A Different Approach to War Powers Regulation

David Super

     Whatever one thinks of the merits of President Trump’s attacks on Venezuela and Iran, and his threats against Greenland, they certainly sound the death knell for Congress’s constitutional right to declare war.  Over several decades, that power has deteriorated both through congressional authorizations of military action falling short of traditional declarations of war and through presidential military actions wholly lacking in congressional approval. 

     Non-declaration declarations of war, such as the Gulf of Tonkin Resolution and the Authorization for the Use of Military Force, may be enacted before Congress knows that a full war will ensue.  One may question whether the scope of the wars that followed was appropriate without further congressional approval, but at least those wounds to Congress’s powers were self-inflicted – and partially ratified through military appropriations. 

     Presidential actions wholly lacking congressional approval are a more direct threat.  Presidents initially justified them as defensive and minor, although President Obama’s bombing of Libya was clearly neither.  President Trump’s choices to seize Venezuela’s oil and (vile) president, to kill Iran’s (monstrous) Supreme Leader, and possibly to conquer Greenland’s territory, certainly are neither defensive nor minor.  Yet under our current practice, Congress was not involved in the first two and likely would not be consulted – because it surely would not consent – on any attacks on Greenland. 

     Presidential war-making was one of several serious separation of powers problems addressed at the end of the Nixon Presidency.  The War Powers Resolution, like the Impoundment Control Act that dates from the same period, has proven inadequate for our hyper-partisan realpolitik era.  If President Trump retained enough Republican support for an attack on Greenland to sustain a veto in either chamber of Congress, the War Powers Resolution provides no way to stop him.  Eventually a government shutdown might deprive the invasion force of funds, but by then enormous, lasting damage would be done.  (For example, at present the military is fully funded, needing no affirmative congressional action, for the next seven months.)  We need to consider how we might do better.

     The fundamental problems hampering the War Powers Resolution’s design spring from Congress’s difficulty in acting quickly.  This matters in two settings.  First, where military action is urgent, the consensus was that Congress could not be relied upon to act quickly enough to authorize necessary action.  That led to language effectively permitting the President to act unilaterally.  And second, where military action is unwise, Congress cannot timely stop the President, particularly if it lacks two-thirds majorities to override a veto.  Thus, presidents – or at least presidents who are willing to make false findings of exigent circumstances and who dominate their political parties – can make war as they please and veto any efforts to restrain them. 

     Resuscitating congressional control over warmaking therefore requires a reliable mechanism for Congress to act more rapidly.  The ideal mechanism would be a bipartisan constitutional amendment empowering a special committee of Congress to act quickly on presidential requests to exercise military force.  With recent presidents of both parties having defied congressional prerogatives with war-making that the other party opposed, this might be feasible if it was made effective only for future presidents. 

     But something similar also should be possible even without such an amendment. 

     The easier case is when Congress is in session.  Each chamber could adopt rules aggressively expediting procedure to consider requests to authorize military action.  Such rules already exist for a variety of special situations.  For example, the Congressional Review Act specifies the text of a joint resolution of disapproval and therefore prohibits amendments.  The CRA grants committees twenty calendar days to act and senators on the floor ten hours to debate, but those limits could be truncated severely.  The CRA also prohibits other dilatory tactics. 

     A greater challenge is how to handle crises arising with Congress away, whether for a weekend or an extended period.  Some state legislatures address this sort of problem by empowering special committees, but INS v. Chadha makes clear that Congress may only exercise external power through bicameralism and presentment.  And Article I, section 5, specifies that a majority of each chamber is a quorum. 

     In some instances, convening a majority of each chamber virtually may be possible, as was allowed during the coronavirus pandemic.  Republicans objected, but at least some might feel differently if an urgent matter of national security was at stake.  This cannot be the only option, however, because some attacks could disrupt communications so thoroughly to preclude a virtual meeting. 

     For those limited cases, the rules of the House and Senate could forbid quorum calls.  This is not without precedent.  Both chambers continue the British parliamentary tradition of assuming the presence of a quorum unless and until it is established to be lacking.  House Rule XX.5 establishes procedures by which a quorum of the House may be based on the number of Members available, rather than the total number elected, in case of a natural disaster, attack, pandemic, or similar catastrophe.  A similar procedure, limited to authorizations of military force but with accelerated timelines, could be established for both chambers to act on presidential requests for authorization to apply military force.  Various other House precedents prohibit quorum calls under particular circumstances, and the “special rules” under which important legislation is often considered may prohibit quorum calls.  Similarly, Senate Rule XXII.2 allows only one quorum call once the Senate has voted to invoke cloture (cut off debate); as it stands, once that quorum call is held, senators are free to scatter.  Thus, the practical difference between one quorum call and none is limited.  The Senate also sometimes prohibits quorum calls by unanimous consent.  Indeed, Rule VIII of the first Senate’s rules, and the comparable rule in the first House of Representatives, appear to have limited when motions to ascertain the presence of a quorum could be raised.

