Tuesday, July 25, 2017
How Does This Work? The Senate and Health Care Reconciliation
Now that the
Senate, defying many pundits’ expectations, has voted to begin debate on a
reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it
may be useful to review the procedural rules and tactics likely to shape this debate.
Trump as a Different Type of Failure
Due Process of Lawmaking and the Obamacare Repeal
1976, former Oregon Supreme Court Justice Hans Linde published a provocative
article--Due Process of Lawmaking--which
suggested, among other things, that legislation that was the product of lack of
deliberation or process could be constitutionally invalid. Today, the U.S.
Senate is moving to a vote on a mystery Obamacare repeal the contents of which no
one-- not even the Senators being asked to vote--knows.
No Recess Appointments?
Gerard N. Magliocca
Mao Zedong used to write poems to express displeasure with colleagues who were about to be purged. The President uses tweets. In the case of the Attorney General, though, there is a problem. How can the President get a new person confirmed without making all sorts of commitments to the Senate about the Russia investigation and other matters?
Monday, July 24, 2017
Death and the War Power
Mary L. Dudziak
Some time ago, I began thinking about how war death matters to the history of war politics and war power through musings on this blog. Responses to those posts -- even in the comments(!) -- were helpful and thought provoking. It has taken me a while to figure out the pieces of the resulting argument and how they fit together, but this inquiry is now the centerpiece of my current book project.
Thursday, July 20, 2017
Pardons Are For The Guilty
Gerard N. Magliocca
Tomorrow the Trump du jour will be whether the President might pardon his aides, his family members, or even himself. I want to make one observation about this; a quote from the Supreme Court's 1915 opinion in Burdick v. United States, which addressed the pardon power:
Tuesday, July 18, 2017
Fault Lines in the Constitution
My wife and I have co-authored a book, directed primarily at 10-18 year olds, titled Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today. It focuses very much on structural features of the Constitution, though rights appear in the context of chapters on habeas corpus and the broader problem of emergency powers. The book will be published on September 1 by Peachtreec Publishers. Cynthia and I will talk about the book at the National Book Festival in Washington on September 2.
Wednesday, July 12, 2017
The Definition of "Emolument" in English Language and Legal Dictionaries, 1523-1806
Monday, July 10, 2017
It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"
It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.
Thursday, July 06, 2017
Gerard N. Magliocca
Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.
Wednesday, July 05, 2017
"For a Generation"?
Tuesday, July 04, 2017
Complicity: Internal and External View, or, "Well, Mussolini Made the Trains Run on Time"
Sex and the Constitution
How Could Religious Liberty Be a Human Right?
A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class.
Friday, June 30, 2017
Carl Schmitt in Contemporary U.S. Legal Theory
Thursday, June 29, 2017
Some Legal Realism About Legal Theory
"I Don't Care About My Dignity"
Gerard N. Magliocca
The President's recent tweets made me think about Andrew Johnson's ill-fated campaign for Democrats during the midterm elections of 1866. Johnson's conduct during what was termed "the swing around the circle" was widely seen as an fiasco because he got into shouting matches with hecklers and made several wacky statements ("Why don't you hang Thad Stevens?") When some of the President's supporters told him that some of his comments were undignified, the President was heard by reporters to reply "I don't care about my dignity," which became a national headline.
Wednesday, June 28, 2017
That Syria War Power Debate, Continued
A Realistic Theory of Law
A Realistic Theory of Law, presents law as complex of social institutions that develop in relation to surrounding factors. Chapter Five, Law in the Age of Organizations, is particularly relevant to contemporary events. Therein I distinguish three government uses of law: to maintain government power, to structure and carry out internal operations, and to pursue initiatives and achieve objectives in the social arena. These government uses, I assert, "are influenced by people occupying offices with their own interests, ideas, and objectives, as well as externally by interests seeking to control or shape the activities and objectives they carry out." Here is the Cambridge description of the book:
Tuesday, June 27, 2017
Two Essays on Constitutional Rot
I have posted two connected essays on the phenomenon of constitutional rot on SSRN; the essays began as posts on this blog. Each approaches the problem of constitutional rot from a slightly different angle.
Your Travel Ban Isn't Safe Yet, Mr. Trump
Here is my piece for the New York Times today about the travel ban.
Monday, June 26, 2017
Is Now a Good Time to Go Back to that Presidential War Power Debate?
Taxes, program cuts, and reconciliation: the path forward
In two recent
posts, I discussed the procedural and political context for efforts to repeal
the Affordable Care Act’s revenue provisions and reduce federal spending on
health care assistance. This legislation
does not, however, exist in a vacuum. It
is part of, and interacts with, congressional Republicans’ broader policy
agenda centered on steep cuts in taxes and social programs. This post explains how Congress’s procedural
rules will shape those initiatives.
Sunday, June 25, 2017
Constitutional Rot-- A Discussion on MSNBC
This evening Ari Melber had a segment on my speech to the Yale Law School Alumni, "Trumping the Constitution," which analyzes Donald Trump's rise to power as a symptom of long-term constitutional rot in our political institutions.
This is not the health care bill you were looking for. Move along.
Saturday, June 24, 2017
Ending Medicaid As We Know It: The Court's Role
Perhaps the Senate's health care bill will be a political fizzle but if it passes, we should at least mark the Supreme Court's role in permitting Republicans to advance a proposal that would make one of the biggest changes to the welfare state ever -- ending the role of Medicaid as an entitlement program. As this WaPo story notes, with respect at least to Medicaid, the Senate bill is consistent with an aim Republicans at the national level have had for years. They have wanted to cap federal Medicaid spending either through block grants or per capita limits. As the story says, the Bush 43 administration made a run at a block grant proposal. But it doesn't say why it didn't pass.
Texas boys speak, and what they want is secession
Like many states, Texas has an annual "Boys State," as well as a Bluebonnet Girl's State, both sponsored by the American Legion, where presumably talented and ambitious youngsters descend on Austin to take on the role of would-be leaders of the State. Both met earlier this month, but I am interested in the boys and their enthusiastic endorsement that America's second-largest state secede from the United States. I can do no better than quote its own website and the excitement it conveys:
Policy Complexity vs. Political Sustainability: The Case of the ACA
Thursday, June 22, 2017
The Lawyers Briefly Seize Control of POTUS Twitter
Gerard N. Magliocca
Today part of the news is that the President does not, in fact, have recordings of his conversations with former FBI Director Comey. The President's Twitter account (in two tweets) explained: