A Ballroom Too Far: Republicans’ Procedural Blunders

David Super

     Over the past week, the Trump Administration celebrated the completion of its trifecta of retribution against dissident Republicans, defeating Rep. Tom Massey (R-Ky.) in his primary after previously doing the same to Sen. Bill Cassidy (R-La.) and a group of Indiana state senators opposed to mid-decade partisan redistricting.  Yet rather than having grounds to celebrate, Republicans ended the week in disarray.  Much of this is the toll of accumulated public discontent over the economy, the war in Iran, a violent anti-immigrant campaign, and a host of other self-aggrandizing actions seeming disconnected from the nation’s genuine problems.  Congressional procedure, however, played its role.  This post explains how Republicans’ “strong” moves have landed them in such a mess.   

     The epidemic of violence by Immigration and Customs Enforcement (ICE), Customs and Boarder Protection (CBP), and cooperating agencies led Democrats to demand restrictions on those agencies’ actions in the Homeland Security Appropriations bill.  The White House rejected even fairly basic limits, shutting down negotiations between the two parties’ appropriators.  This led to a partial government shutdown when Democrats effectively filibustered that bill.  Democrats repeatedly offered, and forced Senate Republicans to vote down, bills appropriating funds to the rest of the Department of Homeland Security (DHS), apart from ICE and CBP. 

     The One Big Beautiful Bill Act last summer fully funded ICE for this fiscal year and beyond.  CBP was a bit less flush but also in no immediate distress.  Essential workers in other DHS agencies, however, were getting increasingly restless as they were not getting paid.  The Administration illegally paid those workers once, defying the Constitution’s Appropriations Clause, but got cold feet about doing so again. 

     With polling showing that the electorate was modestly more inclined to blame Republicans for the shutdown, Senate Republicans tired of having to vote down funding for the Coast Guard, the Transportation Security Administration, and other popular agencies.  They agreed to the Democrats’ proposal to fund the rest of DHS without ICE and CBP.  They justified this capitulation by announcing that they would fund those two agencies through a reconciliation bill that Democrats could not filibuster.  House Democrats had no comparable means of forcing awkward votes so the House Republicans were feeling less pressure.  House immigration hawks initially condemned the Senate Republicans’ capitulation but ultimately passed the Senate’s all-but-ICE/CBP appropriations bill. 

     Because they are exempt from filibusters, reconciliation bills often become “Christmas trees”, with everyone in the majority party trying to attach their own contentious items.  This bill was no exception:  the White House apparently insisted on adding $1 billion for the President’s grand ceremonial ballroom.  The President had previously promised that no public funds would go into his ballroom – and secured large donations from companies seeking favors from the Administration – Republicans argued that these funds would go entirely for security improvements adjacent to the ballroom.  Given the ballroom’s unpopularity, this raised the political cost of the bill considerably.  And the ballroom’s inclusion turned out to be a procedural disaster. 

     Because reconciliation bills are extraordinary in that they may pass on a simple majority vote, the procedures for their consideration are more formal than usual.  Before bringing a reconciliation bill to the floor, the majority must first pass a “budget resolution” through both chambers that assigns budgetary limits to each committee intended to contribute material to the final bill.  Reconciliation procedures also allow the minority to force votes that the majority could dodge on other legislation. 

     The Republicans’ budget resolution gave budgets only to the Homeland Security and Judiciary Committees, which divide jurisdiction over immigration.  They likely could have given ICE and CBP all the money they desired through the Homeland Security Committee alone.  The Judiciary Committee, however, has jurisdiction over the Secret Service, and to keep up the pretense that the ballroom funding was only for security improvements, Republicans decided to channel it through the Secret Service.  To give Judiciary Committee members political cover, Republicans had that committee create some of the ICE/CBP funds as well. 