     Quorum requirements, of course, serve important purposes, among them increasing balance and accountability.  These concerns could be addressed by limiting expedited floor procedures to authorizations of military action reported out favorably by special committees of each chamber established for that purpose.  Party leaders could rotate those committees’ memberships throughout the year to ensure that it always contains Members staying in Washington and ready to convene quickly if the need arises.  These special committees would become part of the continuity of government architecture and would have high quorum requirements to prevent the majority party from excluding the minority.  Measures enacted under these special procedures could be time-limited so that the full Congress would have to be persuaded before the country became too bogged down in a conflict.    

     Once provision has been made for Congress to quickly authorize appropriate military action, Congress could enact much stronger prohibitions against action without congressional authorization.  Congress would likely still need to provide some standing authorization for responses if hundreds of nuclear missiles are detected coming over the North Pole, but the presence of an expedited congressional process would allow those exceptions to be drawn very narrowly, without vague, manipulable language such as the “in every possible instance” requirement of the War Powers Resolution that President Trump casually disregarded. 

     In practice, Congress might choose to enact some conditional authorizations of war-making.  These, however, could be narrowly and objectively drawn to curtail bad faith adventurism. 

     None of this addresses a President willing to disregard these procedures and arrogate Congress’s constitutional prerogatives.  But having a viable mechanism by which Congress could be consulted would prevent presidents from claiming adherence to the Constitution was effectively impossible.  And being able to say with a straight face that the President must always obtain congressional approval for military action could allow Congress to enact other measures, such as an automatic cut-off of appropriations for unauthorized military action and civil forfeitures for participating contractors, that could force presidents either to comply or to embrace open lawlessness.

     Finally, any military action not covered by a declaration of war should require a presidential certification to Congress under penalty of perjury that the terms of a legislated exception apply.  Should such a certification prove false, as several have been in the past and as any certification concerning Greenland would be, that would remove any question about whether the legal prerequisites for impeachment.  In most cases, members of the President’s party likely will stand by him, but they should not be able to claim that the absence of “high crimes and misdemeanors” prevented them from acting. 

     @DavidASuper.bsky.social  @DavidASuper1

The Youngstown Concurrence Empowering the President Abroad

Gerard N. Magliocca

One notable aspect of Justice Jackson's Youngstown concurrence is its deference to the President's unilateral authority to use force overseas. The OLC's most common citation of the opinion is:

"I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society."

For all practical purposes, this is now the law. Jackson dropped a footnote to say that this was not always so (citing Jefferson's views on America's conflict with the Barbary Pirates). But in light of the Korean War, the Cold War, and nuclear weapons, the demands of experience necessitated a change. 

Of course, the political consequences of any given unilateral executive action are far from clear.

The Purported Chaotic Mess of Tariff Refunds

Mark Tushnet

 Will refunding the unlawfully collected tariffs be a chaotic mess? Yes and no. Yes, on the assumption, which everyone is making, that the refunds have to be paid dollar-for-dollar to the people who were unlawfully required to pay them, taking into account the fact that some of the immediate payers—the importing corporations—passed on some of the increased costs to consumers. (I think people are assuming that as a legal matter such consumers are also entitled to refunds because they were the ultimate victims of the administration’s unlawful actions. I think one can question that assumption, but will accept it here.)

As far as I can tell the overall assumption rests on two premises: the applicable statutes require dollar-for-dollar refunds, as does the Due Process Clause. (It would be easier for nonlawyers to understand the second premise if we could frame the failure to refund unlawfully collected taxes as an uncompensated taking, but for doctrinal reasons the challenge is more easily framed in due process terms.)

In a competent administration (or government), lawyers would already be working to eliminate the statutory premise by drafting legislation that would replace the assumed dollar-for-dollar statutory refund. I can spin out a lot of possibilities. One would be a Pritzker fund: a barrel of money from which checks would be issued to every household, providing rough compensation for the increased costs each was unlawfully required to pay. The precedents are clear that what I’m calling “rough” compensation satisfies due process/“takings” requirements (though of course someone would litigate the due process question—and most likely lose).

What about the unlawful payments importers made and didn’t pass on? You could create a second spigot for the barrel. It would be opened when a claimant alleged that it had paid unlawfully extracted tariffs that weren’t compensated and established that claim in a proceeding, with due process afforded, before an administrative agency or Article I court, with appropriate review in an Article III court.

