multiple deeply unpopular measures at once can be devastating for vulnerable people, such as the immigrants and low-income people targeted when voters sweep MAGA back into power.  Conversely, many Establish­ment Democrats seem to reject any initiatives that lead voters out of their comfort zones, condemning the Party to always playing from behind and losing the enthusiasm of the many low-engagement progressive voters. 

     Compromises are the life blood of coalition politics.  Alas, compromise is largely infeasible with loud voices condemning any concessions “betrayal.”  Many progressives’ fierce objection to the Build Back Better Act, which would have been the most transformative social legislation in at least a decade and perhaps half a century, shows the near-impossibility of crafting compromises that do not split the Party.  And the constant denunciation of deals for what they do not include persuades low-information voters that Democratic officeholders are hopeless and not worth voting for. 

     All these problems might be remediable if the leaders of the various factions could negotiate definitive deals.  Unfortunately, neither major faction has leaders who can and do command broad deference.  Establishment Democrats have Minority Leaders Schumer and Jeffries, but neither has demonstrated, or even sought, the authority to commit their faction to compromises.  Progressives have even less deference to leaders:  Sen. Sanders did negotiate a common program with nominee-apparent Biden in 2020, but neither he nor Representative Ocasio-Cortez have made any regular practice of seeking deals with Party leaders.  In practice, because many progressive social media influencers’ click-rates, and incomes, depend on raising hyperbolic criticisms, any progressive leaders attempting such negotiations would likely pay a high reputational price. 

     This is not to say that the Democratic factions can never come together to defeat the MAGA threat to our country.  They did in 2020 when, led by African-American primary voters in South Carolina, they nominated a career politician with a thoroughly uninspiring record.  But the infrequency and brevity of these truces demonstrate that far too many Democrats see intra-party warfare, and advancing their policy programs even at great electoral risk, as more pressing than definitively defeating MAGA’s threats to our country’s core principles and the well-being of vulnerable people at home and abroad.  We are, for example, a far cry from the Hungarian progressives who cleared the field for non-Orban conservatives to end their country’s sixteen years of creeping authoritarianism or the Chileans who united behind a moderate conservative to end Pinochet’s rule. 

     As long as defeating MAGA remains only a conditional or intermittent priority – and in particular as long as the two main factions remain determined to subjugate one another in the pursuit of wholly unrealistic general election strategies – we will keep getting MAGA presidents and MAGA Congresses.  And because the second Trump Administration has clearly demonstrated that destroying programs and institutions is far easier and faster than building them, any accomplishments Democrats may achieve during their brief interludes in power will be extremely fleeting.  Democrats will not get far with any plans that depend on selling the trustworthiness of our federal government to other nations, to potential grant recipients here or abroad, or to prospective federal employees that do not want to suffer what hundreds of thousands did over the past year and a half.  This country elected Donald Trump twice; unless we can show a fundamental change in the structure of our politics, nobody is going to believe this was merely a fluke.

     We seem well on our way to an eight-year cycle in which Democrats have broad control for two years, a Democratic president is hobbled by one or both chambers of Congress for another two years, a MAGA president has broad control for two years, and the MAGA president remains in power but lacks a solid congressional majority for the final two years.   This cycle is becoming self-reinforcing.  Democrats’ brief intervals of control create a classic Tragedy of the Commons with every Democratic interest group demanding enactment of a maximalist version of their agenda in the brief moment when that is possible.  The result is too-much-too-fast for many low-information centrist voters, and the midterm elections are a disaster. 

     Programs Democrats pass in their two years of dominance will barely be getting organized when a Republican Congress begins to starve them of resources and MAGA legal groups sue to block their implementation.  The programs will have accomplished little by the time the next MAGA president eliminates them.  Democrats can enact civil rights, environmental, and consumer protection laws during their ascendancy; by the time those laws take effect and violations can be investigated and prosecuted, the Democratic president’s term will be about half-over.  Many violators’ appeals likely will not be exhausted before the next MAGA president pardons them.  Little will have been accomplished.  By contrast, the lives ruined or ended during MAGA administrations will not somehow be restored when that president leaves office. 