     This all blew apart when the bill reached the floor.  First, Democrats persuaded the Parliamentarian that the White House complex well within the jurisdiction of the Environment and Public Works or Energy and Natural Resources Committees, neither of which was given any money to spend in the budget resolution.  Senate rules attribute spending to the committee with jurisdiction even if it springs from legislation reported out by another committee.  Therefore, the ballroom funding was subject to a point of order for increasing those other committees’ contribution to the deficit without permission in the budget resolution.  If Republicans did not strip the ballroom from the bill themselves, Democrats could raise a point of order that would require sixty votes for Republicans to waive. 

     The problems did not end there.  Although the White House complex is not within the Judiciary Committee’s jurisdiction, the Justice Department is.  Amendments to reconciliation bills that reduce the deficit within the jurisdiction of one of the participating committees are generally in order.  Therefore, by trying to fund the ballroom, Senate Republicans likely allowed Democrats to offer an amendment to the bill that would explicitly forbid the President’s already unlawful $1.776 billion “weaponization” compensation fund.  With half of the Republican caucus reportedly up in arms over the morality and wisdom of that fund, such an amendment would easily pass. 

     To be sure, House Republicans could add back the ballroom and delete any restrictions on the “weaponization” fund.  But with Rep. Massey and all Democrats surely opposed, that could mean that every other Republican, would have to vote for this politically toxic bill – including those facing difficult re-election battles.  By tradition, Democrats can force one floor vote, on a motion to recommit the bill to committee.  Democrats would surely force Republicans to vote on removing the ballroom, barring the “weaponization fund”, or both (by reverting to the Senate version of the bill). 

     And even if the House changed the bill to the President’s liking, that would probably force the convening of a House-Senate conference committee.  At a minimum, this would entail further delay.  And the prospects on the Senate floor of a conference bill that either funded the ballroom or allowed the “weaponization fund” would be dubious at best:  in addition to Sen. Lisa Murkowski (R-AK), who likely opposes it on substance (and who years ago showed she could survive a primary challenge), leadership would have to worry about Sen. Susan Collins (D-Me.), who is in a difficult re-election battle, as well as Sen. Cassidy, whom the President just defeated for re-nomination, Sen. John Cornyn (R-Tex.), whom the President is trying to defeat next week, and two senators forced into retirement with threats of primary challenges (Sens. Thom Tillis of North Carolina and Mitch McConnell of Kentucky).  Overzealous efforts to enforce party discipline can quickly backfire. 

     The Senate Republicans’ impasse over the ICE/CBP reconciliation bill also imperils other parts of the President’s agenda.  Democrats are unlikely to support full funding for the war in Iran that the President launched without consulting Congress – at least not unless it imposes new limits on presidential war-making powers.  Republicans had increasingly been discussing yet another reconciliation bill to fund the war and avoid a filibuster.  These discussions have stalled as Republicans may not have fifty votes for such a bill.  But if they cannot pass the comparatively easy ICE/CBP reconciliation bill, the odds of twisting enough arms to move a much more contentious war reconciliation bill seem even more remote.  Again, the President’s choice to end the careers of four Republican senators for perceived disloyalty considerably weakens his leverage. 

     This also further undermines the President’s demands that Senate Republicans abolish the filibuster to enact the voter-suppressing “SAVE Act”.  Senate Majority Leader John Thune had reported that he lacked the votes to do so even before the latest meltdowns.  Now that the President has personally alienated more senators, and forced the Republican Senate to become accustomed to resisting his agenda, the SAVE Act’s prospects have dimmed even further. 

     House rules give the Speaker near-absolute procedural control of what comes to the floor and how.  One of the few powers the minority does have, however, is the ability to advance a resolution disapproving of a President’s military engagement.  House Democrats sought to do so this past week, with Republican leadership expecting to defeat the resolution on a party lines’ vote.  They had to adjourn hurriedly, however, when they discovered that they did not have sufficient Republican votes to prevail.  This vote now awaits them upon their return.  The President can and surely would veto any anti-war resolution that actually passes, but the prospect of House Republicans in difficult districts having to choose between the President and their anti-war constituents likely is haunting many Members’ recesses.  This could be why the President suddenly seems in a hurry to announce a deal despite the Iranians apparently having capitulated on nothing. 