That’s just one top-of-the-head possibility. Good lawyers could come up with others—if they or the people who employed them wanted to. But the “chaos/mess” story plays well politically, I suppose—or, put another way, political actors aren’t serious about actually providing compensation for unlawful government actions (sound familiar?).

The Mystery of Postliberalism

Andrew Koppelman

Postliberalism, the claim that liberalism inevitably degenerates into its repressive opposite (most prominently made by Patrick Deneen and Adrian Vermeule), is so undertheorized that it is hard to give an intelligible account of its claims.

I explain in a new piece at the Unpopulist.

Birthright Citizenship: Remember the INA

Jason Mazzone

With all of the attention on the Fourteenth Amendment issue in Trump v. Barbara, don't forget that the case also presents the question of whether the President's executive order violates the provision of the Immigration and Nationality Act, codified at 8 U.S.C. § 1401(a), making "citizens of the United States at birth" any "person born in the United States, and subject to the jurisdiction thereof," such that the order is invalid (also) on grounds of separation of powers. On that issue, the Solicitor General's brief argues that in 1940 (when the statutory language was first adopted) and again in 1952 (when it was re-adopted in the Act), Congress intended to incorporate whatever the true meaning of section one of the Fourteenth Amendment is, regardless of what anyone thought section one meant in 1940 or 1952. In a recent essay, Vik Amar and I explain why the SG is wrong and why, apart from the straight-up problem of section one, the Immigration and Nationality Act requires invalidation of the President's order. 

Birthright Citizenship Issue Hot Off the Press

Gerard N. Magliocca

The new issue of the Harvard Journal of Law and Public Policy is out. You will find articles on birthright citizenship by Ilan Wurman and Keith Whittington, plus a shorter piece by yours truly. 

Notre Dame will also be publishing a new issue soon with birthright citizenship articles by Kurt Lash and Michael Ramsey. Plenty to look at before the argument on April 1.

New and Improved Government Shutdowns

David Super

      The news about the Department of Homeland Security’s war on peaceful communities and the craven politicization of the Department of Justice keeps getting worse.  Congressional Democrats, however, are getting much better at strategic pushback.  This post dissects what has happened, with particular attention to its lessons concerning leadership, negotiation, and unity. 

     After causing considerable harm for no gain in the Fall government shutdown, congressional Democrats’ leverage this month was substantially impaired.  They could have done much more, much sooner if they had not persuaded many reachable voters that were irresponsible with a shutdown for which they had neither unity nor a compelling explanation why those actions were needed to address the healthcare problem. 

     The horrific behavior of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Bureau of Prisons (BOP), and others have changed that situation.  To their credit congressional Democrats recognized the change and responded. 

     Initial grassroots demands were overly simplistic, as is often the case:  get Members of Congress to pledge not to vote for another dime for ICE.  This was both over- and under-inclusive.  Literally voting down any appropriations bill with any money for ICE likely would have triggered a broad government shutdown in which vulnerable people bore the brunt of the pain and the public might well have turned against Democrats.  And because the One Big Beautiful Bill Act (OBBBA) diverted many billions from Medicaid and the Supplemental Nutrition Assistance Program (SNAP) into a slush fund for ICE not dependent on further appropriations, simply barring new money for ICE would not have curbed its abuses.  The simple message, however, was highly accessible to ordinary voters, and it proved an effective vehicle to secure commitments from the vast majority of Democratic Members.

     Were the Democratic leadership as cynical and cowardly as they often are portrayed, one could imagine them simply staying with that message and allowing another bungled government shutdown to unfold over a largely symbolic demand.  Fortunately, the leadership applied their insider understanding to shift the debate toward eliminating the slush fund and enacting restrictions on the Department of Homeland Security’s (DHS’s) most sensationally abusive practices.  And, remarkably, most grassroots activists appear to have accepted this switch. 

     Democratic leaders also recognized that they could reduce the harm that a shutdown would cause, and increase their chances of winning, if a shutdown could be limited to appropriations for DHS.  Refusing to approve any further money for ICE would have triggered a shutdown involving six of the twelve annual appropriations bills, including the important Labor-Health and Human Services-Education bill.  By offering to fully fund five bills and provide a two-week continuing resolution for DHS, Democrats put the Republicans in position where they would trigger a shutdown, and absorb most of the public’s anger, if they refused.  Thus, approving two more weeks of funding for ICE and the rest of DHS did not meaningfully expand what ICE could do on the streets but greatly improved the playing field for an eventual confrontation. 

