Birthright Citizenship and the Politics of Constitutional Law (Part I)

Guest Blogger

Pranjal Drall and Samuel Moyn

There they go again. The litigation over Donald Trump’s executive order ending birthright citizenship has so far followed a familiar script. And liberals, especially lawyers among them, have played their appointed role, as if there were no other—even in the age of an openly reactionary Supreme Court majority.

First, liberals denied and even ridiculed the possibility of reading the Fourteenth Amendment Trump’s way. But subsequently, they have taken many steps to help normalize that very reading, by consenting to struggle on the terrain of their enemies.

After their loss in the general election produced Trump’s executive order, liberals hope to win at the Supreme Court. If they do, it will be because the politics of interpreting law favored their side, not because of the quality of their legal work. In cases such as this, legal arguments merely facilitate and rationalize outcomes reached for other reasons. Yet it is precisely here—on legal work, and most especially leaning into originalist methods and the virtues of American traditions—that the legalistic opponents of Trump’s new policy have concentrated exclusively.

Welcome to the spectacle of liberal constitutionalism in 2026, which obscures what we are doing, including to ourselves—a mistake for which we have paid an enormous price before.

In the face of a hegemonic and overwhelming discourse focused on what the Fourteenth Amendment really meant and means, we argue in this post for changing the subject. Unlike in the close parallel of NFIB v. Sebelius, where a similar campaign to radically shift constitutional meaning succeeded, liberals might win in Trump v. Barbara. If they do, it’s not going to be because they were “correct” about the law—even if they are. It will be because the political dynamics, having favored unexpected constitutional change unthinkable before in the prior case, stopped it in this one.

Therefore, the right question to ask all along, and openly, wasn’t just what the Constitution means. It is whether the constitutional terrain beckons as strategically opportune, and if so, why it could favor defenders of birthright citizenship in this case. Merely inquiring into what the Framers really believed and insisting one more time that the Constitution was born liberal, are inadequate—unless doing so is our best or sole option strategically.

Many years ago, Jack Balkin observed the great importance of analyzing constraints in legal interpretation. The central suggestion of the critical legal studies movement (of which he was then a member) was not that law is “indeterminate.” But the movement could reveal that ideological forces artificially constrained the range of interpretations of one or another piece of law. And it could better explain than rival frameworks how, under some conditions, the meaning of law could change radically. In subsequent work, Balkin highlighted the importance of who occupies important “nodes of power” in pushing for some meanings rather than others—and, of course, who has succeeded in the quest to control the apex sites of interpretation as the essential determinant of legal meaning when consensus breaks down.

In Balkin’s writings, the most famous example of these dynamics was how the Commerce Clause of the U.S. Constitution was, almost overnight, subjected to a campaign to undo the ideological consensus, that had held since the 1930s, that it imposed next to no limits on Congressional power. A reactionary claim that Barack Obama’s new health care plan in the Affordable Care Act was beyond the legislative authority granted by the Constitution gained traction and then, rather suddenly became the law of the land in NFIB v. Sebelius.

Once “off the wall,” in Balkin’s folksy redescription of the terms of his own earlier approach, the right-wing claim became credible or “on the wall.” Nothing about the Constitution changed. Old precedents remained in force. But enough elements of the ideological constraint were lifted that the new outcome become plausible. The result was devastating: though Chief Justice John Roberts found the saving construction of upholding much of Obama’s law under Congress’s tax power, millions of poor Americans lost the Medicaid expansion that Congress had decided to grant them.

The left pursues its own constitutional agendas of mainstreaming unlikely interpretive propositions, albeit with much less success—think of the attempt to dust off the Fourteenth Amendment’s second section in the litigation to keep Trump off the presidential ballot in 2024. But right now, it is urgent to address how Balkin’s model might help analyze the potential transformation of the amendment’s first section.

Yet legal discourse in the face of Trump’s Day-one executive order rescinding birthright citizenship has been overwhelmingly legalist, indeed originalist, without any hint of the ideological or political focus that Balkin’s model would demand. Liberals are LARPing, not strategizing—at least not openly.

If the executive order goes down, it is not going to be either because of the Constitution’s text or history, nor because of precedents that interpret either. It is because the ongoing right-wing campaign to undo a prior ideological consensus fails. And that reality raises the necessary question of whether playing along with—or into—the legalist and originalist strategies of lifting interpretive constraints of the right is the best move for the left, especially when those strategies on their own will not cast the die for the future of American citizenship.