     Progressives commonly demand that Democrats enforce tighter party discipline and eliminate the filibuster.  It is instructive to see how fierce party discipline and the filibuster have been pummeling Republicans this year. 

     @DavidASuper1 @DavidASuper.bsky.social

R.I.P. Ran Hirschl

Mark Graber

Ran Hirschl was a pathbreaking scholar, an even better human being, and an even better friend.  Words cannot capture his impact on scholarship and on the lives of the numerous scholars he touched.  The excerpts from a letter on his behalf are a weak attempt to do justice to him and his legacy.  They remain in the present tense because through his works, example, and encouragement, Ran will always be with him.

Hirschl is the leading thinker on comparative constitutionalism in the world.   No political scientist in the public law field, no political scientists in the comparative government field, no law professor, and no member of any other discipline has come close to his achievements.  Each of Professor Hirschl’s books is acknowledged as path-breaking.  No one knows more about constitutional developments in different parts of the world.  No one has done more to inspire the contemporary renaissance in comparative constitutionalism.  No one has played a greater leadership role in this comparative constitutional revival.  You could divide Hirschl’s resume in half and probably thirds and each piece would have a powerful case for a lifetime achievement award in numerous disciplines and in numerous fields within those disciplines.

Hirschl has a stunning range of expertise, a range that dwarfs any other scholar that I know of in political science or law.  One finds in his publications a sophisticated understanding of political theory, all aspects of public law, and comparative politics.  He has clearly mastered the literature on democratic theory, on constitutional interpretation, on law and society, and on judicial politics.  He seems to have mastered the general literature on comparative constitutional law, and the specific constitutional politics of almost every country with constitutional politics.  His chapter on case studies in Comparative Matters is an extraordinary methodological piece, one I regular insist my students examine.   I have always been particularly impressed with Professor Hirschl’s capacity to both know the details of what almost every constitutional court in the world is doing and to organize those details into theoretically rich arguments.  Maybe somewhere in an obscure province in India, a constitutional development exists that Hirschl does not know about.  But neither I nor any of the numerous reviewers of his works have been able to identify this omission.  I am confident Vulcan of Star Trek fame is fiction, because Professor Hirschl has never discussed the Constitution of Vulcan.

This erudition extends far beyond law and political science.  Consider the first chapter of City, State: The Constitutionalism and the Megacity.  The chapter begins with an extensive discussion of what almost every social science field has said about cities for the past fifty years.  Hirschl seems to have a fluency in subjects ranging from sociology to architecture that would do experts in those field proud.  Perhaps I need to get out more, but I cannot think of a scholar in any field whose expertise ranges over so much political science, so much law and so much scholarship as Professor Hirschl.  The other books are similar.  Hirschl does not simply master law and political science.  He masters whatever disciplines are necessary to cast light on his subject matters.

Professor Hirschl’s forthcoming book, Constitutionalism 2050 points out that the traditional nation-state no longer serves to manage central problems.  The problems regimes face, from climate change to globalization to pandemics are now international.  Local national governance, he observes, weakens human capacity to respond to these problems.  Constitutionalism must go global for the human race to survive.  Putting aside jealously, I had two thoughts when he was presented.  Sandy Levinson accurately describes this work as the most important book on constitutionalism published in the twenty-first century.  As always the erudition is remarkable; the thesis strikingly original, and the importance speaks for itself.

Professor Hirschl is a fellow of the Royal Society of Canada, which is the equivalent of being a member of the American Academic for the Arts and Sciences in the United States (both are academic halls of fame).  He has held distinguished chairs at the University of Toronto, the University of Texas, and the Max Planck Institute in Germany, as well as holding distinguished visitor chairs at the National University of Singapore, New York University and Harvard Law School.  He has won national and global awards for scholarship and delivered addresses, often named, at almost every major university in the world.  He is a former Co-President of the International Society of Public Law and one of the founders of that organization.  He has published many edited collections and nearly one-hundred essays, many of which have been republished and translated elsewhere.  The evidence clearly indicates, I should add, that none of his works seem to have been written by Christopher Marlowe.