     And, as an added bonus, House Speaker Mike Johnson triggered a brief government shutdown over the next few days with an unsuccessful effort to bully the Senate into accepting the House-passed appropriations package.  By sending the House home despite the impending appropriations deadline – and refusing to bring the House back or to try to pass the Senate’s modified appropriations legislation by unanimous consent – the Speaker contributed to the narrative that the Republican-controlled House is indifferent toward the responsibilities of governing. 

     One big question is why the Administration did not try to negotiate a final DHS bill this week:  the political climate is surely getting steadily worse for them.  Lacking a direct line to Stephen Miller I cannot be sure, but my suspicion is that the Administration did not want to be the one making any proposals.  Even proposals inadequate to close a deal could enrage the bloodier xenophobes in their coalition.  And then there are the old warnings about negotiating against oneself.  I suspect the Administration thought it would have a better chance of avoiding a political whipsaw if it let congressional Democrats try to extract concessions from Republicans on the Hill with the possibility of a veto threat if something it particularly despised started moving. 

     This strategy gives Democrats a real opening.  Unlike the Fall government shutdown, which Democrats entered without unity, Friday’s vote on eliminating OBBBA’s ICE slush fund secured the vote of every Democratic senator as well as two Republicans, Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME).  One can imagine that leaders carefully massaged the amendment’s language to ensure that all Democrats would be on-board and to make it easier to attract Republicans. 

     Precedent prevents other Republicans from hiding behind House and Senate rules that nominally disfavor amending permanent legislation, such as OBBBA’s slush fund, on appropriations bills.  Republicans held a series of annual appropriations bills hostage to claw back much of the money the Inflation Reduction Act of 2022 provided the Internal Revenue Service for heightened enforcement against the affluent. 

     Grassroots activists quite rightly demand that ICE be disbanded and replaced.  Its institutional culture is profoundly toxic, beyond the capacity of even a willing administration (which this one emphatically is not) to reform.  Policymakers should listen more to what sociology teaches us about organizational dynamics.

     This winter’s battle, however, will not bring an end to ICE.  Too little of the public has been convinced of the need to do so yet, and the same ugly feelings about immigrants that helped President Trump get re-elected have not vanished.  Moreover, if we disbanded ICE now, the Trump Administration would build the replacement – and would surely create something just as malevolent. 

     So the question is what can be done.  Stripping away the slush fund is the most important step:  forcing the agency to live within a budget, to face real limits on the force it can project onto the streets of our country, and to refrain from hiring every white supremacist incel that applies for a job.  Once the slush fund is gone, more conventional appropriations restrictions become more viable. 

     The final DHS appropriations legislation also likely will include prohibitions on some of its agents’ most egregious actions, particularly ones that are documented by street videographers.  Alas, it is less clear whether it will address DHS’s more hidden abuses:  the media’s neglect of ghastly abuses in ICE detention remains frustrating.  When human beings are made completely vulnerable to hateful, violent thugs, horrible outcomes become inevitable.

     Given DHS’s manifest contempt for the U.S. Constitution, we cannot seriously expect them to care very much about an appropriations act.  Spending money in violation of an appropriations act is a felony, but Pam Bondi’s Justice Department obviously does not care and President Trump would be happy to pardon any offenses.  So what is the point?

     Enacting measures purporting to address a problem serves a valid strategic purpose even if those measures clearly will not work.  In negotiations, the other side’s inadequate proposals can become a huge stumbling block.  Whether sincerely or otherwise, counterparties may adamantly insists that what they are proposing will work and refuse to fairly assess evidence to the contrary.  Calling them out on the implausibility of their beliefs risks becoming personal and causing a rupture.  Patching ruptures often requires substantive concessions.  Far, far better is to be able to say that we tried the other side’s ideas but those ideas did not work.  Taking turns is a strong norm within negotiations, and letting moderates try out their flimsy ideas first can put heavy pressure on them to accept something bolder next time around. 

     As long as the Trump-Vance Administration is in power, the only likely path to curbing ICE/CBP/BOP abuses is through private litigation.  That would require a statute reviving Bivens liability for federal officers violating civil rights, something the Supreme Court has largely gutted.  It also likely would require abrogating the “qualified immunity” that allows law enforcement officers to escape liability by insisting that they did not realize they were violating the law.  But public sentiment is far from ready to demand these measures now; seeing ICE/CBP/BOP defy clear instructions to back off could help bring more of the public around to more forceful measures.

     If congressional Republicans or the Administration refuses to accept politically defensible proposals from Democrats, a DHS-only shutdown will ensue in two weeks.  The OBBBA slush fund unfortunately will keep ICE and CBP on the streets.  Any shutdown likely will come to a head over other DHS agencies.  U.S. Citizenship and Immigration Services is largely fee-supported and therefore less vulnerable to government shutdowns; a shutdown likely would not significantly exacerbate its already severe problems.  The Federal Emergency Management Administration (FEMA) will shut down, too, but winter historically is the slow season for natural disasters – and a large enough disaster could drive a supplemental appropriations bill for that specific purpose.  The most likely breaking point will be when air travelers start missing their flights as Transportation Security Administration checkpoints bog down. 

     We can hope that the combination of events that has created this opportunity – strong grassroots mobilization around a simple message, largely cooperative translation of those demands into something more strategic, and careful positioning of Democrats for maximum leverage in negotiations and with the general public – will be replicated on these and other issues going forward. 

     @DavidASuper.bsky.social @DavidASuper1

Felon Disenfranchisement and Reconstruction

Gerard N. Magliocca

I want to flag an important new opinion from Virginia. A Federal District Court there held that the state's disenfranchisement of felons violates the Act of Congress that readmitted the state in 1870. That Act said that Virginia could not amend its state constitution to disenfranchise citizens "except as a punishment for such crimes as are now felonies at common law." (emphasis added). Virginia's current constitutional rule for felon suffrage sweeps well beyond felonies recognized in 1870.

A similar provision was included in the Acts of Congress that readmitted Mississippi and Texas in 1870. Similar lawsuits are likely there.

The Locus of the Law: Loper-Bright and Qualified Immunity

Richard Primus

I find myself thinking about a potential tension between two impulses in the jurisprudence of the Roberts Court.  Roughly, it's a tension between judicial behavior as law-finding and as law-making.  

The first is reflected in cases like Loper Bright, where the Court asserts that statutory language has inherently correct interpretations.  Rather than seeing statutory language as (often, if not always) a repository of several potential meanings, the choice among which can be made through adjudication (or, in appropriate cases, where different institutions can apply different meanings), this impulse regards the enacted statutory language as the locus of the law and as having directly accessible meaning, rather than needing judicial (or other authoritative-interpreter) intervention to have definite content.  One can be mistaken about that content, and courts have the privileged position they have partly because they are supposed to be good at ascertaining the content correctly.  But ascertainment is what the courts are doing.  Presumably, other people who are good at interpreting could do it, too, just without authority.

The other impulse is reflected in domains like qualified immunity, where a proposition of law is not deemed operative unless it has been established not just by enacted language (in, say, a statute or a constitution) but by prior judicial decision.  As if there might be more than one interpretation of the law's force, and liability should not attach until the meaning has been settled.  

One can reconcile the two lines of doctrine, of course.  One can say, e.g., that what courts are doing in the second context is not adjudicating among possible meanings of the law; it's law-finding at a level of sophistication that shouldn't be expected from people who aren't judges, and its function is to clarify and explain rather than to settle.  But perhaps in part because of the tone of certainty with which some judicial opinions (e.g., that of the Supreme Court majority in Loper Bright) assert that statutes have uniquely correct interpretations, I'm still inclined to think that there's a tension here, at least at the level of attitude.

Principled Resignation: The Lawyers’ Dilemma

Guest Blogger

Steven Lubet

In 2004, The Clash’s iconic “Should I Stay or Should I Go” (with no question mark in the title) was ranked 228 on Rolling Stone’s 500 Greatest Songs of All Time.” Beginning with Pres. Donald Trump’s second inauguration on January 20, 2025, federal prosecutors have increasingly had to ask themselves the same question, with the appropriate punctuation mark. Faced with increasingly unethical demands from higher ups, should they stay or should they go?

The resignation conundrum is not new, but it arises most sharply in times of extreme national disruption. It was perhaps first articulated by a federal official during the fraught era before the Civil War, and it has lately confronted lawyers in the Trump administration’s Department of Justice.

A Greenland Round Robin

Gerard N. Magliocca

When Governor Huey Long of Louisiana was impeached in 1929, he hit on a clever strategy to avoid conviction and removal. Before the trial began, he persuaded one-third +1 of the state senators to sign a pledge that they would not vote to convict. This pledge became known as the "Round Robin." The trial never happened because a two-thirds vote in the state Senate was required for a conviction.

It seems to me that 34 or more United States Senators could do something similar with respect to a proposed treaty concerning Greenland. A two-thirds vote, of course, is required to ratify a treaty. The pledge would be stronger, of course, if at least 34 of those senators were not up for reelection this year. 

