Recovering Reconstruction

Gerard N. Magliocca

To build on Mark's post, I want to point out that there are significant obstacles for lawyers who are inclined to interpret Reconstruction broadly (or just correctly), let alone for those who aren't.

First, there are no detailed notes on the discussions of the Joint Committee on Reconstruction, which was created 150 years ago this month. While Madison's Notes on the Constitutional Convention are flawed (for example, they were not published until long after the fact and were revised substantially by him after 1789), at least we have some sort of record of what was said in Philadelphia.  For the Joint Committee, by contrast, we have only a journal with bare-bones minutes.  Imagine how much constitutional debate would have been enriched if we knew how John Bingham, Thaddeus Stevens, and the others on what amounted to the Second Constitutional Convention said behind closed doors.

Second, there is no Federalist Papers for Reconstruction.  Bingham and Stevens never had the time (or probably the motivation) to write a series of detailed essays defending and explaining their work.  Courts and lawyers, though, often need this sort of explication to understand the context of the text that they are required to apply.

Third, there is no equivalent of Farrand's Records on the Reconstruction Amendments.  Good luck trying to find a single source that nicely organizes the debates of the Thirty-Ninth Congress, the ratification debates in the states, or the public statements and private letters of those Founders.

There's nothing that we can do about the first two problems, short of a miraculous discovery of a lost manuscript, but we can address the last problem.  Perhaps the best way to honor Reconstruction on its sesquicentennial is to start creating a definitive collection of its primary sources.  This is not a sexy task and is probably too much to ask of one person, but we would all benefit from such an edition.
Posted 9:40 PM by Gerard N. Magliocca [link] (171) comments

The Copperhead Court?

Mark Graber

Posted 2:39 PM by Mark Graber [link]

Merry Christmas, Kim Davis! [UPDATED]

Marty Lederman

Newly elected Kentucky Governor Matthew Bevin yesterday issued an executive order directing the Kentucky Department of Libraries and Archives to create and promulgate a new marriage license form, to be used by County Clerk's Offices throughout the Commonwealth.  The new form would not itself make any reference to the Clerk's office, or to the Clerk, as such.  It would, however, require the "issuing official" to record his or her name and title, and the county in which the license was issued.

Which official would sign the license in a particular county?  Ordinarily, the County Clerk, because a provision of Kentucky law (KRS § 402.080) states that a license “may be issued by any county clerk,” and another provision (KRS § 402.100) provides that “[e]ach county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license.”  As I explained here, however, the latter provision also indicates that the license may, alternatively, be issued by a deputy clerk:  It specifically states that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.”  Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.”

Therefore, in a county such as Rowan County, where the Clerk--Kim Davis--refuses to issue such a license, a Deputy Clerk can do so using the new form.  (The County must provide at least one clerk willing to sign it--it'd be a violation of federal constitutional law to compel couples to travel to another county to obtain  a license.)  In Rowan County, that willing Deputy Clerk has been Brian Mason.  If the Department of Libraries and Archives complies with the Governor's new Executive Order, presumably Mason will sign the new form.

Perhaps this accommodation will satisfy everyone concerned, even though (ironically?) Mason will now include on the marriage form two pieces of information that Kim Davis has insisted he not include on the licenses he has been issuing since September 14th--namely, the name of Rowan County, and his title, Deputy Clerk.  (See my earlier post here.)  [UPDATE:  Davis has informed the trial court that use of the new license form will "accommodate[] and protect[] Davis’ (and others’) sincerely-held religious beliefs, and also maintain[] a uniform marriage licensing scheme and create[] a new uniform marriage license form that is authorized by executive order and also plainly valid and indisputably recognized throughout the Commonwealth of Kentucky."]

Here's hoping this saga is, finally, coming to an end.

One legal point of note:  In his executive order, Governor Bevin reasoned that this accommodation was required by the Kentucky Religious Freedom Restoration Act, KRS 446.350, because use of the previous form "substantially burdened" certain Clerks' "refus[al] to act in a manner motivated by a sincerely held religious belief."  (That's a quote from Kentucky RFRA, which reads differently from--and more broadly than--the federal RFRA, which refers to substantially burdening "a person’s exercise of religion.")
Posted 7:51 PM by Marty Lederman [link]

Breaking News: Political Parties Try to Enact Policies that Strengthen Their Coalition and Weaken Their Opponents'

Mark Tushnet

Posted 2:51 PM by Mark Tushnet [link]

The Status of the WPR: Savage Responds (updated)

Stephen Griffin

Charlie Savage has done me the favor of responding to my post on (essentially) the constitutional status of the War Powers Resolution in Republican administrations.  It's worth reading, although I suspect we are about to really get into the weeds.  I'll reply after I have a chance to assemble my thoughts.

So now I'm focused, but before I reply directly to what Savage said, I'll introduce a new point, just for fun.  One assumption common to recent discussion, including Savage's book, was that the WPR's 60 day limit was first exceeded only in the 1999 Kosovo operation.  I'm not so sure.  On a normative level, at least, if one uses the sorts of arguments that were made against the Obama administration in the context of the Libya operation -- well, the Reagan-era operation to reflag Kuwaiti tankers during the Iran-Iraq War surely qualifies.  You can check out the events of "Operation Earnest Will" on Wikipedia.  For those of us who were current-events junkies at the time, you might remember this was a large-scale naval operation lasting more than a year that involved exchanges of fire and...actual combat involving US personnel in harms way(!), something that wasn't true for Libya.  So why didn't this raise a big WPR issue?  Well, it did.  In fact, this operation was one of the reasons influential members of Congress of both parties concluded the WPR was unconstitutional, defunct or both at the end of the 1980s.  The dispute that resulted is well covered in Barry Blechman's The Politics of National Security.

My partisan-based approach helps explain why this didn't register as a WPR "precedent."  It wasn't a precedent for Democrats because they weren't in the White House.  It could have been a precedent from a Republican perspective, but it's pretty clear that Republicans already believed the WPR was unconstitutional.  This takes me back to Savage's evidence.

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Posted 11:59 AM by Stephen Griffin [link]

By Undermining Unions, The Roberts Court Will Do Still More Damage to Our Democracy

Guest Blogger

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Posted 2:59 PM by Guest Blogger [link]

ASPLP Conference at AALS, January 6th, 2016

Guest Blogger

James Fleming

The annual conference of the American Society for Political and Legal Philosophy, on "Privatization," is to be held in conjunction with the annual meeting of the Association of American Law Schools, on January 6, 2016, in New York. It will take place in the Riverside Ballroom, Sheraton New York Times Square Hotel.

The link to the program on the ASPLP website is here. The conference features prominent scholars in law, political science, and philosophy. Registration is not required.
Posted 2:50 PM by Guest Blogger [link]

The constitutionally critical, last-minute correction to the Paris climate change accord

Marty Lederman

Early on Saturday, in Paris, the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change released this document, which was represented to be the "final draft" of the historic climate-change agreement.  French Foreign Minister Laurent Fabius, who was heading the United Nations conference, called it “the best possible text,” one that resolved points of contention that had taken negotiations "into overtime."  “In this room you are going to be deciding on an historic agreement,” Fabius told the nearly 200 delegates.  “The world is holding its breath.  It counts on all of us.”

No so fast.   The final plenary meeting opened . . . but was suddenly, and mysteriously, suspended.  Everyone's breath would have to be held a bit longer.

What was the problem?

Take a look at page 21 of the purported "final draft," and Article 4.4 in particular:

Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances. 

According to that "final" version, whereas "developing" country Parties "should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances," the developed country Parties--including the United States--"shall continue taking the lead by undertaking economy-wide absolute emission reduction targets."

The word "shall" apparently had been added at the last minute--reportedly a mistake made by "fatigued" staffers.  It was only a tiny, one-word change . . . yet it was a scrivener's error the United States could not live with.