 Professor Hirschl excels at all facets of the academy.  He was an award-winning teacher at Toronto.  When I wrote his recommendation for the Canada Research Chair, the University of Toronto presented me with as strong a set of teaching evaluations, both for graduate students and undergraduates, as I recall seeing.  He has helped mentor the younger generation of comparativists.  You see Professor Hirschl’s name in manuscripts by junior scholars warmly thanking him for the time and energy he gave to reviewing junior manuscripts.  He has been a leader in comparative constitutionalism, not just as a scholar, but as a founder and leader of the International Society of Public Law.  Thanks in significant part to his efforts, ICON-S is probably the most important site in the world for comparative constitutionalism.  Finally, on a personal note he is a warm and trusted friend to many of us in the academy.

Professor Hirschl has a global reputation for excellence and as fine a global reputation for decency.  He is an outstanding teacher, mentor, colleague, and friend.

There will be a program at APSA honored his memory and achievements.  Others are in the works.  All we can do for the present is miss terribly this amazing scholar, human being and friend. 

Still Searching for University Democracy

David Pozen

Jan 6th as Bastille Day

Gerard N. Magliocca

I guess that's the official theory anyway. The French Revolutionary government gave the rioters medals, cash awards, and (in some cases) pensions.

By the way, while I'm sure that the so-called settlement is unlawful under the Appropriations Clause, I've not made up my mind about how Section 4 of the Fourteenth Amendment might apply. One sticking point is that Confederate veterans received state pensions for decades, though those were appropriated by state legislatures. I need to think through the relevance of that practice.

Is the New “Weaponization” Compensation Fund Lawful?

David Super

     President Trump, his older sons, and his business have filed several claims against the United States Government that he controls.  On May 18, 2026, the Department of Justice announced that plaintiffs’ lawyers, whom President Trump controls, and defendants’ lawyers, whom he also controls, have settled some claims.  Under this agreement, the Government would establish a fund to pay compensation to individuals who allege they were victims of improper “weaponization” of the federal government during President Biden’s administration.  Although widely reported to be for persons who were tried and convicted for crimes relating to the January 6, 2021, assault on Congress, the settlement agreement does not specifically mention that attack and allows anyone who feels they were victimized to file a claim.  The agreement does not designate any amount of money to go to this fund, although Acting Attorney General Todd Blanche’s announcement says it will receive $1.776 billion.  (The settlement also, unconvincingly, tries to shield the payments it makes from taxation.)  The Administration has made clear it does not intend to seek approval or an appropriation from Congress.  This post examines the legality of this arrangement.

     One simple answer is that section 4 of the Fourteenth Amendment declares that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States … but all such debts, obligations and claims shall be held illegal and void.”  The unprecedented attack on Congress on January 6 was an “insurrection or rebellion against the United States”.  Any purported debts perpetrators might file likely were incurred in aid of that insurrection and therefore that are “illegal and void”.  To be sure, the purported debts are not for the costs of the insurrection itself but rather to compensate for the lawful punishment the insurrectionists subsequently suffered for their acts.  The sequence, however, should not matter:  the law long has recognized liability for acts assisting perpetrators of crimes occurring entirely after the crimes were committed. 

     To be sure, some people who did not participate in the January 6 insurrection may claim to have been victims of other federal abuses.  Section 4 would not bar relief for them.  Nonetheless, they – as well as the January 6 claimants – would be barred from receiving money from this fund for other reasons. 

     Article I, section 9, clause 7 of the U.S. Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”.  Similarly, the Anti-Deficiency Act provides that “Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government or of the District of Columbia government may not…make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”.  Violations of the Anti-Deficiency Act carry criminal penalties.  Therefore, Justice Department officials involved in creating or administering the proposed fund would face serious personal jeopardy if they cannot identify a congressional appropriation permitting these expenditures or feel confident they will be included in a future pardon. 

     Acting Attorney General Blanche’s statement declares that the Administration will make these payments under the Judgment Fund, a permanent uncapped appropriation for paying judgments against the United States Government.  The drafting of the settlement agreement, however, may preclude that.  Section IV.A directs Acting Attorney General Blanche to issue an order within 30 days of the agreement that “shall establish funding” for the program.  Section VII then states that the settlement agreement and the accompanying orders of the Attorney General “constitute[] the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.”  Thus, the settlement agreement does not require any particular level of funding and any side agreement on the $1.776 billion figure has no legal effect.  Acting Attorney General Blanche could have fully complied with the settlement agreement by designating one dollar for the fund.  His voluntary choice to provide more than was obligated was not necessary to settle these cases and hence is not covered by the Judgment Fund. 

     Yet even without these technical blunders, the Administration’s broader theory cannot withstand scrutiny.  It is arguing, in essence, that the mere act of filing a lawsuit against the Government allows President Trump to fully circumvent the Appropriations Clause and the Anti-Deficiency Act by “settling” for any spending he desires.  He thus could file a meritless lawsuit against the Government he controls and then “settle” for taxpayers’ dollars to build his ornate ballroom, to fund his grand “Arc d’Trump”, or even to pay for foreign wars that Congress declines to fund. 

     As in the case of other Administration legal theories that purport to confer transformative powers onto the President, we should ask ourselves whether the Framers, or Congress, or the courts, have really left such a spectacular loophole in our system of checks and balances.  In some instances, the answer may be that our forebears failed to imagine presidential power being exercised with such blatant dishonesty and bad faith.  But often close examination of the controlling legal materials shows that the purported sweeping powers are a phantom. 

     The Judgment Fund provides an appropriation to pay a “judgment, award, or settlement” under any of ten specified federal laws or a decision of a board of contract appeals.  Six of the enumerated statutes are obviously inapplicable to this situation.  Section 2677 allows settlement of claims under section 1346(b), but the latter strictly limits recoveries to “injury or loss of property, or personal injury or death”, a much narrower set of harms than the settlement agreement contemplates, and further limits recoveries by persons incarcerated after felony convictions.  Section 2672 is similarly limited to claims for “injury or loss of property or personal injury or death”.  Section 2517 is limited to judgments of the Court of Federal Claims, not settlements. 

     That leaves section 2414.  That section, too, primarily addresses court judgments.  It does, however, provide that “[e]xcept as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.”  This is the only possible basis for accessing the Judgment Fund here. 

     Section 2414’s permission to pay settlements of claims, however, is subject to limits in other laws.  One such federal statute is section 1359 of Title 28, which provides that “[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”  President Trump suing the U.S. Government, which he completely controls under the Unified Executive Theory he has tirelessly invoked, would strike many as a collusive attempt to invoke the jurisdiction of the federal court to facilitate a settlement of his liking.  President Trump acknowledged that this litigation appears to be brought against himself.

     Another such statute is section 530B(a) of Title 28, which provides that “An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.”

     Florida Bar Rule 4-3.1 prohibits meritless or frivolous litigation; Rule 4-3.3 requires candor toward the tribunal.  District of Columbia Rules 3.1 and 3.3 are similar.  Litigation in which the same individual controls both sides is inherently misleading to the court and does not call for the adversarial resolution of any questions of fact or law. 

     As the U.S. Supreme Court has said, litigation in which the same person controls both sides “is not in any real sense adversary. It does not assume the ‘honest and actual antagonistic assertion of rights’ to be adjudicated – a safeguard essential to the integrity of the judicial process”.  The Supreme Court of Florida has cautioned against “connivance in [the] defeat” of a party, which certainly occurs when the plaintiff has full control over the defense.  It warned that “[t]he fairness of the system is undermined when the alignment of interests in the litigation is not what it appears to be.”

     Acting Attorney General Blanche’s press release cites a settlement the Obama Administration made with Native Americans as precedent for its actions here.  That case, and many others, did settle litigation against the federal government with moneys from the Judgment Fund.  That settlement, however, did not result from litigation where the same individual controlled both sides of the litigation.  And that settlement was approved by a judge while the settlement of President Trump’s litigation was hustled through this week to save the parties from having to file briefs the court sought on whether they have sufficient adversity to secure federal jurisdiction.