Balkinization Symposium on Maxwell Stearns, Parliamentary America-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Anna Law, How the US Digs Out of Constitutional Failure

3. Erwin Chemerinsky, An Admiring, But Skeptical Response to Professor Stearns

4. Lisa L. Miller, Changing the Rules of the Game Requires Defending Government By, For, and Of the People

5. Sandy Levinson, Audacity Within Limits: On Maxwell Stearns’ Parliamentary America

6. Henry L. Chambers, Jr., Rewiring Our Civics Brain

7. Stephen Griffin, Evaluating Stearns' "Parliamentary America"

8. Maxwell Stearns, A Faint-Hearted Parliamentarian’s Response to Commenters

Balkinization Symposium on Ruti Teitel, Presidential Visions of Transitional Justice-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Ruti Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).

1. Jack Balkin, Intoduction to the Symposium

2. David Gray, Exceptional Apologies

3. Bradley D. Hays, A Tradition Interrupted? Transitional Justice and the Presidency in Contemporary Politics

4. Colleen Murphy, Presidential Visions of Transitional Injustice

5. Ruti Teitel, Reponse to the Balkinization Symposium on Presidential Visions of Transitional Justice

A Faint-Hearted Parliamentarian’s Response to Commenters

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Maxwell Stearns

Introduction

It is indeed a privilege to have such an esteemed group of legal scholars and political scientists critically assess Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (JHU 2024).

Professor Erwin Chemerinsky (Berkeley) describes the book as “legal scholarship at its very best,” commends its accessibility, and appreciates that it “explains complex concepts in a clear way.” Professor Hank Chambers (Richmond) describes the book as “fantastic,” noting that “a full discussion would require multiple symposia.” Professor Anna Law (CUNY, Brooklyn) regards my goal of “radically alter[ing] the stakes by changing the rules of the game” as “exactly the right move,” characterizes the book as “erudite, thoughtful, and thoroughly explicated,” and considers my reform proposals “an excellent start to begin a national conversation on what the nation’s Third Reconstruction will look like.” Professor Sandy Levinson (Texas) considers Parliamentary America “a standing reproach to the intellectual conservatism of the [constitutional law] academy,” which he regards as “sclerotic” and in need of “repair” before such reforms can be taken seriously, given its “thorough-going ‘path dependence’ that makes it impossible to think outside of the Constitution’s box.” Stephen Griffin (Tulane) commends the book as a welcome contribution to a vital conversation, and Professor Lisa Miller (Rutgers) describes the proposals as “thoughtful and compelling,” while noting that the book encourages us to rethink early lessons in American civics. I recount these assessments not to rehearse compliments, but to situate the nature of the disagreements that follow.

Homage to the Once and Future Government Shutdown

David Super

     At the insistence of vocal elements of their base, Democrats shut down the federal government October I, demanding action on health care subsidies and President Trump’s copious impoundments of appropriated funds.  After 41 days, during which nearly 42 million recipients of the Supplemental Nutrition Assistance Program (SNAP) had their benefits delayed or threatened and numerous federal civil servants faced financial emergencies, the Democrats lost, completely. 

     Now much of the Democratic base is demanding another government shutdown at the end of January.  Nobody seems to have drawn any meaningful lessons from the first failed government shutdown or have any plausible explanation of why a repeat would fare any better.  This post seeks to address those issues. 

Wrapping Up Loose Ends After The Trump v. Slaughter Oral Argument That Left The Conservative Justices Tangled In Knots

Guest Blogger

Simon Lazarus

A deluge of ink, digital and otherwise, has been spilt over the case, Trump v. Slaughter, argued before the Supreme Court on December 8, 2025, which challenges the constitutionality of statutory ‘for-cause removal” restrictions  on the President’s authority to fire commissioners of the Federal Trade Commission. In that argument, three points and their implications, potentially critical to the outcome, were, to a greater or lesser extent, not fully vetted. Here I will briefly seek to tie down those loose ends and lay out necessary upshots.

These matters came to the fore because the oral argument exposed new cracks in the prior consensus buy-in by the six conservative justices, to a precept long popular among legal conservatives. This maxim, popularly known as “unitary executive theory (or UET),” holds that Congress lacks power to circumscribe in any way the President’s freedom to fire senior executive branch officials, on the ground that untrammeled removal authority is compelled by the text and original public meaning of Article II, Section One of the Constitution. This provision, known as the Article II “vesting clause,” prescribes that “the Executive Power [of the federal government] shall be vested in a President of the United States of America.”  In recent years, especially since 2020, when the Court last addressed this issue, a cascade of exhaustive academic works, from eminent conservatives as well as liberals, has shattered the factual foundation for unitary executive proponents’ originalist/ textualist catechism.  The reshaped historical record, and its implications, were sketched by counsel for Rebecca Slaughter, the FTC commissioner President Trump had purported to fire without cause, and by the liberal justices, and detailed in several amicus curiae briefs. As I wrote in The New Republic following the argument, the conservative justices struggled to cope with these new findings, tossing out top-of-the-head alternative rationales for their long-sought presidential absolutism result.

