Tuesday, February 19, 2019
Congressional Responses to Emergency Declarations
How the Supreme Court Wrecked the System Congress created for Declaring Emergencies
Over at the Lawfare blog, I've posted this essay, which elaborates on a point Gerard Magliocca flagged on this blog: The National Emergencies Act as originally enacted permitted the two Houses of Congress, acting jointly, to veto any presidential declaration of emergency. The Supreme Court's 1983 decision in INS v. Chadha, which held such legislative vetoes unconstitutional, eliminated this feature of the Emergencies Act.
Monday, February 18, 2019
Labor and Constitutional Political Economy
A growing number of us in the legal academy are talking about political economy and its relationship to law. There’s a sense of community among us and a sense of change afoot. There’s even, inevitably, a blog. But what is the relationship between LPE and constitutional law? In a series of articles and our forthcoming book, The Anti-Oligarchy Constitution, my coauthor Willy Forbath and I argue that an authentically American tradition of constitutional argument centers on a particular set of claims about constitutional political economy. We argue that it would be good for Americans to extend this long-submerged tradition and to recognize the deep connections between it and a number of arguments taking flight in our current politics.
Saturday, February 16, 2019
Or Blame Congress
Gerard N. Magliocca
Here's a different take on my prior post. After Chadha, Congress could have done nothing to the National Emergencies Act. Then the Act would have been unconstitutional, as there would have been a good argument that the legislative veto provision invalidated by Chadha was not severable from the rest of the Act. Or Congress could have rewritten the Act to narrow its scope given that a declaration was now harder for Congress to repudiate..
Thursday, February 14, 2019
Gerard N. Magliocca
With the President on the brink of declaring a national emergency, let us briefly review how we got here. In the National Emergencies Act of 1976, Congress provided that such a declaration could be rendered null and void by a joint resolution of Congress. Subsequently, the statute was amended to say that such a resolution must be signed by the President or enacted after a congressional override. That makes a BIG difference. If the original standard were in place, there is a good chance that the President would not be doing this now and, if he did, would be repudiated by Congress.
Tuesday, February 12, 2019
BDS and Masterpiece Cakeshop
Monday, February 11, 2019
Resisting Gloss's liquidation
In recent years, legal scholars have become increasingly attentive to the constitutional role played by historical governmental practice in discerning the Constitution's separation of powers. Theories of “historical gloss” in particular have highlighted the role of historical practice and attempted to situate it within constitutional theory. The U.S. Supreme Court, in recent decisions, has also emphasized such practice. Although it is easier to accommodate a role for post-Founding practice within non-originalist approaches to constitutional interpretation, some originalist scholars, most recently Will Baude, have also sought to take account of at least some of that practice, under the label “Madisonian liquidation.”
Medicare for All: A Time for Honesty
E. Kent Yucel
Thursday, February 07, 2019
Would the Pain-Capable Unborn Children Protection Act Be Constitutional?
Gerard N. Magliocca
In November, a Federal District Court in Michigan held the Prohibition of Female Genital Mutilation Act of 1995 unconstitutional. The Court reasoned, in essence, that the Supreme Court's decisions in Lopez and Morrison meant that this sort of local activity could not be regulated by Congress pursuant to the Commerce Clause or any other enumerated power. This was true even though the case involved a prosecution of doctors who were paid to do the procedure by a family. While states were free to ban the practice, the federal government could not.
Monday, February 04, 2019
Are we in an unrecognized constitutional crisis?
The term "constitutional crisis" is much bandied around these days. Jack and I wrote an article about a decade ago offering some quite stringent conditions for a genuine "constitutional crisis" to exist, and he has argued that its use during the Trump presidency has been misleading. He and I might slightly disagree on the main point, for I do believe that the failure of the Constitution to provide an alternative to the clearly inefficacious mechanisms of the Impeachment Clause and the 25th Amendment to get rid of a president in whom we deservedly have no confidence at all in matters of war and peace, life and death, or, for that matter, keeping the country together in some semblance of "domestic tranquility," may serve as evidence why the Constitution itself is the crisis at present.
Sunday, February 03, 2019
Regulating Social Media -- my talk at the University of Virginia
Friday, February 01, 2019