     Even if one is certain that Democrats can dominate national politics if (fill in the blank) “progressives stop taking extreme positions” or “the Establishment fights more vigorously”, it is obvious that neither group is going to change its stripes anytime soon.  Until we are collectively willing to choose a moderate but stable regime that negotiates progress among pro-democratic factions, and until we develop a viable process for resolving Tragedy of the Commons conflicts when Democrats are in power, the current boom-and-bust cycle will continue.  And while it does, all plans should focus on protecting political minorities and limiting the power of transitory majorities – even though Democrats will sometimes be in that majority. 

     @DavidASuper.bsky.social @DavidASuper1

What Roberts didn't say in the birthright citizenship case

Andrew Koppelman

Freedom of Expression After Trump v. Slaughter

Guest Blogger

Daniel Browning

The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi, the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar, the Court held that a Colorado law banning “conversion therapy” did not survive strict scrutiny, at least as applied to “talk therapy.” And in National Republican Senatorial Committee v. Federal Election Commission, the Court struck down restrictions on a political party’s ability to spend on campaign activities in coordination with candidates for office. While these cases are significant in their own right, the most important free speech case of the Court’s 2025 term may not be a First Amendment case at all.

In Trump v. Slaughter, the Supreme Court dealt a final blow to Humphrey’s Executor, a long-standing precedent that insulated some agencies from presidential control by affirming Congress’s power to place removal protections on certain non-inferior officers. In so doing, the Court explicitly endorsed a strong version of the Unitary Executive Theory, under which the President must be permitted to fire at will most—but not necessarily all—non-inferior officers wielding executive power. The constitutional theory underlying the Unitary Executive Theory is grounded in a structural reading of the Vesting Clause and Take Care Clause of Article II. And its underlying political theory is animated by the thought that the power to fire non-inferior executive branch officers at will ensures officers are accountable to the President, who is, in turn, accountable to the people.

Slaughter’s most immediate and direct impact will be an expansion of presidential control over the administrative state. But underappreciated in the public discourse thus far is Slaughter’s likely downstream implications for freedom of expression. Today, as more and more discourse occurs on intermediated platforms, the government often aims to censor disfavored speech by “jawboning,” namely, by pressuring an intermediary who hosts or supports the speech to silence the speaker itself. When the government jawbones, it typically does so by promising to reward the intermediary with regulatory carrots, as in N.R.A. v. Vullo, or by threatening it with regulatory sticks.

The strong Unitary Executive Theory endorsed in Slaughter is likely to supercharge government jawboning of disfavored expression. Every instance of discretionary regulation creates an opportunity for regulators to reward political allies and punish political enemies. At-will removal creates a massive incentive for officers to marshal their regulatory discretion in a way that promotes the President’s agenda, that is, in a way that rewards the President’s allies and punishes her enemies. Where job tenure depends on fealty to the President, the officer, quite literally, puts her job on the line any time she regulates in a manner the president disfavors. Where speech increasingly is intermediated by massive conglomerates who are subject to discretionary government regulation on numerous fronts, we have a very big problem indeed.

After Slaughter, then, we should expect to see more regulators using their offices to target expression the President disfavors. But this is not the only problem. When it becomes a matter of common knowledge that regulators will use their discretion to further the President’s agenda, sophisticated firms will become more wary of hosting any expression the President opposes, lest they draw regulators’ ire. This sort of “voluntary” self-censorship is problematic not only because it restricts freedom of expression but also because it is practically impossible to challenge in court.

That is why it’s so baffling that Justice Gorsuch suggested in his Slaughter concurrence that a unitary executive would help limit government jawboning. After lamenting the broad powers Congress had granted to agencies, Gorsuch cited FCC Chair Brendan Carr’s recent jawboning of Jimmy Kimmel as an example of an agency making use of this unfettered power.

In light of the huge jawboning incentive created by a unitary executive, it’s difficult to even make sense of Justice Gorsuch’s suggestion. As I see it, the most plausible version of the Gorsuchian story is that government officials will jawbone less because they will be accountable to the President for their jawboning, who is in turn accountable to the people. Unfortunately, this story breaks down at both levels of accountability. The President is the one who most stands to benefit by officials jawboning the President’s opponents, so it’s unlikely that mere accountability to the President will do anything to tame jawboning by agency officials.