In our next post, we chronicle the trajectory of this interpretation of the Fourteenth Amendment’s Citizenship Clause as a once fruitless project of constitutional transformation that found more fecund soil in our time—and how liberals and progressives have ended up helping to till it. A final post reflects on the politics of constitutional law, once the birthright citizenship saga is examined from a strategic, rather than legalist, point of view.

Pranjal Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor of Law and History there, is author of “Gerontocracy in America: How the Old Are Hoarding Power and Wealth—and What to Do About It.”

Two Paths to Drug Reform

David Pozen

It is a rare point of consensus in contemporary politics that our system for regulating drugs has not been working as intended.  Since the 1970s, the United States has managed to experience exponential growth in both drug incarceration rates and drug overdose death rates.  Meanwhile, millions of Americans have been channeled into illicit markets or denied access to substances that would have benefited them.  Few policy failures can compete with U.S. drug law in terms of sheer perversity. 

How can we get out of this mess?

One path might involve changes to the way drugs are “scheduled” under the Controlled Substances Act and analogous state laws.  The existing schedules often force regulators into a Hobson’s choice between overcriminalizing drugs, through prohibitions that predictably backfire, or overcommercializing drugs, through hands-off approaches that leave users vulnerable to corporate exploitation.  The framework for deciding which drugs belong in which schedules, moreover, indefensibly ignores all but a small set of medical considerations.  In a recent law journal article and a companion piece in Science, Matthew Lawrence and I explain how scheduling could be improved by expanding this framework and adding new schedules that replace criminal controls on drug offenders with administrative controls on drug markets.

A second path might involve recognizing rights to use certain drugs in certain contexts.  My book The Constitution of the War on Drugs recounts how a variety of constitutional campaigns against punitive drug laws made headway in prior generations, before ultimately losing out.  In a new paper prepared for the Cornell Law Review symposium on “Revitalizing Freedom of Thought,” Jeremy Kessler and I argue that at least one constitutional door remains open: a First Amendment argument for access to psychedelics based on their capacity to advance “epistemic discovery.”  Many advocates have maintained in recent years that psychedelics ought to be protected under the principle of “cognitive liberty.”  We suggest that the better approach to revitalizing freedom of thought, as well as the most parsimonious account of much of modern free speech doctrine, lies in the principle of epistemic discovery.

The two paths differ in some obvious respects.  Neither the Constitution nor the courts would have much of a role to play in drug scheduling.  By contrast, they would be at the center of any project to expand First Amendment coverage.  The case for scheduling reform is specific to drug policy.  The case for epistemic discovery has broader implications, extending to hot-button topics such as artificial intelligence and digital platform regulation.  What both paths share, however, is a pragmatic orientation that looks to people’s lived experiences to sort drugs into more sensible legal categories, designed to harness their benefits while reducing harms.

Any effort to reimagine drug law might seem like a quixotic project to be pursuing in the time of Trump.  And these particular efforts could of course fall flat.  Yet the current moment may be surprisingly hospitable to broad initiatives in the area, given MAHA’s distrust of the pharmaceutical industry, the Roberts Court’s commitment to First Amendment expansionism, the “psychedelic renaissance” in clinical psychiatry, and the bipartisan interest in curbing the opioid crisis without further fueling mass incarceration.  Against this backdrop, the drug reforms proposed in these papers strike me as politically as well as legally plausible—or, at least, as no less plausible than many other proposals that deserve consideration today.

Enough throat-clearing and self-justification; the work has to speak for itself.  Here is the abstract for the new paper with Kessler:

Epistemic Discovery, Psychedelic Drugs, and the First Amendment

In recent years, the concept of cognitive liberty has drawn support from scholars and activists worldwide.  Proponents of cognitive liberty depict it as extending the right of free thought to encompass a right to “change our brains,” including through the use of psychedelic drugs such as psilocybin, mescaline, and LSD.  Psychedelics, according to countless testimonials, can be doors of perception leading onto new mental landscapes.  Prohibitions on psychedelics are said to infringe the cognitive liberty to open those doors.

This argument helps to illuminate a constitutional blind spot, but its own legal prospects are dim.  In place of cognitive liberty, we propose epistemic discovery as a more promising way to conceptualize the First Amendment interests at stake in policies that indirectly constrain mental freedom.  Epistemic discovery refers to the social and material processes through which humans gain and share knowledge—a pursuit at the heart of modern free speech law.  Whereas cognitive liberty would seem to protect almost any choice to seek a mind-altering experience, no matter how stupefying or stimulating, epistemic discovery allows for more nuanced distinctions.  And whereas cognitive liberty claims do not fit into any established doctrinal framework, epistemic discovery claims could be adjudicated under familiar tests for content-neutral regulations that burden the acquisition or dissemination of information.  Focusing on psychedelics but also touching upon artificial intelligence, digital platforms, and a host of other examples, this Symposium Essay contends that epistemic discovery deserves a central place in First Amendment theory and advocacy.