     A series of memoranda from the Justice Department’s Office of Legal Counsel make clear that the Judgment Fund is not available to pay collusive settlements.  As summarized in a 2023 memorandum from the Associate Attorney General (with citations omitted):

A settlement must conform to any applicable statutory limitations and serve the "best interests" of the United States.  The President's constitutional obligation to take care that the laws be faithfully executed "necessarily serves to limit the exercise of the Attorney General's settlement authority so that it does not become a dispensing power." OLC has therefore concluded that the Department may compromise claims only if the Department makes a "good faith assessment" that a court could find the government liable. Further, the Judgment Fund is available for the payment of a settlement only if "the cause ofaction that gave rise to the settlement could have resulted in a final money judgment." And, relatedly, the Judgment Fund may not be used to pay for the settlement of claims that, if they resulted in a judgment against the government, would "impose costs on the government, but [would] not require the United States to make specific cash disbursements" to certain parties, such as a "judgment[] that required the United States to furnish subsidized housing, or that required the United States to correct structural defects in housing." These strictures ensure that the potential use of the Judgment Fund does not "encourage settlements that would not otherwise be in the interest of the United States."

OLC has cautioned that we should “not lightly attribute to Congress an intent to create a structure that might encourage settlements that would not be in the interest of the United States.”  Tapping the Judgment Fund to pay for settlements of non-adversarial litigation does that with a vengeance.

     When extravagant legal theories that defy logic and the Constitution seem too good to be true, they often are.

     @DavidASuper1 @DavidASuper.bsky.social

Does the Appropriations Clause Have Bite?

Gerard N. Magliocca

Article One, Section Nine, Clause Seven states in part:

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . ."

Let's say a President asks Congress for $1 billion to fund a project that he's keen on. Congress declines the request. The President then sues the United States on some fictitious claim of injury and the US "settles" the case for $1 billion. The President then uses that money to fund the project that he wanted.

Structurally, this must be forbidden. The power of the purse would be gravely weakened. But what is the textual basis for such a bar? I think it would be the Appropriations Clause, on the theory that a collusive lawsuit or settlement is not law. But I must admit that I do not know much about the original meaning or the application of the Appropriations Clause. Might be worth a closer look. 

Don't Look Now, but the War Powers Resolution is Working

Stephen Griffin

When I researched my book on war powers (Long Wars and the Constitution), I noticed a shift in opinion had occurred with respect to the WPR by the end of the Clinton administration.  Before then, it was commonly claimed that the WPR was washed up, even legally defunct.  During the 1988 episode in which the U.S. took military action and reflagged oil tankers toward the end of the Iran-Iraq war, senators seemed to despair about whether the WPR even applied.  But by Clinton’s 1999 intervention in Kosovo, members of Congress were actively using the WPR as a reference point in evaluating the administration’s actions, criticizing Clinton for going beyond the 60-day limit.  Perhaps it took a Democratic presidency for both parties to care about the WPR.

Be that as it may, it is striking that that the WPR’s doubting critics have never come up with criteria to support a judgment that it is legally irrelevant.  But since so many still seem skeptical, let’s turn that inquiry around – how would we know that the WPR is working?  One criterion, advocated by the eminent legal philosopher H.L.A. Hart, is when a normative requirement is a basis for criticism when it is violated.  The existence of Hart’s famous “internal point of view” shows that the requirement in question is in fact accepted as a norm – in the case of the WPR, as binding law.  The WPR has been used multiple times in this way since at least the Kosovo intervention and probably well before.  And, by the way, it is false that “every” president has regarded the WPR as unconstitutional – not that this would make any difference.  Passed by a congressional supermajority over President Nixon’s veto and backed by overwhelming public support, it has all the legal authority it needs.

