Presidential Appropriations

David Super

      President Trump has rejected any constraints on the violent, lawless, reckless behavior of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents even after they killed several U.S. citizens.  He also has repeatedly rejected a bipartisan Senate compromise that would have funded all of the Department of Homeland Security (DHS) apart from those two agencies.  This compromise would not have interfered with the continued operations of ICE and, at least in the near term, of CBP:  both agencies received a huge influx of funds under the One Big Beautiful Bill Act (OBBBA) President Trump pushed through Congress last summer.

     Without a DHS appropriation, most DHS employees, including those at the Transportation Security Administration (TSA), the Federal Emergency Management Agency (FEMA), and the Coast Guard, have been working without pay.  TSA officers have been resigning and calling in sick, leading to huge lines at airports and numerous missed flights.  Other DHS employees have been seething in relative obscurity.  This post analyzes the legality, or lack thereof, of the actions President Trump has taken in response to this impasse. 

     When the previous temporary appropriation for DHS became unavailable on February 14, President Trump kept ICE agents working and continued to pay them with funds from section 100052 of OBBBA.  This section provides $29.85 billion to ICE for an extensive list of purposes including “Hiring and Training” and “Performance, Retention and Signing Bonuses”.  Although not a clean match with paying the regular salaries of on-going ICE employees, most people likely would regard that as sufficient authority for these payments.  Section 1000052 likely provided sufficient funds to support ICE for the remainder of this fiscal year.

     President Trump also kept CBP agents working and paid them under section 100051 of OBBBA.  Section 1000051 provides DHS $2.055 billion for several purposes including the “[h]iring and training of additional U.S. Customs and Border Protection agents, and the necessary support staff, to carry out immigration enforcement activities.”  President Biden’s final budget proposal estimated that CBP would spend about $16 billion in a year so, even combined with 4.5 months of funding under continuing resolutions, section 1000051 funds alone likely would not suffice to fund CBP through the end of the fiscal year in September. 

     Finally, President Trump required many other DHS employees, including TSA officers and much of the Coast Guard, to continue working during the partial shutdown that began February 14.  This likely was appropriate under section 1342 of the Anti-Deficiency Act, which makes an exception to its general prohibition on the federal government accepting unpaid work where necessary to address “emergencies involving the safety of human life or the protection of property.”  He did not pay them, however, because section 1341 of the Act, which prohibits spending federal funds without a statutory appropriation, contains no “emergency” exception. 

     President Trump was unable to continue paying these non-ICE, non-CBP employees under sections 1000051 or 1000052 because the “Purpose Act” states “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”  

     The Government Accountability Office’s (GAO’s) Red Book of Appropriations Law, on which the Supreme Court has relied, characterizes the “Purpose Act”:  as “Simple, concise, and direct, Congress originally enacted this statute in 1809 and it is one of the cornerstones of congressional control over the federal purse.”  It quotes a 19^th Century Comptroller of the Treasury:  “It is difficult to see how a legislative prohibition could be expressed in stronger terms. The law is plain, and any disbursing officer disregards it at his peril.”  That “peril” is the Anti-Deficiency Act’s criminal penalties.  GAO notes that “[i]f a proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in substantial savings or other benefits to the government” and “transfer between appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated.”

     As public irritation over long airport security lines mounted and Democrats continued to refuse to appropriate more no-strings money for ICE and CBP, President Trump repeatedly instructed congressional Republicans to reject Democratic bills that would have funded the rest of DHS and let ICE and CBP continue to spend OBBBA funds.  When Senate Republicans disobeyed and agreed to legislation that would do essentially that, House Speaker Mike Johnson prevented the Senate bill from coming up for a vote.  President Trump then ordered DHS to pay its workers notwithstanding the lack of an appropriation. 

     On March 27, President Trump issued a memorandum to the Office of Management and Budget (OMB) and DHS ordering them to pay TSA employees.  He stated that “[a]s President of the United States, I have determined that these circumstances constitute an emergency situation compromising the Nation’s security” but cited no statute making such a determination legally relevant.  In addition, he did not specify what appropriation, if any, should be drawn down to provide these payments.  Instead, he simply instructed OMB and DHS to make these payments “consistent with applicable law, including 31 U.S.C. 1301(a)”, the “Purpose Act”.  No available appropriation has a statutory purpose that would include paying TSA officers.  A week later he issued second a memorandum to OMB and DHS directing that “each and every employee of DHS” be paid.  This memorandum again contained an emergency declaration and a citation to the “Purpose Act” and again failed to specify any source of funds for the payments he was ordering. 

     With the Administration not advancing a theory of why this action might be legal, outside analysts have discussed section 90007 of OBBBA.  This section states:

In addition to amounts otherwise available, there are appropriated to the Secretary of Homeland Security for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until September 30, 2029, for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.

These funds are clearly available for CBP agents at the nation’s perimeter.  One could plausibly argue that CBP officers at international airports are indirectly responsible for safeguarding our borders in that anyone to whom they refuse entry will quickly be sent back across those borders.  The Administration contends that ICE and CBP enforcement actions in the country’s interior somehow are part of border security; that position flies in the face of the ordinary usage of language and a long history of distinguishing between border and interior enforcement actions. 

     Even if one accepts the Administration’s unilateral reconceptualization of border enforcement, however, that at most helps fund CBP and the Coast Guard.  As the President’s own memo notes, TSA works only in “our domestic travel system”, not “to safeguard the borders of the United States.” 

     The President directs OMB and DHS “to use funds that have a reasonable and logical nexus to TSA operations” for TSA pay and “to use funds that have a reasonable and logical nexus to the functions of DHS” to pay DHS employees.  This appears to reference the first of the three steps GAO applies to determine the propriety of an expenditure.  This step allows spending an appropriation only on activities necessary to accomplishing the statutory purpose of the appropriation.  That analysis is impossible, of course, without first establishing the appropriation’s purpose.  And for this, GAO cautions “The actual language of the appropriation act is always of paramount importance in determining the purpose of an appropriation.”  (The Supreme Court’s Textualists have nothing on the GAO.)

     The claim that paying DHS employees has “a reasonable and logical nexus” begs the question:  “to what?”  If the Administration had an appropriation whose purpose met this test, surely it would have disclosed it in the presidential memoranda or in response to questions thereafter.  Indeed, if the Administration thought paying DHS employees was permissible under existing law, surely it would have done so in February. 

     Moreover, even if the Administration could satisfy the first part of GAO’s three-part test, it likely would fail the third, which prohibits spending general appropriations on an activity Congress has addressed with a more specific appropriation.  “It is a well-settled rule that even where an expenditure may be reasonably related to a general appropriation, it may not be paid out of that appropriation where the expenditure falls specifically within the scope of another appropriation.”  Congress has addressed compensation for DHS employees in several specific appropriations, all of which barred spending funds after February 14.  The Administration could not lawfully evade that limitation even if it had a broader appropriation whose language plausibly permitted the expenditure. 

     This is not a case of necessity.  President Trump does not care for the terms of the deal Congress is offering.  He can certainly hold out in the hopes of getting something better.  But disregarding the Constitution to avoid bargaining with a coordinate branch of government is no more legitimate for him than it would have been for any of his many predecessors who disliked terms that Congress was offering.   

     President Trump is developing a habit of spending funds in defiance of the Appropriations Clause, the Anti-Deficiency Act, the Purpose Act, and other statutes.  His action to pay servicemembers during last fall’s partial government shutdown was wholly lawless.  His practice of keeping donations from affluent benefactors, and the proceeds from sales of Venezuelan oil he has seized, in accounts he controls outside the U.S. Treasury violates the Miscellaneous Receipts Act.  That Act requires funds to be promptly deposited in the Treasury – where they become subject to the Appropriations Clause. 

     This is important.  Although it may strike some as rather technical when compared with usurping Congress’s power to declare wars in a disastrous war of choice against Iran, Congress’s Power of the Purse is foundational to most other checks on presidential power.  The Court’s unwillingness to enforce various constitutional limitations on presidential power has been defended by arguing that Congress may defund actions of which it disapproves.  If the President may appropriate funds for whatever actions he desires without regard to statutory limits, that fallback constraint no longer exists.  Should Congress ever muster the will to cut off funding for President Trump’s war against Iran or other foreign adventures (Greenland?  Cuba?), we may expect that the President will simply declare a national emergency and order that funds continue to flow based on some wild “nexus” theory, perhaps again not even bothering to state which unrelated appropriation he chose to pilfer. 

     @DavidASuper.bsky.social @DavidASuper1

Who’s Afraid of a Constitutional Convention?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Nikolas Bowie

Two years ago, a ballot question asked Rhode Island voters whether there should be a convention to revise the state’s constitution. The Rhode Islanders answered no. Overwhelmingly. With 62 percent of voters opposing the proposal, an observer across the border might assume the Ocean State’s residents love the way their government is structured. It looks a lot like the federal system, with a bicameral legislature chosen by first-past-the-post elections, a separately elected chief executive, and an appointed judiciary that sits for life.

Rhode Island isn’t unique in its support of the status quo. It’s one of fourteen states whose constitution requires voters to consider, every few decades or so, whether their state constitution needs a reset. From Alaska to New York, voters in these states consistently reject the request. Year after year, when Americans are given the most frictionless option possible for reimagining how government in the United States might be restructured, they choose to keep things as they are.

The irony, of course, is that the Federal Constitution looks frailer than ever. The past two decades have crammed newsfeeds with the downsides of bicameralism, first-preference-plurality elections, presidentialism, and judicial supremacy. As Stephen Skowronek observes in The Adaptability Paradox, the institutional arrangements that sat at the vanguard of 18th-century political science have increasingly failed to serve as an agreed-upon anchor for our current, more inclusive society. He notes that the Federal Constitution has proven remarkably adaptable at responding to crises, including those sparked by partisanship and demands for white male suffrage in the 1820s; abolition and demands for black male suffrage in the 1860s; the administrative state and demands for women suffrage in the 1910s; and the attempted fulfillment of universal inclusion in the 1960s. But he writes that this adaptability comes with a paradox: Each time the Constitution is renovated to accommodate a more inclusive polity, it loses its ability to “make a burgeoning democracy work aligned with a shared understanding of its formal arrangements and their purposes.” The more the Constitution adapts, the less coherent its structure becomes.

Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

In this third and final post of the series, I argue that today’s constitutional stresses stem less from the “unbinding” Stephen Skowronek identifies than from a broader constellation of post-inclusion challenges—extreme polarization, economic inequality, technological disruption, and deliberate political choices that have strained democratic governance across many systems. Skowronek’s framework illuminates real challenges with the conflicts that can arise from democratization in a highly pluralist constitutional democracy, but it risks overstating the civil rights revolution as the primary cause while underestimating alternative sources of constitutional grounding. The history of civic constitutionalism suggests a different possibility than Skowronek’s bleak prognosis: a contentious yet regenerative process of civic struggle and consensus-building.

There is growing agreement among legal and political scholars that the U.S. is facing a serious constitutional crisis, with many contributing factors identified (see, e.g., Ackerman 2010, Mann and Ornstein 2012, Levitsky and Ziblatt 2018). Skowronek's analysis offers a different, older, and counterintuitive diagnosis rooted in American constitutional development: bounded resilience, serial adaptations that progressively loosened the constitutional framework, and the democratic breakthroughs of the civil rights revolution that ultimately "unbound" the Constitution from its earlier stabilizing exclusions (21-22). This provocative and important argument demands continued engagement. 

Yet as insightful and impressive as Skowronek’s account is, it functions less as a complete explanation than as one significant strand in a more complex and multicausal account. Reexamining the civil rights revolution shows that it produced a partially successful constitutional adaptation through the rise of a civil and social rights state, complete with new institutional mechanisms, auxiliaries, and meaningful (if incomplete) cross-racial consensus. Many contemporary dysfunctions stem from subsequent forces– economic inqualities and dislocation,  9/11 and its aftermath and deliberate expansions of executive power, the internet and digital revolution— that are not reducible to civil rights-era “unbinding” or fallouts. That a similar pattern of democratic conflicts and strain is visible across countries with markedly different constitutional structures and developmental trajectories suggests that bounded resilience is at most one dimension of a more complex and multicausal crisis (see, e.g., Levitsky and Ziblatt 2018, Nord et al 2025).

Prosecutorial Tanking

Gerard N. Magliocca

There are two standard explanations for the recent high-profile refusals by grand juries in DC to return indictments. One is that they are engaged in a kind of resistance to what they see as executive overreach. Another is that the prosecutors are just incompetent.

But there's a third possibility. Perhaps prosecutors are deliberately making a weak presentation. Think about that for a second. Say you're told to seek an indictment in a case that is weak or unjustified. One option, given that grand jury proceedings are secret, is to just go into the room and try to lose. Then you can come out and tell your superior: "Look, I tried to get the indictment that you wanted, but the grand jury refused." Unlike NBA teams that tank, no one will ever know the truth.

Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

My first post outlined Stephen Skowronek’s adaptability paradox and his sobering claim that the civil rights revolution ruptured the Constitution’s bounded resilience. On his telling, broad inclusion dissolved the social exclusions that once enabled stable constitutional reorderings, leaving power and authority reconfigured in ways that magnified rather than managed conflict.

Here I undertake a reassessment of the civil rights revolution of the 1960s–70s. I argue that it can be seen as a partially successful adaptation, producing new institutional mechanisms and “auxiliaries” in the form of a “civil and social rights state,” alongside meaningful if contested cross-racial consensus on commitments to political inclusion and equality. Landmark statutes, Great Society social programs, administrative enforcement, litigation and judicial decisions, and civic mobilization contributed to significant, if incomplete, reordering. 

For Skowronek, the civil rights revolution marks the culmination of the adaptability paradox, and the point at which the constitutional system's bounded resilience was dissolved by broad democratization. As the body of "We the People" expanded toward broad inclusivity, encompassing not only white men, but African Americans, women, Indigenous peoples, racial and religious minorities, disabled people, LGBTQ+, and others, the U.S. constitutional system, on his account, lost its capacity for regeneration and spiralled into dysfunction. Although he wholeheartedly supports the civil rights revolution’s goals of inclusion and equality, Skowronek’s analysis of its political and constitutional consequences is almost entirely negative, seeing them as the root causes of destabilization. It can be easy to adopt a purely celebratory or uncritical stance toward the civil rights revolution, but Skowronek’s evaluation overcorrects in the other direction – underestimating the achievements and institutional innovations, overlooking the partial consensus achieved, and placing too much blame on the civil rights era for the current crisis. Reconsidering this history suggests a mixed picture, one that included many of the elements Skowronek associates with successful constitutional adaptation through the party state and administrative state.

The Unbound Constitution Reconsidered: Skowronek’s Framework and History of Constitutional Reordering

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Elizabeth Beaumont

When Stephen Skowronek argues that the civil rights revolution “unbound” the U.S. Constitution, he posits a troubling paradox: America’s greatest democratic achievement—the sweeping inclusion of the 1960s and 1970s—may have ended the system’s adaptive capacity.  But does this diagnosis adequately capture what happened after the 1960s? In this first post of a three-part series, I engage Skowronek’s sophisticated historical-structural analysis while highlighting important dimensions his framework underestimates or overlooks. The civil rights revolution, I will argue in the next post, produced a partially successful constitutional adaptation—one that generated new institutional mechanisms and meaningful (if incomplete) cross-racial consensus. Current dysfunctions stem less from “unbinding” than from a complex set of post-inclusion stressors. Constitutional grounding, moreover, can emerge from the accumulated meanings forged through successive civic struggles rather than old exclusions.