Why not?  Because the word "shall" would have established a legally binding obligation under international law--one that the U.S. delegates apparently thought would (as a matter of U.S. constitutional law) require the approval of either two-thirds of the Senate or majorities of both Houses of Congress.  And such legislative approval is, to say the least, not forthcoming anytime soon.  (I explained the critical constitutional difference between nonbinding and binding agreements--in the context of the recent Joint Comprehensive Plan of Action regarding Iranian nuclear capabilities--in this post with Jack Goldsmith, in the second half of this post, and in this post.)  [UPDATE:  Actually, the determinative question is not so much whether the agreement as a whole is in some sense "binding," but instead whether any of particular provisions of the agreement impose the sorts of binding obligations that would trigger the requirement in U.S. constitutional law for Senate or congressional approval.  As Daniel Bodansky writes, in a very useful, concise paper on such questions in the context of the Paris accords:  "Treaties often contain a mix of mandatory and non-mandatory elements. . . .  [T]he Paris agreement might contain a mix of mandatory and hortatory provisions relating to parties’ nationally determined contributions and other issues. For example, it might include commitments that parties maintain, report on, and update their NDCs throughout the lifetime of the agreement, but make the achievement of NDCs only hortatory."  As one U.S. diplomat is quoted as saying, the Paris accord is not subject to Senate or congressional approval because "[t]he [emissions] targets are not binding; [and] the elements that are binding are consistent with already approved previous agreements.”]

Back in October, in fact, the State Department had explained to Senator Corker, Chair of the Senate Foreign Relations Committee, that the "intended nationally determined contribution reflected in the U.S. 'INDC' submission [was] not intended to constitute an obligation the United States must fulfill under international law, and the United States considers that the Paris agreement should reflect that approach more broadly."  Accordingly, the State Department wrote, the United States is not “seeking an agreement in which Parties take on legally binding emissions targets.”

Accordingly, when the U.S. delegation tripped across the word "shall" on Saturday afternoon, Secretary Kerry insisted that Article 4.4 revert back to use of the word "should"--which would make the first sentence of Article 4.4 a nonbinding goal, rather than an obligation, of developed country parties such as the U.S., and thus something to which the President, acting alone, could commit the United States.

The French reportedly warned that if the United States opened up the document to further changes, the whole, delicate deal might fall apart, seeing as how other nations--India, in particular--were also seeking last-minute changes.

For Kerry and the United States delegation, however, it was understandably a nonnegotiable demand.  As the Secretary would say in his press briefing in Paris later last night:

[T]he bottom line is that when I looked at that, I said, “We cannot do this and we will not do this. And either it changes or President Obama and the United States will not be able to support this agreement.”  And we made it crystal clear that every text up until this particular one had a different wording.  So it wasn’t hard for them to realize that somebody had made a mistake, and they accepted responsibility for it. . . .  So we kept faith with our own negotiating standards and what we promised to Congress and the American people.

And so the wording of the first sentence of Article 4.4 was changed from "shall" to "should"--see the "revised" version of the "final draft," released late yesterday . . . and that would appear to make all the constitutional difference.*

__________________________
* Will it make a practical difference, in terms of parties' compliance with the agreement?  Hard to say.  As Daniel Bodansky writes:  "Thus far, it has been next to impossible to answer this question empirically.  To do so, one would need to hold all other factors constant, and vary only the legal form of an agreement. Despite significant efforts over the last two decades to determine the significance of legal bindingness internationally, we still do not have any definitive answers."
Posted 6:47 PM by Marty Lederman [link]

Ted Cruz's Supreme Court Memos

Gerard N. Magliocca

If Ted Cruz becomes the Republican presidential nominee next year, then he would be the first Supreme Court clerk ever nominated for President.  (Indeed, I think he would be the first law clerk of any sort nominated for President, though I'd have to give that some more thought.)  In my view, the voters have a right to see the memos that Cruz wrote to Chief Justice Rehnquist during his clerkship.

The Rehnquist Papers (which are held by the Hoover Institution at Stanford) are not open after 1981, as the Chief Justice stipulated that his papers should remain closed so long as a Justice that he served with is still alive.  Nevertheless, Senator Cruz may have retained copies of the memos that he wrote to the Chief.  If not, he could request that they be made available to the public.  Ordinarily, the wishes of a Justice with respect to his or her papers should be followed, but I think when a former law clerk seeks the White House an exception is justified if the clerk/candidate consents.

Of course, I have no idea what Cruz worked on during the 1996-'97 Term, but some of the notable cases from that Term include:

Printz v. United States (the anti-commandeering principle)
Clinton v. Jones (presidential immunity from civil litigation)
Washington v. Glucksberg (the right of assisted suicide)
Boerne v. Flores (RFRA and Section 5 of the Fourteenth Amendment)

I'm sure some Republican primary and caucus voters would be interested to see what the Senator thought about these and other important matters that came before the Court at that time.