More plausible perhaps is the idea that the people themselves penalize the President at the ballot box for any government jawboning. While it’s true that public pressure on corporations and government officials can be an important source of countervailing power to resist government jawboning, the ballot box is a poor mechanism for holding the President accountable for jawboning. Even if we grant that people care enough about freedom of speech to factor jawboning into their vote, a vote for President in a two-party system bundles so many different policy preferences together that it’s highly unlikely jawboning is an issue that could ever be electorally decisive. Moreover, because officials of both political parties will have incentives to jawbone after Slaughter, voters may not even have a choice between a pro-jawboning and anti-jawboning candidate.

Even if the ballot box could be a real check, absent a statute that ensures jawboning transparency, such as the recently-proposed JAWBONE Act, voters would lack the information requisite to hold the President accountable for jawboning in the first place. As Justice Sotomayor observed in Vullo, when “a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Free speech scholars and civil society organizations have long called for greater transparency surrounding government communications with intermediaries, but Slaughter makes jawboning transparency more important now than ever. 

Daniel Browning is a PhD candidate in Politics at Princeton University and a recent graduate of Yale Law School. You can reach him at daniel.browning@yale.edu.

Celebrate this Fourth (or Fifth) of July by Putting Frederick Douglass in Your Syllabus

Guest Blogger

Alec Ewald

The best way to celebrate this Fourth of July is to open your draft syllabus and put Frederick Douglass in it. Particularly if it’s a draft con law syllabus, but Douglass goes with anything.  (I’m a political scientist, and wouldn’t presume to tell actual law professors what to do – but actually, I kind of would.  I think this will be valuable in your classrooms too, and at least one purpose-built casebook features Douglass.)

Plan to read, with your students, two things: his 1852 speech “What to the Slave is The Fourth of July,” and his 1860 speech “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”  I did these first as optional, dropped in alongside required readings.  But over a couple years, the discussions were too good, and too many students said later in course evals that these were among the most memorable and valuable things they’d read. So now it’s a day.

You should try it.  Let me make the case, and since it’s summer, I’ll do it in the most reader-friendly setup – a simple list – and start with the practical bottom line.

Wasserman is right

Andrew Koppelman

Howard Wasserman observes, on Prawfsblawg, that my recent National Affairs essay, “The First-person Appeal of Free Speech,” neglects to call out contemporary impulses toward censorship emanating from the right.  My piece begins by describing an episode where University of Illinois at Chicago Prof. Jason Kilborn was punished for merely referring to racist episodes on the left, and mentions some other demands for speech restrictions from the left.

Wasserman writes:  “Based on these examples, one would conclude that the sole (or at least paradigmatic) threat to free speech remains the lefty sophomore at Bard complaining about racism. Not universities firing faculty (at the behest of complaining students) who say bad things about Charlie Kirk posthumously. Not universities firing faculty and shutting down departments (whether at the behest of students or under threat from state and federal government) over teaching about race, gender, and the existence of trans people. Not universities suspending students (upon the federal government threat of losing funds) for engaging in political protest that objectors decry as antisemitic or who protests speeches by government officials pursuing bad policy. Not the federal government seeking to deport students for engaging in political protest that objectors decry as antisemitic or anti-American.”

He’s right about the political skew.  It wasn’t intended.  The National Affairs essay is an abridged version of “Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person,” forthcoming soon in the Journal of Free Speech Law.  I cut too much, without noticing the misleading impression this would create.  Here are some paragraphs that were deleted in the abridgement (footnotes omitted):

This pathology spans the political spectrum.  Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools – and, in ten of them, in state universities - of “divisive concepts,” among them that anyone “should feel discomfort, guilt, anguish, or any other form of psychological distress” on account of his or her race or sex.  There happen to be uncomfortable facts that implicate these identities – notably, that white people enslaved black people for centuries.  The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear.  Teachers fearing for their jobs have been “avoiding lessons that discuss people who are not heterosexual, white, Christian, or American.”  Books dealing with race, gender, or sexual orientation have been purged from school libraries.  Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.