Since the framing of the U.S. Constitution, waves of reformers– from Anti-Federalists, to free African Americans and anti-slavery activists, to suffragists, labor activists, progressives, and civil rights activists– have challenged undemocratic features of the system and pushed for inclusion and transformative change. Their ideas and struggles have reshaped the political community and launched constitutional reconstructions (see, e.g. Ackerman 1991, Ritter 2006, Balkin 2011, Beaumont 2014). In his thought-provoking new book, Stephen Skowronek turns our focus to crucial questions of how, and whether, such reorderings were politically implemented. Were their goals carried forward through stabilizing adaptations that anchored a new consensus, or were they obstructed, redirected, and left unfulfilled? Skowronek draws unsettling conclusions from his analysis of four historical eras of constitutional development. His most sobering contention is that the resilience of the U.S. Constitution is not only limited, but may be inseparable from its injustices: earlier adaptations had been made possible by the very exclusions that prevented full democratic citizenship for African Americans, women, and others, by limiting the field of competing interests enough to enable minimum consensus.  On this account, although the civil rights revolution of the 1960s-70s brought broad inclusiveness to American democracy, it could not generate a successful constitutional adaptation. Instead, he argues, the Constitution became “unbound,” loosened from its founding structure and pulled back and forth in divisive conflicts, eventually producing the present era of polarization, democratic backsliding, and constitutional dysfunction. In this telling, the greatest achievement of American democracy – the sweeping democratic expansion of the latter 20th century – may have ended the constitutional system’s capacity for successful reordering, with no clear way forward. 

By drawing on his far-ranging expertise in American politics and taking a systems-level approach, Skowronek offers a sophisticated account of broad patterns of constitutional change, boldly reconceptualizing the development of constitutional democracy in the U.S. This includes potent arguments regarding how new institutional mechanisms and “auxiliaries” may help constitutional adaptations succeed by reorganizing governance and managing conflict. His framework also provides a further, and powerful, challenge to originalist accounts of the constitutional order. Yet his understanding of “bounded resilience” and the criteria for judging the success or failure of a constitutional adaptation raise questions.

The Material Foundations of American Constitutional Development

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Jeremy Kessler 

Stephen Skowronek’s The Adaptability Paradox offers an admirably concise overview of American political and legal development from the Founding to the present day. That would be enough to make it a valuable addition to legal scholars’ bookshelves and graduate students’ orals lists. But the book is more than synthesis. It advances an original, interpretive argument about the paradox that churns in the engine room of American constitutional government. According to Skowronek, the trend that has defined American legal and political development is the transfer of ever greater power to the national government in response to ever more expansive bids for social and political “inclusion” (pp. 20-25, 209-11). Whether dubbed “democratization” (p.3) or “inclusive nationalization,” which more precisely captures Skowronek’s meaning, this trend has periodically pushed up against two stabilizing features of American constitutional government. The first is the original constitutional text, which sought to protect particular and local interests from national majorities. The second is a series of social exclusions (of the propertyless, of Black Americans, of women, and so on) that enabled coordination and cooperation among otherwise rivalrous particular and local interests. As inclusive nationalization dislodged particular and local interests and overrode social exclusions, new “auxiliary” institutions emerged to restabilize constitutional government. The most significant of these extra-constitutional auxiliaries were the “party state” of the nineteenth century and the “administrative state” of the twentieth (p. 19, 39-108). Each helped to mediate the conflicts unleashed by inclusive nationalization, establishing new mechanisms for coordination and cooperation across an ever larger and more diverse polity.

The mid-twentieth century rights revolution largely fulfilled the project of inclusive nationalization, but it left no new auxiliary in its wake (pp. 126-156). Today, as a result, social struggle takes the form of factional appeals to bare yet indeterminate constitutional principles. The goal of these appeals is to secure greater factional control of the formal branches of constitutional government and the old extra-constitutional auxiliaries of party and bureaucracy (pp. 26-29, 203-205). Principles alone, however, cannot and have never knit back together riven social relations. Only a novel auxiliary institution, capable of coordinating contemporary social rivalries, could restabilize constitutional government. The absence of such an auxiliary leads Skowronek to ask whether the very diversity of the present polity and the intensity of its inclusive (if often rivalrous) expectations now impede the construction of a new coordinating mechanism (pp. 225-233). In other words, the laudable capacity of American constitutional government to adapt to inclusive nationalization may have rendered further adaptation impossible. Hence, the “paradox” of Skowronek’s title.

Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark

John Mikhail

When the Supreme Court hears oral argument tomorrow in Trump v. Barbara, Solicitor General John Sauer will try to persuade the Justices that a child is born “subject to the jurisdiction” of the United States only if the child’s parents are domiciled in the United States at the time of its birth.  Relying on this premise, Sauer will argue that President Trump’s January 2025 Executive Order, which effectively restricts birthright citizenship to the children of citizens or lawful permanent residents, is justified by this domicile requirement.

The Justices should not buy this novel argument. As Marty Lederman and I explained in this essay, the Government’s domicile theory is unconvincing and riddled with fallacies. Here I will add two simple observations to that analysis.

First, the Government’s domicile theory has essentially been made up for the purposes of this litigation.  For over 125 years, the American law of birthright citizenship has been settled.  Millions of Americans have been recognized as natural-born citizens without anyone questioning that status on the basis of their parents’ domicile. And throughout this litigation, the Government has not pointed to a single judicial decision during that time frame in which anyone was denied U.S. citizenship on this basis.

The most significant scholarship on the history of American citizenship yields a similar lesson. The Government’s domicile theory plays virtually no role in the leading scholarly treatment of the subject, James Kettner’s The Development of American Citizenship, 1608-1870 (1978). The same is true of Peter Schuck and Rogers Smith’s book, Citizenship Without Consent (1985). The first real glimmers of the Government’s domicile theory, as it has now come to be framed, can be found in two student notes published in 2010 and 2015, respectively.  Yet even those articles did not formulate the theory in the way the Government now does.

Second, the SG’s claim that domicile was “central” to the Court’s landmark decision in United States v. Wong Kim Ark (1898) is an obvious overreach, which cannot be squared with the basic structure and ratio decidendi of that case. To begin with, most of the 22 references to the word “domicile” in Justice Gray’s majority opinion do not, in fact, lend support to the Government’s theory, and many of them directly contradict it.  See, for example, the four uses of that term on pages 656-57 of Gray’s opinion (with respect to Udny v. Udny) and the three uses of the term on page 666 (with respect to the state of European law at the time of the adoption of the U.S. Constitution).

More importantly, none of the seven federal cases (Charming Betsey, Inglis, Shanks, McCreery, Levy, Dred Scott, and Rhodes), four state cases (Gardner, Kilham, Manuel, and Lynch), four executive department opinions (Marcy, Black, and two by Bates), or two commentaries (Kent and Binney) that Justice Gray drew upon in Part III of his opinion (pp. 658-666) to extract the fundamental rule of citizenship that existed before the adoption of the Citizenship Clause in Part IV (pp. 674-675) treated domicile as a necessary condition of birthright citizenship.  Yet the Court in Wong Kim Ark held (pp. 675, 682), and the SG does not dispute, that the Citizenship Clause was designed to incorporate that pre-1866 U.S. rule, and not to deny citizenship to anyone who would have been entitled to it before the Fourteenth Amendment was framed and ratified. As Gray emphasized, the Clause was “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption” (p. 676). 

On page 34 of its topside brief, the Government quotes from a key paragraph in Wong Kim Ark, in which Gray applied the same fundamental rule to the stipulated facts of the case, including the oft-repeated fact that Wong Kim Ark’s parents were domiciled in the United States at the time of his birth (p. 693; see also pp. 652, 653, 705). But the SG’s brief artfully omits the words that Gray placed at the beginning of that paragraph: “The foregoing considerations and authorities irresistibly lead us to these conclusions.” As indicated, those sources do not connect in any meaningful way with the Government’s domicile theory.  In the sentence immediately following the quoted passage, also missing from the SG’s brief, Gray clarified that the allegiance to which the passage refers is the “temporary and local” allegiance that anyone owes “so long as he remains within our territory.” Furthermore, Gray then confirmed that even non-domiciled aliens are “completely subject to the political jurisdiction” of the United States, drawing upon Daniel Webster’s famous report in Thrasher's Case (p. 693).  Finally, Gray concluded this key paragraph by citing United States v. Carlisle, Calvin’s Case, and specific passages from Hale’s Pleas of the Crown and Blackstone’s Commentaries, none of which lends support to the Government’s domicile theory (pp. 693-94).

In Capital Traction Company v. Hof, 174 US 1, 12 (1899), decided one year after Wong Kim Ark, and also written by Justice Gray, the Court described the ratio decidendi of a case as “the line of thought pervading and controlling the whole opinion.” By that measure, the SG’s contention that domicile was “central” to Wong Kim Ark is a failure. And by that measure, the Executive Order seems clearly unconstitutional.

The Era of Democratic Dissatisfaction

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Richard H. Pildes 

            We live in an Era of Democratic Dissatisfaction.  Over the last 10-15 years, large numbers of citizens have been continuously expressing discontent, distrust, alienation, anger and worse with governments across nearly all Western democracies, no matter which parties or coalitions are in power.  One expression of this dissatisfaction is that democratic governments have become more fragile and unstable.  In just the past couple years, the governments in Germany, France, Portugal, the Netherlands, and Canada have collapsed prematurely, forcing those countries to hold snap elections.  Spain has been forced to hold five general elections in the last ten years, in the search for a stable governing majority; for the same reason, the U.K. held four national elections from 2015-2024 and might well be careening to another one, long before the presumptive five-year term for the current government comes to an end.

            Across nearly all Western democracies, many citizens have come to feel their systems are no longer delivering for them on the issues they care most urgently about.  Four aspects of the way political competition and governance is being transformed as a result illustrate the turbulence of democracy in this era.  First, the traditional center-left and center-right parties that had dominated politics in nearly all these countries since World War II have been collapsing.  When these parties were strong, they were able to form governing majorities either on their own or with one junior partner; as a result, government could more readily deliver on the preferences of electoral majorities.  Second, the voters these parties have been hemorrhaging have moved to insurgent and more extreme parties of the left, right, or more difficult to characterize ideologies.  But it is the new right parties, in particular, that have emerged most significantly as an alternative to the traditional parties and political leaders (the Reform Party in the U.K., the National Rally in France, the AfD in Germany, the Brothers of Italy, the Chega in Portugal, the Party for Freedom in the Netherlands, the Finns Party in Finland, the Progress Party in Norway, the Sweden Democrats, and others).  Across 27 European countries, these new right parties barely registered in 2010, but remarkably now in the aggregate attract the same vote share as the traditional center-left and center-right parties.

Conscientious Objection and Anthropic

Guest Blogger

Skowronek on American Democracy: Gridlock, Presidentialism, and Democratic Faith

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Andrea Scoseria Katz

Having read several earlier versions of Stephen Skowronek’s The Adaptability Paradox, I was struck by the book’s preface, with this arresting new ending: 

This book is going into production just as a new administration is about to take charge. The elections of 2024 have brought our constitutional institutions into a highly charged partisan alignment, and detailed plans for a thoroughgoing shake-up are already in hand. [T]he following pages offer a view from the precipice. Next steps are ripe with hazard. The outlook is frightening. But we did not arrive here suddenly. The situation at hand did not arise out of the blue. The Adaptability Paradox is about how we reached this point. 

At the time those words were written, Donald Trump had already organized a failed electoral coup, twice been impeached, faced multiple criminal charges and numerous civil lawsuits—and been reelected to the nation’s highest office. Even this gave little sense of what lay ahead. Just one long and chaotic year into his second term, Trump has gone further than any other president in using his formal authority to cripple, politicize, and weaponize the power of the federal government. He has emptied out whole agencies, prosecuted political enemies, strongarmed universities and the legal profession into compliance with his agenda, set a federal police force against American citizens, started a unilateral war of choice, and bid to interfere with the upcoming midterm elections. 

How, as Skowronek asks, did we reach this point? The Adaptability Paradox has much to say about Trump’s causes, and his consequences.

Politics and Legal Arguments Can Coexist: a Reply to Drall and Moyn

Guest Blogger

Paul Gowder

Constitutional practice, whether in the courtroom or in the academy, has lots of problems, but one of the main ones is dealing with its dual character as law and politics. Perhaps that’s a controversial claim—certainly it would be controversial to a pure legal realist or an attitudinalist across the hall in political science. I guess it might be controversial to a classical formalist too, but I’m not convinced any of those still exist.

Outside those fairly small groups, I take it that we mostly agree that constitutional law is political in virtue of the following two features (at least):

(1.a) The outputs are influenced by politics. That is, judges’ and justices’ decisions depend in part on their ideology; and

(1.b) The inputs are influenced by politics. That is, the legal arguments that advocates make are influenced by, among other things, social movement advocacy, doctrinal entrepreneurship (the most famous recent example, which Drall and Moyn discuss at length, being the surprise impermissibility of ordering people into commerce), and extended programs of strategic advocacy and theory-building motivated by political goals, whether carried out by Charles Hamilton Houston, Ruth Bader Ginsburg, or Leonard Leo.

I take it that we also mostly agree that constitutional law is legal in virtue of the following four features:

Constitutional Democracy in Crisis? II TOC

Mark Graber

The final version of the second edition is now at Oxford University Press.  We have amazing chapters and authors.  The most comprehensive study of democratic decline and resilience throughout the world.  Much thanks to Mark Tushnet, Sandy Levinson, and Antonia Baraggia for their editorial help.  All publicity is good.  TOC below.

CONSTITUTIONAL DEMOCRACY IN CRISIS? II

TABLE OF CONTENTS

1.     Antonia Baraggia, “Introduction,”

PART ONE: BACKGROUND

2.     Keith E. Whittington, “Defining Constitutional Crises”

3.     Zachary Elkins, “Is the Sky Falling? Constitutional Crises in History Perspective”

4.     Tom Ginsburg and Aziz Z. Huq, “Defining and Tracking the Trajectory of Liberal Constitutional Democracy”

5.     Laura Gamboa, “Democratic Resilience in the 21^st Century”

6.     Kim Lane Scheppele, “The Frankenstate, Revisited”

7.     Mark Tushnet, “Proto-Authoritarianism and Abusive Constitutionalism”

PART TWO: COUNTRIES

8.     Vicki C. Jackson, “Knowledge Institutions and Constitutional Democracy’s decline: a U.S. Case Study”

9.     Mark A. Graber, Mark Tushnet, Sandy Levinson, and Antonia Baraggia, “Letters from the Editors: Democratic Decline in the United States”