Posted 9:01 PM by Gerard N. Magliocca [link] (205) comments

Savage on War Powers

Stephen Griffin

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Posted 4:05 PM by Stephen Griffin [link]

Lesser Schools

Mark Graber

Is anyone else wondering whether members of the Bush family, members of the Kennedy family, and members of other prominent families (including presumably members of the Scalia family) would have been better off matriculating at lesser universities and graduate programs rather than attending a school higher than their numbers merited that admitted them on the basis of their family connections.
Posted 7:45 AM by Mark Graber [link]

Why is Trump Polling So Well?

Gerard N. Magliocca

I once wrote an article on Huey P. Long, the legendary "Kingfish" of Louisiana politics. In response to a comment that one of his proposals was impractical, Long allegedly said:  "Yeah, but by the time they figure that out, I'll have something else for them." I think this sums up Donald Trump rather well (along with his Renfield, Ted Cruz).  I'm open to voting for a Republican for President, but not those two gentlemen.

Why, then, is Trump polling so well?  I'm going to try to answer that with an anecdote, which is admittedly a poor form of evidence, but this one has stuck with me.  One day years ago a student came to my office to ask about doing an independent study paper with me.  The paper, she explained, would be about internal groups that wanted to impose sharia law on the United States and what we should be doing to stop them. I asked her what made her think that such a thing could happen, and her response was that these groups "had a plan" that required an aggressive response. I then gently pointed out that I could have many plans with no chance of success (mind you, she wasn't talking about some terrorist attacks; she was talking about the imposition of sharia law by force).  No matter what I said, though, her answer was that I was naive or just too sanguine about the threat.  We didn't end up working together.

How could a smart person believe this, I wondered?  The answer, I've come to see, is that convincing someone that something they believe is urgent is, in fact, not urgent is exceptionally hard.  And when someone authoritative (or, at least, authoritative-sounding) says that the the threat is urgent and that extraordinary measures are necessary, the critics become even more naive or sanguine.

Of course, being a sanguine person, I believe that there is no silent majority that will endorse Trump or Cruz in a general election.  And I believe, as Jefferson said:

"If there be any among us who would wish to dissolve the Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."     


Posted 4:55 PM by Gerard N. Magliocca [link] (44) comments

On Spiro on Trump in the NYT: No, it's unconstitutional

Richard Primus

Posted 12:20 PM by Richard Primus [link]

The only relevant question at the next debate

Sandy Levinson

The only relevant question at the next Republican debate is 'Would you really  be willing to campaign and vote for Donald Trump to be President of the United States if he received the Republican nomination?"  Anyone who answers "yes" is a scoundrel who should be disqualified from further consideration.  It is as if, say, Hubert Humphrey pledged to support George Wallace if Wallace received the Democratic nomination.  At some point, one has to say no, and that point has certainly been achieved with Donald Trump.  For Paul Ryan to bleat that Donald Trump would be a better president than Hillary Clinton is all you need to know about the gravitas of the Janesville Speaker.

After all, the very first question asked Donald Trump in the first debate was whether he would accept the verdict of the Republican primaries, and after some hesitation he seemed to say yes.  But, of course, everybody treated that as simply a way to assure that he wouldn't run a third-party (which he probably will if he feels treated "unfairly" by Republicans like Karl Rove and Dick Cheney who are actually blowing the whistle on him.

Washington Post columnist Dana Milbank has a strong column comparing Trump to Mussolini.  The most relevant passages, especially relevant for those who have chastised me for calling Trump a fascist, are as follows:

A couple of weeks ago, after Trump said he would consider forcing Muslims in the United States to register in a database, the conservative military historian Max Boot tweeted: “Trump is a fascist. And that’s not a term I use loosely or often. But he’s earned it.”
Trump uses many of the fascist’s tools: a contempt for facts, spreading a pervasive sense of fear and overwhelming crisis, portraying his backers as victims, assigning blame to foreign or alien actors and suggesting only his powerful personality can transcend the crisis. He endorsed the violence done to a dissenter at one of his rallies, and he now floats the idea of making entry to the United States contingent on religion.