Trademark Pending

Gerard N. Magliocca

 I have a few left if you still want one. 

Hard Choices on War Funding

David Super

      Two weeks into President Trump’s war of choice against Iran, discussion is increasing about the role Congress will play.  President Trump chose to ignore Congress’s constitutional power to declare war – one of the most intentional choices the Framers made.  But the costs of the war – exceeding $1 billion per day according to some estimates – will surely lead to requests for additional funding to replace expended munitions and restore numerous Pentagon accounts being spent out far more rapidly than anticipated. 

      With the war spectacularly unpopular, congressional Republican leaders are in no hurry to force their Members to vote for more funds.  Most Democrats, in turn, seem inclined to “just say ‘no’” to funding a war they oppose that was started without consulting them.  At some point soon, however, the Pentagon’s capacity to perform more popular responsibilities, such as deterring assaults on Taiwan or South Korea, will come into question.  This post examines the choices Democrats and Republicans will face at that point.

      The traditional approach is for the President to request a supplemental appropriation from Congress.  Supplemental appropriations often turn into “Christmas trees” with ornaments (additional funding) attached by both the Administration and congressional appropriators.  With ordinary “must-pass” legislation, Democrats might be expected to seek funding for their priorities, and to try to hold the line on Republican ornaments, as the price of their votes. 

      Funding cut-offs, actual or threatened, have been a crucial tool for Congresses to force an end to unpopular wars.  Democrats could make a deadline for ending hostilities the price of their votes.  Republicans will object that telling the enemy when we will end attacks will encourage intransigence.  As the Administration still seems not to have figured out what its war aims are, much less how to talk with a regime it keeps trying to decapitate, it is hard to argue that a termination date will hinder negotiations.  And Democrats can argue that the Administration has only itself to blame for starting a war unilaterally. 

      Another possibility might be to limit all new appropriations to being spent on activities unrelated to Iran.  That would let the Administration expend current stocks on its war on Iran while allowing Democrats to vote only for funds to protect Taiwan and South Korea.  This Administration’s repeated violations of appropriations conditions, however, makes the efficacy of this approach dubious.

      Many Democrats, however, oppose this war so vehemently that they will not want to provide votes under any circumstances.  And thanks to former Senator Joe Manchin’s defense of the filibuster, if the Democrats stand their ground (losing no more than six votes in the Senate), they can indeed block a supplemental appropriations bill.  But then what?

      Republicans can bypass the filibuster by funding the Pentagon through budget reconciliation.  The Senate’s “Byrd Rule” prohibits measures authorizing appropriations on reconciliation bills, but a measure that directly funded the Pentagon likely would have the requisite fiscal effect.  Congress historically has rarely funded non-entitlement programs on reconciliation bills out of respect for, or fear of, its Appropriations Committees.  But President Trump has repeatedly humiliated Republican appropriators without provoking any blowback.  He likely could do so again. 

      To fund the war through reconciliation, Republicans would need to pass a “budget resolution” empowering (“reconciling”) the House and Senate Armed Services Committees to report out legislation with military funding.  This resolution cannot be filibustered, but would likely take two or three days of time on the Senate floor.  Once the budget resolution was approved, the Armed Services Committees could send military funding bills to their Budget Committees and then on to their respective floors.  This “budget reconciliation” legislation could not be filibustered, either, although Democrats could force numerous embarrassing votes related to war funding each step of the way.  This likely would take about a week of the Senate’s time (but relatively little in the House). 

      So should Democrats force Republicans to use reconciliation?  Maybe.  If the Republicans have only their own votes, they will need near-unanimity in the House and can lose only three votes in the Senate.  To assure the votes of war-skeptical far-right Republicans who like to posture as fiscal conservatives, leadership may decide to offset the cost of the war with further cuts to Medicaid, the Supplemental Nutrition Assistance Program (SNAP), and other domestic programs.  (Offsets from the opulent upper-income tax cuts in last summer’s reconciliation act would make far more sense but will have little appeal to Republicans.)  While they are at it, Republicans also could provide several years of funding for Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), mooting Democrat’s filibuster of the Homeland Security Appropriations bill.     