10.  Emily Zackin, “Constitutional Democracy and the U.S. States”

11.  Mariana Velasco-Rivera, “Understanding Mexico’s Democratic Decline”

12.  David Landau and Raul Sanchez-Urribarri, “Courts and Constitutions in an Evolving Autocracy: Venezuela”

13.  Marcela Prieto Rudolphy and Sergio Verdugo, “Not a Zombie Constitution: Limited Resilience and Chile’s Unfinished Constitutional Journey”

14.  Emilio Peluso Neder Meyer, “Brazil: Between Erosion and Collapse”

15.  Erin F. Delaney and Julie E. Smith, “The UK Constitution: Parliament on the Precipice”

16.  Nicoletta Perlo, “When Democracy Bleeds: Constitutional Rot in France”

17.  Monica Claes and Joost Sillen, “Guardrails under Strain: the case of the Netherlands”

18.  Michaela Hailbronner and Felix Oldenberg, “Right-Wing Extremist and Militant Democracy in Germany”

19.  Victor Ferreres Comella, “Constitutional Crisis in Spain: The Rise and Fall of Catalan Secessionism”

20.  Giuseppe Martinico, “Is Italy a Case of Constitutional Democracy in Crisis?”

21.  Wojciech Sadurski and Anna Wójcik, “Constitutional Crises in Poland: An Uneasy Pathway to Democratic Restoration”

22.  Jens Woelk, “The Western Balkans: ‘Stabilitocracy’ or Democratic Transformation?”

23.  Yaniv Roznai and Noam Gidron, “Israel – Populism, Polarization and the Crisis of Democracy”

24.  Francesco Biagi, “Tunisia: The Illiberal Populist Project of an Unconstitutional Constitutional Scholar”

25.  Rabiat Akande, “Constitutional Democracy in Crisis? A View From Nigeria”

26.  James Thuo Gathii, “Kenya’s Debt Induced Constitutional Crisis: 2023-25”

27.  Penelope Andrews, “Constitutional Crisis or Mere Growing Pains: Reflections on 30 Years of South African Democratic Constitutionalism”

28.  Madhav Khosla and Milan Vaishnav, “India after Democracy”

29.  Geser Ganbaatar, “Democratic Backsliding in Mongolia”

30.  Keigo Komamura, “The Death or Reincarnation of the Constitution of Japan: A Nation of ‘Constitutional Change Without Amendment”

31.  Chien-Chih Lin, “Constitutional Crisis in Taiwan: Domestic Factors, External Factors”

32.  Joel Colón-Ríos and Sir Geoffrey Palmer, “New Zealand: An Exception to Democratic Decline?”

33.  Rosalind Dixon and Anika Gauja, “Australia’s Non-Populist Democracy? The Importance of Electoral Design & Institutional Adaptation”

PART III: CHALLENGES

34.  Thomas M. Keck, “Free Speech, Constitutional Democracy, and Democratic Backsliding”

35.  Yasmin Dawood, “Electoral Resilience and the Democratic Governance Model”

36.  Jeff King and Octávio Luiz Motta Ferraz, “Health Emergencies and Democratic Erosion: did the Covid-19 pandemic help autocratization?”

37.  Bojan Bugaric, “When Populism Meets Neoliberalism: Constitutional Order in Crisis”

38.  Susan-Rose Ackerman, “Kleptocracy and Corruption’s Impact of Democracy”

39.  Kamala Sankaran, “Identity and Constitutional Design”

40.  Ayelet Shachar, “The Inversion Paradox: Majorities Taking on the Minority Label”

41.  Sanford Levinson, “Reflections on Secession—and World Government”

42.  Ran Hirschl, “A Constitutional Crisis of Scale”

PART IV: CONCLUDING OBSERVATIONS

43.  Ming-Sung Kuo and Hui-Wen Chen, “Finding the Place in Constitutional Democracy”

44.  Mark A. Graber, “Navigating the Pluralist Autocracy Challenge to Contemporary Constitutional Democracy”

The Avoidant Constitution?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Noah A. Rosenblum

*

The Adaptability Paradox raises a profound and challenging question about the way the Constitution works. Steve uses that question to retell the history of American government as the shift between a series of different settlements, which has only recently broken down. I wonder, though, whether the book suggests a different historical account, one that emphasizes not consensus, but dissensus. In this way, his book points us towards a new approach to Constitutional theory—and new historical and political projects that would go with it.

The New American Adaptability Paradigm: Empire or Federation?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Rogers M. Smith 

Stephen Skowronek’s The Adaptability Paradox: Political Inclusion and Constitutional Resilience is grimly persuasive. The U.S. Constitution proclaimed that “We the People” would govern. But it won adoption only by also tacitly promising that the interests of the most powerful among the people, especially the propertied, land-hungry, often slaveholding white Christian men who led the American Revolution and designed its new political system, would not be disrupted, would more likely be protected and advanced. The original promise of popular self-governance has fueled pressures for changes in that system all through its history, and major changes have come--some through constitutional amendments, most notably those of Reconstruction, banning enslavement and racial disfranchisement, some through fundamental additions to the original institutional arrangements, most notably the modern administrative state, devoted to economic regulation, some redistribution, and civil rights. But those democratizing adaptations gained the limited success that they have had because they were accompanied by new protections for powerful interests. Jim Crow laws and practices sheltered the white landholders of the South up through the New Deal. Business corporations have benefited from their secure representation among the experts serving as administrative regulators up through the present day.

Now, with Americans across the spectrum angry at political, economic, and administrative elites, demands for democratization are testing the adaptability and resilience of the American constitutional system perhaps more than ever before—because now the demands are on behalf of diverse groups of Americans wide enough to encompass virtually the entire nation, making the threats to powerful interests, and the institutions that protect them, greater than ever. It is not clear that the kind of auxiliary institutional adjustments or even amendments that in the past sufficed for adaptations, bracketed by much continuity, can do the job this time. So, Skowronek concludes, “a fundamental reassessment of our basic governing arrangements might finally be in order.”

“Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

Sandy Levinson

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

There is much that one can say about Stephen Skowronek’s important new book, which I read in manuscript and immediately began assigning, in part, to courses I taught on reforming the United States Constitution at the Harvard Law School.  One of its many virtues is its accessibility to all potential audiences.  It deserves a wide readership and, more to the point, discussion.  What I want to do here is to focus very closely on the title of the book:  The Adaptability Paradox:  Political Inclusion and Constituitonal Resilience.  The “paradox” he points to suggests some very disturbing features of American constitutionalism from its outset to the present day.

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

Guest Blogger

Pranjal Drall and Samuel Moyn

Our first two posts have analyzed how marginal legal positions are politically mainstreamed and surveyed that normalizing process in the great case on birthright citizenship, Trump v. Barbara, so far.

Before long, even those who thought the government’s position was laughable or dishonest end up arguing over the “true” meaning of the 1866 Civil Rights Act, whether it is appropriate to use private letters, and whether the holding in Wong Kim Ark included a domicile requirement. The open rage and the strategic awareness, visible on social media, are filtered out by the time the arguments reach the merits stage. Of course, they are professionally impermissible in oral argument. That is what legalism, pretending the law already resolved the dispute even as it is being pushed somewhere new, requires.

The benefits of liberal and left engagement in this manner are unclear, and their downsides stark. We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway, and it could shift the right left as much as it shifts the Constitution right. And perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

Too Much or Too Little Adaptation?

Guest Blogger

Balkinization Symposium on Stephen Skowronek, The Adaptability Paradox

JB

This week at Balkinization we are hosting a symposium on Stephen Skowronek's new book, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

We have assembled a terrific group of commentators, including Elizabeth Beaumont (UC Santa Cruz); Nikolas Bowie (Harvard); Andrea Katz (Washington University), Jeremy Kessler (Columbia), Sandy Levinson (Texas), Robert Mickey (Michigan), Rick Pildes (NYU), Noah Rosenblum (NUY), Rogers Smith (Penn), and Emily Zackin (Johns Hopkins).

At the conclusion, Steve will respond to the commentators.

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

Guest Blogger

Pranjal Drall and Samuel Moyn

The obscure prehistory of the campaign against birthright citizenship by itself suggests that the dynamics of credible legal interpretation are political in nature.

The revisionist case started with Peter Schuck and Rogers Smith, Yale professors who published their book Citizenship Without Consent in 1985, contending that the Fourteenth Amendment’s phrase “subject to the jurisdiction thereof” left room for Congress to decide whether the children of unauthorized immigrants are constitutionally guaranteed birthright citizenship. The book was widely ridiculed, rejected by Congress, and dismissed by the Office of Legal Counsel.

For three decades, the same basic legal argument failed to gain traction because no political coalition existed to carry it forward. White supremacists Wayne Lutton and John Tanton used the Schuck and Smith book as evidence that scholarly opinion supported overturning birthright citizenship without a constitutional amendment. The Social Contract, a magazine run by Lutton, published several articles pushing the argument during the 1990s. Rep. Bilbray of California, who would later co-chair the Federation for American Immigration Reform (FAIR), introduced a bill in 1995. The House Immigration Reform Caucus was established in 1999 and had 11 members. By 2005, membership had grown to 95 members but it was still unsuccessful in trying to force a vote on legislation to revoke birthright citizenship.

Although a few lonely stalwarts kept interpretive history alive on the margins, there was no institutional infrastructure or elite political constituency to convert that demand into a credible constitutional claim. John Eastman, who later led the legal effort to overturn the 2020 election, kept building the academic case alongside Edward Erler. They pushed the argument—that the Citizenship Clause required “complete” political allegiance, not mere territorial presence—in law reviews, Heritage Foundation white papers, Federalist Society debates, and in op-eds. Eastman even brought this argument to the Supreme Court in Hamdi v. Rumsfeld in 2004. Yet Justice Scalia disposed of it in passing, calling Yaser Hamdi, born in Louisiana to parents with temporary visas and later captured fighting against the United States in Afghanistan, “a presumed American citizen.” The issue was still live enough that Senator Schumer pressed Justice Alito on the Citizenship Clause during his 2006 confirmation hearing. Rep. Nathan Deal introduced a bill in 2009 that attracted 95 co-sponsors. In 2011, Republican state lawmakers in Arizona, Oklahoma, Georgia, and Pennsylvania introduced bills designed as test cases for the Supreme Court. But these efforts did not materialize and to our knowledge not a single bill was actually voted on.

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.”