Are Republican "leaders" really willing to profess that they would blithely support such a man to be President of the United States?  Recall that Alexander Hamilton helped to engineer the election of Thomas Jefferson, whose politics he despised, because he believed that Aaron Burr was totally unscrupulous and without the republican character necessary to be President.  
Posted 11:31 PM by Sandy Levinson [link] (54) comments

On BDS

Mark Graber

In 1 Samuel 8:20, the original Israelis ask for a king so “that we also may be like all the nations.”  For better or, in my judgment, worse, Israel has become “like all the nations.”  The way in which Israel reacts to terrorist attacks seems no more exaggerated than the way in which Americans and the French have recently reacted, although my sense is fewer Israelis than Americans support Donald Trumpish responses.  This is cause for dismay among those of us who hoped a Jewish state would be more “a light unto other nations.”  We are entitled to demand Israel be special because, if Israelis are going to ask for our support as Jews, then we may insist that nation live up to the best Jewish standards.  An Israel that is like other nations cannot provide reasons for young Jews abroad to identify as Jews and be proud of their Jewish heritage.  But the non-Jewish world has no more right to impose higher Jewish standards on Israel than Jews have to call on the Pope to live up to what we believe are the best Catholic standards.  Perhaps faculty supporting BDS may need mandated cultural competence after all.
Posted 8:12 PM by Mark Graber [link]

Clearing the Brush in Today’s One-Person, One-Vote Case

Nate Persily

Posted 6:45 PM by Nate Persily [link]

Be careful what you wish for in Evenwel, Justice Kennedy

Joseph Fishkin

In another major Texas redistricting case, eight years ago, the Court faced the question of what to do about Congressional District 23.  It was an odd wrinkle in an odd case, and frankly one that no one thought would be the major storyline emerging from LULAC v. Perry—but that is what it turned out to be.  What happened was this.  State legislators wanted to protect then-incumbent Henry Bonilla, a Republican, in a sprawling rural district in West Texas that was closely divided along both racial and partisan lines.  Bonilla (although Latino himself) was not the choice of most Latino voters in his district, and those voters were becoming more and more active.  So what did the state do?  They moved heavily-Latino areas with growing numbers of voters out of the district, and moved other heavily-Latino areas into the district that contained the same number of people, but fewer voters.  The result: same total population, same(ish) Latino population, but fewer actual Latino voters to worry about.  It was a very clever-seeming move, one which preserved the appearance of a Latino-majority district, but one in which minority political power was nothing more than a desert mirage.

Justice Kennedy cried foul.  Writing for himself at the fulcrum of a divided court, aided by some expert lawyering by Nina Perales of MALDEF, Justice Kennedy saw that it was wrong—and held that it was a violation of Section 2 of the Voting Rights Act—to deliberately pair the white areas of the district that had relatively high numbers of actual voters with a distant Latino area that had relatively low numbers of actual voters.  Such a move would predictably block the emerging Latino majority in the district just as effectively as more familiar gerrymandering techniques such as packing and cracking.

Today’s oral argument in Evenwel seems miles away from LULAC v. Perry.  The Evenwel argument took place on the high and arid terrain of abstract theories of voting and representation, not the factually rich, close-to-the-ground inquiries of a Voting Rights Act case.

But make no mistake about it: if the Court decides Evenwel incorrectly, it could inadvertently end up requiring—everywhere, under the Equal Protection Clause—what it correctly prohibited under the Voting Rights Act in LULAC.

The issue in Evenwel is this.  What should be equalized under one-person-one-vote?   Should every district have the same number of people?  Or should they have the same number of eligible voters?

The United States basically says, people.  The plaintiffs say, eligible voters.  The State of Texas says, whichever we want—federalism leaves it up to us.  Justice Kennedy, at oral argument, seemed to be considering yet a fourth answer: “But why is one option exclusive of the other? Why can't you have both? . . . . Why can't you use both?” (p.34)

Mathematically, this is possible.  (Justice Kennedy asked if there were “any studies on this” and indeed there is one, although nobody at oral argument seemed aware of it.)  But here’s what you have to do to make it happen.  If each district is going to have the same total population and the same eligible voter population, then you’re necessarily going to need to pair every area that has a relatively high proportion of eligible voters with another area that has a relatively low proportion of eligible voters.  That’s where you run into trouble.