The problem for the conservative justices was that the terse text of the vesting clause does not itself actually specify that this grant to the President of the “executive power” – whatever that means – necessarily entails unbounded freedom to remove each and every senior official, for any reason or no reason. Unitary executive enthusiasts’ originalist/ textualist claim is rendered especially questionable  since the Constitution empowers the President to appoint such officials only with “the advice and consent of the Senate,” and, further, puts it up to Congress to create the agencies and offices those officials will hold, by legislation (which of course also requires the president’s signature). Moreover, other constitutional provisions give Congress major roles in determining how the executive branch is to be structured, populated, what tasks it is authorized to carry out, and how that should be done – in particular Congress’ Article I authority to “To make all Laws which shall be necessary and proper for carrying into Execution . . . all  Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”      So the only way to show that the framers understood the non-definitive text of the vesting clause to negate all removal-for-cause restrictions, is to show that, once the Constitution was ratified, early Congresses and presidents – in particular, George Washington, John Adams, and Thomas Jefferson – consistently proposed and enacted only federal entities the leaders of which served “at will,” that is to say, at the president’s pleasure. But that, as it has become clear, was simply not the case.

The conservative justices’ abandonment of their originally fervent  originalist/ textualist case for unitary executive theorizing was implicit from the tacks they plied in the argument. But neither counsel for Commissioner Slaughter nor, more importantly, the liberal justices expressly notched this huge concession on the wall. So that is the first loose-end that merits tying down here.

The conservative justices, and the Trump administration’s counsel, Solicitor General John Sauer, as have their allies in academic and advocacy posts, turned to a second constitutional provision. This is the so-called “take care” clause, also in Title II, which assigns to the President a duty to “take Care that the Laws be faithfully executed.” Unitary executive proponents have long treated the take care clause as a back-up, reinforcing and dictating the same result as the vesting clause. Thus, when asked by Justice Amy Coney Barrett whether the take care clause might prescribe less absolute presidential removal power, Solicitor General Sauer responded that the Roberts Court and its predecessors had treated both clauses the same – as “mutually reinforcing bases . . . as a settled beyond doubt, you know, exclusive and illimitable power of removal.” (my italics). Here the argument is, as in the lead pro-administration amicus curiae brief   by former Republican Attorneys General Edwin Meese and Michael Mukasey, and conservative originalist scholars Steven Calabresi and Christopher Yoo: “The President could not fulfill his duties under [the take care clause] if he could not control all principal and superior officers who exercise executive power.” But this interpretation literally turns constitutional text on its head -- reading: language instructing the president to ensure that subordinates “faithfully execute the laws” to deny Congress authority to enable him to do exactly that, while precluding him from ordering them to violate the law.

This straightforward observation resolves the second loose-end issue left dangling after the oral argument – the relationship between the vesting and take care clauses. They are not, as the administration contends, “mutually reinforcing,” and do not have identical effect. Unitary executive proponents” “illimitable” reading of the power granted by the vesting clause constitutes one plausible interpretation, among others – IF its text is viewed in isolation. But the take care clause actually forecloses that interpretation. To paraphrase Professor Marty Lederman, writing a year ago on this blog on a different, though related issue, “It’s difficult to imagine that [the] constitution would . . . disable the legislature from making it unlawful for a chief executive to instruct officials to corruptly use the enforcement instruments the legislature has entrusted to them . . . .” All the more so in this case, where the command for faithful execution is actually explicit in the text.

This upshot – that the take care clause rules out uniform executive theorists’ absolutist interpretation of the vesting clause – tees up the third Trump v. Slaughter loose-end issue: whether the question to be resolved by the Court is the constitutionality of any for-cause removal provision, or the actual provision in the FTC Act. The FTC Act provision specifies that a commissioner “may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”  That “INM” standard was inscribed in the first of the post-industrial revolution multi-member agencies, the 1887 Interstate Commerce Commission, deployed often since, including with the FTC in 1914. But UET presidential absolutists, and often until recently, even independent agency supporters have given little attention and less weight to any differences between INM and other “for cause” criteria. In Seila Law v. Consumer Financial Protection Bureau (CFPB), the 2020 case in which a 5-4 majority invalidated an INM removal restriction in a single-headed agency, Chief Justice Roberts brushed aside such arguments from CFPB’s counsel and Justice Elena Kagan’s dissent, while acknowledging that Congress had deployed similar provisions in “over two-dozen multi-member agencies.” Roberts rejected these claims that a “narrower” INM formula permitted constitutionally adequate presidential supervisory authority, scolding their proponents for “not advance[ing] any workable standard derived from the statutory language,” and for suggesting a case-by-case approach that was too “uncertain and elastic.” 

