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

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.