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Posted 5:10 PM by Joseph Fishkin [link]

Cato Institute debate on "constitutional crises"

Sandy Levinson

The Cato Institute web site today published a piece of mine on "constitutional crises" within the American system, which will be followed in the next week or so by responses from Jacob Levy, Tom Ginsburg, and Richard Albert.  I am obviously grateful to the folks at Cato for giving me this opportunity, and I look forward to reading the response (and then replying to them). 
Posted 3:08 PM by Sandy Levinson [link] (37) comments

America's coming exceptional self-isolation

Sandy Levinson

Put to one side the fascistic suggestion by Donald Trump with regard to barring Moslems from entering the United States and presumably monitoring all Moslem-Americans who are ostensiblly equal citizens entitled to full protections of the Constitution..  And one can even put to one side the obvious legal questions, in terms both of domestic constitutional law and international law, about such proposals with regard to immigrants and visitors.  It is an embarrassing fact, after all, that so long as the Chinese Exclusion Cases remain on the books, it may be the case that the US, as a "sovereign state," has the absolute right to deny entrance on any grounds it sees fit, including religious.  Indeed, it is not unthinkable that Antonin Scalia believes that "sovereign states" within the US have such a right, as the US Supreme Court suggested in the 1837 case Mayor of New York v. Miln, overruled in 1941, but it's not clear that Scalia--or Texas Gov. Greg Abbott--has received the message.


Rather, one might actually raise a pragmatic and amoral  point that one would think a self-professed business genius, who has, by his own assertion, made millions in resorts like Atlantic City, would be sensitive to.  Adoption of such wicked policies would, in addition to everything else, assure that the US would simply for a very long time never again be able to host any international gathering, whether one thinks of the World Cup, the Olympics, or a trade fair.  All of them depend on relative freedom of movement across borders.  Already the US makes it more difficult for foreigners to enter the country, and many countries have retaliated by making it equally inconvenient for Americans to travel abroad.  Thus Brazil and Argentina, to name only two, extract hefty visa charges that are acknowledged quite openly to be a response to the charges the US places on their own nationals when they try to visit the US. 


So why in the world would any international organization pick the US as the venue for its events when other countries would be more welcoming?  Perhaps we will become more like China and North Korea in our hesitation to welcome those about whom we've become hysterical.  Mr. Trump and his allies apparently think that their suggestions would be cost free (except to foreign Others) if adopted.  But not only is there no reason at all to believe that Trump's "policies" would make us safer; it is the also the case, in addition to their betraying what is most admirable about the United States, at least in its self-conception as set out on the Statue of Liberty, that the economic costs would be enormous.  One awaits the next polls, to see what limits there are on acceptance of his idiocy.  If not, then we should be very, very afraid, for all sorts of reasons.  The only silver lining of his continued prominence as a candidate would be the almost certain destruction of the Republican Party as they pay the price for the cynically racist Southern Strategy adopted long ago by Richard Nixon with such effectiveness. 


[UPDATE:  I am chastised in one of the comments for my intemperance in calling Donald Trump a "fascist."  Is he any less "fascistic" that the vaunted "Islamic-fascists" who are the object of vituperation from the Right?  Perhaps neither is "really" fascist if we require, say, commitment to a corporatist organization of society, etc.  So, to be sure, it would be valuable to have serious discussions of what makes one a "fascist," "communist," "socialist," "democrat," "libertarian," and so on.  But there is really no reason to continue treating Donald Trump or his acolytes as mere entertainment (the Huffington Post initial strategy).  He is as dangerous to the stability of the United States as, say, Huey Long or Father Coughlin were during the '30s in the United States or, for that matter, Marie Le Pen in contemporary France.  Does one want to settle for calling him a "dangerous narcissistic authoritarian"?  I would regard this as a friendly amendment.  But it is shameful that some Republican "leaders" continue to treat him with respect.  Lindsay Graham, with whom I agree on very little, is behaving as a truly responsible leader in his own comments about Trump.  He should be commended. 
Posted 10:02 PM by Sandy Levinson [link] (98) comments

A Fourth Path in Evenwel: What Campaign Finance Jurisprudence Tells Us About Legislative Redistricting

Guest Blogger

Michael T. Morley


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Posted 9:21 AM by Guest Blogger [link]

Supreme Court paves the way to hear the DAPA immigration case this Term . . .

Marty Lederman

. . . assuming it decides to hear the case, that is.  Lyle Denniston has the details:  The Court will likely consider the petition at its January 15 Conference, so that the case could be argued in April if the Court decides to grant cert.

For more on the case, see my posts here and here -- and the Balkinization blog symposium from last year.
Posted 6:02 PM by Marty Lederman [link]