The fact is that until “Mr. Trump’s war” – a historical designation that seems to have unaccountably gone out of style – every major military action since Vietnam had been legally approved by legislative Authorizations to Use Military Force (AUMFs).  This method of legality is specifically contemplated by the WPR and, one might add, by the Constitution itself.  This certainly highlights the difference between Trump’s Iran War and the 1990 Gulf War, the 2001 9/11 War, and the 2003 Iraq War, but fully supports the legal relevance of the WPR.

And don’t look now, but Congress, controlled by Mr. Trump’s party, is creeping ever closer to influencing his ability to take further military action.  Whether Trump personally regards this as a “war” is irrelevant.  Members of Congress of both parties, guided by the norms in the WPR, regard it as such.

The WPR has clearly disappointed many people who are looking for an automatic shut off valve to use against a wayward executive branch.  But within the context of the nation’s foreign policy in which military action is just one element, this was never very likely.  Absent a more favorable reception by the executive (no president has even so much suggested useful reforms to the WPR), it nonetheless has become a meaningful tripwire for the exercise of congressional responsibility.

The Ominous Texas Ten Commandments Case

Andrew Koppelman

Suppose a state mandated that signs be posted in every public school classroom declaring “Jesus is Lord.”   Wouldn’t that violate the First Amendment’s ban on establishments of religion?  Until this week the answer was clearly yes.  But after a decision last week by the Fifth Circuit Court of Appeals, who knows?  That court has announced, and likely sent toward a sympathetic Supreme Court, a previously unheard-of interpretation that practically nullifies the Establishment Clause.

I explain in a new column at The Hill.

Pardon as Contract

Ian Ayres

A week ago Sunday, Jeanine Pirro, the U.S. attorney in Washington, told CNN’s State of the Union that she would appeal the order voiding grand jury subpoenas against Federal Reserve Chair Jerome Powell and further indicated a willingness to pursue the case against Powell anew.  But less than two weeks earlier, on April 24, the Department of Justice had announced it was dropping that same criminal investigation.  It appears that any commitment the President makes today can be rescinded tomorrow.

That credibility problem is now blocking the normal transition of leadership at the Fed.  The President wants Jerome Powell out as a Fed Governor, because Powell’s seat, which runs through early 2028, gives Powell a vote against the interest-rate cuts that the President desperately wants.

But resignation strips Powell of the institutional protection that has, so far, kept the Justice Department at bay.  Federal district judge James Boasberg quashed the original grand jury subpoenas — for alleged misstatements to Congress about the Fed's headquarters renovation — because their “dominant (if not sole) purpose is to harass and pressure Powell either to yield to the president or to resign and make way for a Fed chair who will.”  That improper-motive finding evaporates the moment Powell is no longer at the Fed.  The DOJ has pursued former FBI director James Comey twice since he left government service; nothing in the law would stop the DOJ from coming after Powell after he resigns. 

Powell can be forgiven for wanting assurance, before resigning, that the criminal investigation is “well and truly over with finality and transparency.” 

A conditional pardon might give both sides what they want.  Such a pardon, conditioned on Powell’s prompt governorship resignation, would credibly discharge Powell’s exposure to prosecution, while simultaneously giving conceding to the President an additional appointment to the Board of Governors.

Presidential pardons are not self-executing.  Like contractual offers, they can be rejected by the potential pardonee.  Moreover, a President is free to attach conditions to acceptance.  As my colleague Stephen Carter has summarized, “One who accepts the pardon agrees to the conditions; and those conditions, unless they demand an illegal act or are impossible to perform, become legally binding.”

Conditional pardons of this sort are hardly a modern invention.  Presidents have used them since the early Republic to attach strings to clemency.  In 1829, Andrew Jackson pardoned one recipient on the condition that he learn “some beneficial trade” — essentially, that he get work and become self-supporting.  Other presidential pardons have required recipients to serve in the military, leave the country, or otherwise accept limits on their freedom as the price of forgiveness.

Presidents would do well to continue this tradition more deliberately.  For example, President Biden did his son and the public no favors when he granted Hunter a “full and unconditional” pardon.  Hunter Biden has publicly acknowledged a history of addiction, and federal law bars gun possession by users of controlled substances.  The President’s pardon could have made Hunter’s agreement not to purchase or possess firearms a condition of clemency.