      To be sure, Republicans could include disturbing domestic spending offsets in a supplemental appropriations bill passing through ordinary procedures.  Finding a sufficiently large package of discretionary program cuts to unite their caucus, however, would be challenging – and quite impossible if they are dependent on seven Senate Democratic votes. 

      A third option Republican leaders would have if Democrats refuse to support a war supplemental appropriations bill would be to try to eliminate the filibuster.  President Trump has been loudly demanding that Senate Republicans do so for some time now.  Senate Majority Leader Thune has reported that he lacks the votes in the Republican caucus to eliminate the filibuster over their voter suppressing “SAVE America Act”.  Whether the need to “fund our troops”, combined with President Trump’s insistent pressure, will get him the fifty votes he needs is difficult to predict.  If Senate Republicans do end the filibuster to pass a war supplemental appropriation, however, the next thing they will do is use these new procedures to pass the SAVE America Act.  Ghastly anti-environmental, anti-civil rights, anti-civil liberties, and anti-consumer legislation will quickly follow.    

      Thus, all the Democrats’ choices once a supplemental appropriations bill surfaces are quite unattractive.  They can try to negotiate the best bill they can and then provide the seven votes needed in the Senate to pass it.  If they do, a huge part of the Democratic base will erupt with rage.  Alternatively, they can filibuster and accept the high likelihood that Republicans will pass the funding measure on their own, either offset with savage cuts to low-income programs or through the destruction if the filibuster – and with it almost all Democratic leverage to prevent enactment of the very worst of the far-right legislative agenda. 

      I do not know what the right answer is.  But if anyone tells you the choice is clear, you are likely listening to someone who does not understand what is really at stake.

      @DavidASuper.bsky.social @DavidASuper1

Justice Black and the Bill of Rights

Gerard N. Magliocca

This was his 30-minute interview with CBS in 1968. Enjoy!

Separation of Powers: How to Preserve Liberty in Troubled Times -- A Critical Reading

Guest Blogger

Roberto Gargarella

Separation of Powers. How to Preserve Liberty in Troubled Times, by Cass Sunstein. (The MIT Press, 2026)

Introduction

Separation of Powers is the latest book published by Cass Sunstein (I am writing this review in March 2026). As expected, the book, which deals with a well-chosen and highly relevant subject, brings together many of the virtues and problems that distinguish Sunstein’s most recent work. Let me begin with the virtues: it is a clear, didactic book, written by a brilliant author, full of ideas, and one of the most knowledgeable about the technical literature and jurisprudence of our time. To all this, we can add another advantage, visible in the author's latest works, which is that Sunstein incorporates into his qualified approach the experience and knowledge accumulated during his time in public service (Sunstein served as administrator of the White House Office of Information and Regulatory Affairs (OIRA) between 2009 and 2012). Regarding its problems, I will limit myself to pointing out one particular difficulty, because it underlies this entire new book. Sunstein has been developing a peculiar mode of argumentation, in which he asserts a thesis or describes a fact, only to later begin qualifying his assertions until he shows the plausibility of the contrary thesis or description. This form of ‘back-and-forth’ argumentation reaches an extreme in this book. This is to the point that what could be thought of as the very central thesis of the entire book, that is a statement about the fundamental value of the separation of powers -against the Schmittian defense of a discretionary executive- is refuted on the very last page of the text, where he states: ‘Nothing in this book can be counted as an objection to the grant of a high degree of discretionary power to the president’ (p. 128). For my taste, too much.

Let me now critically examine some of the central points of this timely book, which I would like to comment or challenge. I will divide my study into two parts: the first mainly focused on the issue of democracy, and the second mainly related to the Executive Branch.

The Lost Terminology of Incorporation

Gerard N. Magliocca

Today in a Bill of Rights case that involves a state statute, the Court simply declares that the issue is a "First Amendment" case or a "Second Amendment" case. Older opinions instead said something like: "The First Amendment, as incorporated by the Fourteenth." I'm not sure when this older description disappeared. It certainly wasn't because of some conscious decision by the Court.

The change is understandable given that the Court applies the same First Amendment standards to a state law or a federal law. But on the other hand some Justices have said that we should read a provision of the Bill of Rights according to its 1868 meaning rather than its 1791 meaning if they are different. Labelling something as a "First Amendment" case, though, implicitly says that 1868 does not matter. Perhaps the Court should return to the older form of expressing and emphasizing incorporation.