In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics.  These statutes typically forbid them to “teach, instruct, or train” anyone “to adopt or believe any divisive concepts,” and declare that this does not forbid impartial teaching.  But these formulations don’t work.  One faculty member explained:

I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?

The normal imperatives of teaching now compete with a mandate that there are some ideas that students – even college students - are too frail to be exposed to.

Some of this should have been in the National Affairs version.  Stay tuned for the full article.

The First-person Appeal of Free Speech

Andrew Koppelman

Power of the Purse V: How Transformations at the National Level Threaten Federalism

David Super

     In four recent posts, I explained how President Trump is seizing large parts of the Power of the Purse from Congress and how this has led to restructuring within Congress, the Executive Branch, and the courts.  In general, those in each branch adept at bipartisan problem-solving have been sidelined in favor of those that are either hyperpartisan themselves or at least unwilling to moderate the President’s hyperpartisanship.  In this final post in this series, I examine how the new, presidentially driven federal Power of the Purse is seriously undermining federalism. 

     I have the utmost respect for the work of Heather Gerken, Jessica Bulman-Pozen, and others describing how states led by the party out of power in the national government may leverage federalism to provide an effective opposition.  We certainly have seen plenty of that since President Trump has resumed office.  My focus here, however, is the reverse.  Rather than considering how oppositional states may force moderation in federal policy, I consider how the President, having seized a sweeping Power of the Purse, may force states to moderate their opposition to his policies. 

     Presidential abuses of the Power of the Purse have been little litigated for the simple reason that the Power of the Purse has resided with Congress.  When federal agencies have reduced states’ funding, it generally has been pursuant to specific statutory directives.  Courts have afforded federal agencies Chevron deference in interpreting those statutes but have not suggested broader federalism concerns are in play. 

     The Supreme Court’s innovations in federalism jurisprudence over the past few decades largely have focused on Congress’s intrusions on states’ prerogatives:  selecting public officials, participating in spending programs offered by the federal government, allocating staff time, and general policymaking.  Cases restraining federal courts’ intrusions on state courts’ jurisdiction are somewhat older. 

     The President’s seizure of the Power of the Purse has opened up a new and far more dangerous threat to states’ sovereignty.  The Court’s concern about fiscal coercion of the states – either from conditions tangential to the nature of the federal funding put at issue or from the enormity of the federal funding at stake – has involved legislation enacted by a Congress in which every state is represented.  Perhaps federalism needed an additional boost from the Court, but the affected states were not entirely defenseless.

     The Trump Administration’s actions threatening or cutting off funds flowing to Democratic states operates independently of any congressional action.  The states that it has targeted most – California, Colorado, Illinois, Minnesota, and New York – contributed no electoral votes to President Trump in any of his campaigns.  None is likely to be decisive in the 2028 presidential election.  He has little political reason to refrain from abusing those states.

     By contrast, all five have Republican representatives who might well resist voting for legislation targeting their home states.  If any one of the five states’ Republican delegations defected, hypothetical funding cut-off legislation could not pass the House.  None of the five target states has a Republican senator, but the frequent need for supermajorities in the Senate makes senators leery of incurring the personal enmity of senators feeling that their state is being singled out. 

     The Administration has made little effort to conceal its punitive partisan motives.  It issues angry press statements about errors, but as a district court noted Thursday “[a] generous reading of the record provided to this Court falls far short of the type of proof which might substantiate the government’s sweeping claims of fraud.”  Its vitriolic denunciations of Minnesota appear to depend entirely on an abuse of pandemic feeding programs that occurred under the first Trump Administration and that was caught and prosecuted under the Biden Administration.  (President Trump deserves no blame for the scandal nor does President Biden deserve credit for the arrests and prosecutions – attributing the routine actions of career civil servants to presidents is deeply deceptive – but the Administration insists on playing that game, which does not reflect well on it.) 