However, once again, intervening scholarship has shown up the Chief Justice’s disdain – as reflecting ignorance of literally centuries of statutory and judicial precedents and practice. In 2021, law professors Jane Manners and Lev Menand channeled decades of research into an 80-page Columbia Law Review article demonstrating that INM statutes employ long-established, widely prescribed, well-honed “permissions” for “broad” presidential supervision, not novel, impromptu, nor hand-cuffing restrictions. “Neglect of duty and malfeasance in office,” they wrote in a passage quoted in an amicus curiae brief of bipartisan former FTC commissioners, “are terms that have been used for hundreds of years to address the problem of an officer’s failure to faithfully execute the laws” while “[i]nefficiency” historically was “used . . . to describe wasteful government administration caused by inept officers.” (My italics)

Given these transformations of the factual record, it is not difficult to see why at the oral argument the conservative justices left behind their originalist arguments for presidential absolutism. When it comes down to deciding, if they, or at least two of them, can muster the candor to acknowledge newly surfaced facts and pay closer attention to relevant constitutional and statutory text, we could get a surprising result from this epochal case. No one is holding their breath. But such a turnabout would be a good thing, for the Court as well as the polity. 

Simon Lazarus is a lawyer and writer on constitutional law and politics. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is Simonlaz@comcast.net.

Self-Foot Shooting Is Not a Crime, but . . .

Gerard N. Magliocca

I was puzzled when I learned that the Fed Chair was served with a criminal subpoena a week before the Court hears argument in Trump v. Cook. Why would the DOJ do that and thereby poison the well for its argument before the Justices? Setting aside the merits of the Powell investigation, they could have waited until after Cook was decided to issue the subpoena.

My only hypothesis is that Jeannine Pirro, the prosecutor who issued the subpoena, is a doofus. The evidence comes from years of her public statements and her repeated failure to convince grand juries on indictments since she assumed office. She probably did not seek approval for the subpoena and assumed that Powell would not make any public statements about the investigation. Wrong on both counts.

I wonder how long she'll keep her job.

Evaluating Stearns' "Parliamentary America"

Stephen Griffin

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Maxwell Stearns’ important book is part of a welcome surge of interest in fundamental political and constitutional reform.  It is a well-considered effort by a law professor to diagnose our current political situation and propose specific reforms.  Such efforts are all to the good.

As this symposium amply illustrates, lots of liberals are decidedly unhappy with the way our government works.  But anyone with a serious interest in reform faces hard choices.  For example, there are proposals that cannot be implemented without amending the Constitution (like Stearns’ three amendments).  Others require new legislation but not amendments, such as many proposed changes to voting rights and election law.  In addition, some reforms with substantial effects might be achieved simply by changing the internal rules by which Congress operates (such as abolishing the Senate filibuster).  With gridlock seemingly prevailing in Washington, knowing which path to take is not easy.

Stearns goes big by saying that amendments making substantial changes are the only way out, the “least radical means” of fixing our problems.  But what exactly are the problems his modified parliamentary system (see the other contributions to the symposium for the details) are meant to solve?  Stearns’ argument here has some distinctive features.  I will focus on the relationship between his diagnosis of the problem and the parliamentary solution. 

Rewiring Our Civics Brain

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Henry L. Chambers, Jr.

Professor Stearns’s book is fantastic. Its stated goal is a radical transformation of American democracy through the ratification of three constitutional amendments. The first amendment would double the size of the House of Representatives. Half of the representatives would be elected by geographic district as they are today. The other half would be elected through party preference. The House would be allocated based on proportional representation. The second amendment would put the selection of the President and Vice President directly into the House’s hands. The People would no longer have any direct say in who is elected president. The third amendment would allow the House to remove the president based on a 60% vote of no confidence, with removal allowed based on maladministration short of traditional impeachable offenses. To be clear, I have no reason to believe Max’s proposed amendments will be ratified soon, if ever, or that they would necessarily resolve the key problems with our democracy. However, they are a sensible endpoint to a book that takes a serious look at restructuring our democracy to save it.