A meaningful concern is whether offering Powell a conditional pardon would look like asking an innocent man to confess.  The Supreme Court observed in Burdick v. United States that a pardon "carries an imputation of guilt; acceptance a confession of it." Moreover, accepting this pardon might set a harmful precedent of normalizing a kind of presidential extortion.

To be clear, in putting forth the possibility of a conditional pardon, I am not suggesting that Powell broke the law.  Indeed, to my mind, the public record supports Judge Boasberg’s conclusion that “the government has offered no evidence whatsoever that Powell committed any crime other than displeasing the president.” 

But the possibility of vindictive prosecution is unfortunately no longer a hypothetical possibility.  The realistic question is not whether to engage with the President's leverage, but whether to convert it into something binding.

We tend to think of pardons as presidential largess, which, like mercy, “droppeth as the gentle rain from heaven.”  But in this case, a pardon would be a commitment device that would tie the president’s own hands.  Once accepted, the president could not rescind it, the Justice Department cannot revisit it, and Powell would exit with the protection that resignation alone would otherwise strip away. 

Powell might choose to reject an offered conditional pardon.  He has indicated that he might stay on even if the criminal investigation were dropped once and for all, saying that his decision would be guided by what he believes would be in “the best interest of the institution and the people we serve.” 

Recent Fed chairs have honored the tradition of stepping down from their governorships when their terms as Chair end.  A conditional pardon would grant Powell the opportunity to continue that tradition gracefully — and would turn the abused executive power that created this credibility problem into an instrument that resolves it.

Birthright Citizenship and Apophatic Interpretation

Guest Blogger

Carolina Núñez and Lucy Williams

For the last 15 months, the entire legal academy has fixated on five words: “subject to the jurisdiction thereof.”  These words are the only limitation in the Fourteenth Amendment’s broad grant of citizenship to “[a]ll persons born or naturalized in the United States.”[1]  They are also the words that the Trump administration seized upon in its executive order denying citizenship to children of undocumented immigrants.  Since that EO issued, legal scholars have expended considerable effort debating what, exactly, “subject to the jurisdiction” requires.  These debates have been so exhaustive (and so exhausting) that when the oral arguments in Trump v. Barbara finally rolled around, it was hard to imagine that those arguments might produce anything new. 

And for the most part, they didn’t.  The oral arguments largely tracked the parties’ briefs, which themselves draw heavily on the academic literature.  Because of this, the arguments were relatively predictable, exploring the same ideas and questions that legal academics have been feuding about since Trump’s second inauguration.  The Court asked, and the advocates answered, familiar questions about allegiance, domicile, original public meaning, and precedent.  For initiated listeners, not much was new. 

Near the end of the argument, though, counsel for the respondents Cecillia Wang said something that did feel new.  When asked whether there is “any way that there might be a different answer [to the question of birthright citizenship] with respect to the children of people who are here unlawfully,”[2] Ms. Wang answered, “[The framers of the Fourteenth Amendment] had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”[3]  Though she did not elaborate further, she seemed to be suggesting something novel: The government’s position is untenable not only because it is inconsistent with the Fourteenth Amendment’s text or history or original public meaning, but also because it embraces something (inherited civic status) that the Fourteenth Amendment rejects. 

Ms. Wang’s comment echoes an argument we have made in our working paper “Apophatic Inquiry, Birthright Citizenship, and the Anti-Aristocratic Constitution.”   Our central claim is that constitutional interpreters ought to consider not only what the Constitution affirmatively says, but also the things it omits, rejects, and negates.  This approach, which we call “apophatic interpretation,” is modeled after apophatic theology, which seeks understanding through negation—by focusing on what something is not rather than what it is.  It is not, itself, a freestanding method of constitutional interpretation, and it does not supplant or displace the familiar interpretive modes.  Instead, it simply re-frames the question that existing interpretive modes seek to answer—from “What do these words mean?” to “What meanings do these words preclude?”