     Data in the two largest programs affected confirms that the Administration’s actions are entirely partisan.  The Department of Health and Human Services measures Medicaid improper payments in about one-third of the states each year.  Two of the Administration’s target states were in the set released this winter:  Illinois had an overall improper payment rate of 1.2% while Minnesota had an overall rate of 2.2%.  By contrast, Idaho’s improper payment rate was 6.1%.  Some blue states that have been less vociferous in opposing the Administration’s policies also had improper payment rates well above those of Illinois and Minnesota. 

     Data from the Supplemental Nutrition Assistance Program (SNAP) tells a similar story.  The payment error rates the Administration released last summer showed two of the target states meaningfully above the national average, one of them almost right around the national average, and two others meaningfully below the average.  By far the highest error rate was Alaska’s, which was more than double that of four of the five target states.  Red Florida and Georgia both also had higher error rates than any of the target states and yet have escaped the abuse the Administration has heaped on its perceived enemies. 

     This is not normal.  During the late 1990s, Texas’s Food Stamp Program had egregious problems:  a high error rate, precipitous declines in participation among eligible working poor families, and some pretty clear violations of federal law.  The Clinton Administration was well aware of these problems but refused to do anything lest its actions be seen as an attempt to embarrass Governor George W. Bush, whom it thought might run for president. 

     The flexibility and relative invisibility of the President equip him to coerce states far better than Congress can.  The President’s effective ability to close programs and interrupt federal funding without congressional approval allows him to buy bits of states’ sovereignty retail.  President Trump purported to pardon Colorado County Clerk Tina Peters from her convictions for tampering with voting machines despite having no such authority over state crimes.  When Colorado declined to release her, the Trump Administration closed an important federal laboratory in Colorado as well as reportedly threatening other federal installations in Colorado and waging its campaign against the state’s funding in human services programs.  Governor Polis relented and commuted Ms. Peters’s sentence.  Whether or not President Trump was holding “a gun to the head” of Governor Polis, his weaponry proved sufficient for the task.   

     Whatever one thinks of Ms. Peters’s conviction – the fact that she was charged and convicted in a deeply conservative county suggests that her actions were far beyond the pale – this is a massive transfer of sovereign power.  When the President can use federal tax dollars to buy the states’ sovereign pardon power, and to effectively legalize violations of states’ election laws, we are well down the road to subordinating states fully to the federal administration.  You can continue to rattle on about your Buffalos or your Golden Gophers, much as Brits fixate on Arsenal or Manchester United and Egyptians obsess about Al Ahly or Zamalek, but the President will get his way on anything he really cares about. 

     Actions of the other two branches of the federal government have facilitated this growing fiscal dictatorship.  Many of the spending cuts in last summer’s One Big Beautiful Bill Act came in the form of large shifts in the costs of Medicaid and SNAP to the states.  (These cuts are difficult to reconcile with Republicans’ image as the party of states’ rights.)  We are already seeing dramatic participation drops in SNAP and likely will see something similar in Medicaid when the most destructive provisions take effect after the midterm elections. 

     These cuts seriously weaken states’ finances, making them more vulnerable to the President’s fiscal threats.  They also raise the question of whether the Administration will fully implement the cuts against states that accommodate the President by praising his initiatives, by turning over confidential information contrary to law, and by adjusting their election laws to his liking. 

     The Supreme Court, too, has hampered states’ abilities to defend themselves.  In April 2025, it held that states lack the irreparable injury required to obtain prompt restoration of federal funds if they can afford to continue the programs in question.  Three months later, it held grantees that cannot afford to pay the cost of a program cannot get funds promptly restored because the federal government likely would not be repaid if it ultimately won the case.  So whether the funding stream is large or small, and whether the state is flush or hard-pressed, the President can withhold federal funds and potentially make the state wait years for the funds to which they are entitled under federal law. 

     With almost all states required to balance their budgets annually, this leaves them with little option.  Ironically, if the President’s blundering with Iran causes a recession, his leverage over states will grow even more.  This threat to states’ sovereignty is vastly greater than those addressed in the Court’s prior federalism jurisprudence.  And a willful President can do far more harm to a state’s finances than a federal court hearing challenge to a state agency’s violation of federal law. 

     Deep Throat told Woodward and Bernstein to “follow the money.”  That is also good advice for those fearing the loss of our democracy.