Neutral Principles?: The Substance of Substantive Due Process

Guest Blogger

Douglas NeJaime and Reva Siegel

In last week’s per curiam opinion in Mirabelli v. Bonta, the U.S. Supreme Court held that California policies requiring school administrators to obtain student consent before disclosing students’ transgender identity to their parents likely violated constitutionally protected parental rights. There are many potential objections to the Court deciding Mirabelli in the way it did. It was yet another “shadow docket” decision, with the Court eager to reach out to decide a question without full briefing and argument. If the Court had taken one of the similar cases on its merits docket, it could have been clearer about the scope of the right it announced.

Here, we raise a different, and deeper, objection. As Justice Kagan explained in a stinging dissent, “[e]ven in recognizing th[e] parental right, the Court cannot quite bring itself to name the legal doctrine—it is . . . substantive due process—that provides the right’s only basis.” “Substantive due process,” Justice Kagan observed, “has not been of late in the good graces of this Court—and especially of the Members of today’s majority.” Last term, in United States v. Skrmetti, when the Court upheld Tennessee’s ban on gender-affirming care for transgender minors on equal protection grounds, it refused to hear the substantive due process claims of parents supporting their children’s transgender identity, letting stand a Sixth Circuit decision denying that parents had constitutionally protected rights at stake. Yet now in Mirabelli, the same Court has recognized a substantive due process right of parents who may object to their children’s transgender identity. Even Justice Thomas, who in Dobbs asserted that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” joined with Justice Alito in ruling that not only the parents but also the teachers likely had constitutionally protected rights to object to the state’s policies.

In this respect, Mirabelli illustrates a dynamic we have been emphasizing for some time now. Objections to substantive due process do not sound in abstract principle. As we show in a recent essay, the Court is quite comfortable applying substantive due process in many cases—from incorporation of the Second Amendment to punitive damages—but objects in cases involving liberty claims by those engaged in long stigmatized conduct relating to reproduction, intimate relations, and family life.

In both Dobbs and Obergefell, the conservative Justices—in the majority in Dobbs and dissenting in Obergefell—attacked substantive due process by equating it with Lochner. It is no coincidence that the Lochner objection is raised in response to claims to abortion and same-sex marriage. Since the era of Griswold, the Lochner objection has been employed to stigmatize liberty claims concerning sexual and reproductive rights. In his 1971 article on Neutral Principles, Robert Bork famously equated the Lochner objection with sexual and judicial license, observing that a judge had “no principled way to decide that one man’s gratifications are more deserving of respect than another’s” or that “sexual gratification” was “nobler than economic gratification” and so lacked any basis “other than his own values upon which to set aside the community judgment embodied in the statute.”

As we show in Not Lochner!: Substantive Due Process as Democracy-Promoting Judicial Review, recently published in the California Law Review, if one understands the roots of the modern substantive due process cases, one can appreciate how the Lochner objection perpetuates a history of stigma and outcasting. The cases—from Griswold to Obergefell—arose as members of groups long excluded from the political process asserted claims to engage in conduct—contraception, abortion, sodomy, and same-sex relations—that had been banned for at least a century. Into the late twentieth century, obscenity doctrine inhibited speech about the banned practices, thereby limiting the possibilities for mobilization and political action. The objection to substantive due process carries forward the legacy of obscenity, perpetuating the stigma historically associated with the criminalized conduct and speech at issue. From this vantage point, the Court’s most recent brush with substantive due process makes sense. In Mirabelli, we see a Court prepared to recognize parental rights to object to a child’s “gender transition” but, with Skrmetti, not to support a child through “gender transition.”

The conservatives’ Lochner objection appears in some, but not all substantive due process cases. We do not typically hear it in substantive due process cases concerning incorporation, or punitive damages, or even most forms of parental rights. Instead, cries of Lochner are most likely to appear as an objection to a claim of liberty in intimate and family life that breaks with tradition.

 Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School and can be reached at douglas.nejaime@yale.edu. Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School and can be reached at reva.siegel@yale.edu.

A New Essay of Mine: Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter

Bruce Ackerman

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. Take a look here.

Justice Barrett emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century – beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As she pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable. 

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor. After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion. 

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analyses of the constitutional significance of the half-century of history that she was emphasizing. It happens, however, that I spent a great deal of time exploring these issues in preparing my multivolume series We the People – and I believe that it powerfully supports Justice Barrett's interpretation of its constitutional significance. 

To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes that it presents. Indeed, this is precisely why I believe that the Court should defer its final decisions in Slaughter and Cox to 2027 so as to give the Justices the opportunity to make a genuinely thoughtful decision on an issue that will profoundly shape the course of American government for generations.

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