Virginia Is For Vengeance

Gerard N. Magliocca

Presidents sometimes try to wield the criminal law against their political opponents. It never works. Jefferson went after Aaron Burr. That failed. FDR targeted Andrew Mellon. That was a flop. And so on. The Comey indictment (and the others that will surely be brought) will meet the same end.

The Mellon example is instructive. He was our most powerful Treasury Secretary not named Hamilton. Mellon was also wealthy. FDR wanted him prosecuted on criminal tax fraud charges. Robert Jackson, newly arrived at the DOJ, objected that a criminal charge was unwise and unwarranted. He was overruled. A federal grand jury in Pittsburgh then refused to indict Mellon, which was a major embarrassment for the Government. A civil tax case ensued that was still going on after Mellon died.

Grand juries work best when they are asked to indict well-known members of a local community on flimsy charges. Mellon was famous in Pittsburgh because (you might say) he owned half of town. James Comey, by contrast, is not a local celebrity. He just lives in Virginia. Nevertheless, the grand jury asked to indict Comey rejected one of the Government's three charges. That is unusual. There is some confusion about what else happened, which should come as no surprise given the resignation of the prior interim U.S. Attorney. Comey's defense attorneys must be licking their chops.

Symposium Response Part 2: Centering and de-centering race

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Dylan C. Penningroth

Looking at the Symposium overall, I think these posts have drawn out what I hope is a creative tension in the book’s approach to race. On the one hand, the book invites law scholars to move race and race relations toward the center of the curriculum and the profession. But then it asks historians, and especially African American historians, in essence to de-center race relations. There were both conceptual and pragmatic reasons behind this dual approach. Conceptually, I felt that the history of race had too often been conflated with the history of Black people, and that this conflation inadvertently wound up treating African Americans instrumentally—as something more like a window into the soul of America than as people worth studying in themselves. From a purely pragmatic point of view, using local court records practically compelled me to think hard about centering race: the overwhelming majority of the cases involving Black people were between Black people. Obviously, white supremacy produced these skewed proportions, and yet it seemed important to take seriously what Black-Black cases had to say, especially when I saw other kinds of sources saying similar things. It is by now axiomatic that Black people fought for “independence in their working lives,” autonomy for “their families and communities,” and “equal citizenship” in the body politic.[1] But what did autonomy mean to a Black tenant farmer like Nate Shaw (Ned Cobb) who said that his own father treated him “just like slavery”? What did equal citizenship mean to Black women who were treated as second-class citizens in their churches and fraternal orders, the citizenship that mattered most (or at least most immediately) to Black people before the movement?

Symposium Response Part 1: The strange career of civil rights

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Dylan C. Penningroth

Many thanks to Jack Balkin and Balkinization for hosting this symposium. I’m grateful to Carol Rose, Evelyn Atkinson, Ian Ayres, Mark Graber, Mark Tushnet, and Steve Griffin for taking the time to read and provide such probing comments on Before the Movement. It has taken me awhile to post my response, in part because it has been so much fun to absorb and learn from their comments.

The contributors beautifully bring out several of the book’s main themes, and space allows me to touch on only some of their constructive critiques. The first, as Professor Griffin notes, is how Black people used and thought about law from the 1830s to the 1970s, how a subset of nineteenth-century rights and privileges came to be understood as “civil rights,” and how that term, over the next century or so, slowly came to stand for the principles of nondiscrimination and anti-humiliation that animate much of modern civil rights law. If had been more daring and witty, I might have titled the book “The Strange Career of Civil Rights.”[1]

The second theme is the sources I used to tell this story. Of course, I am far from the first historian to go asking big questions of small courts. Since the early 2000s, a number of legal historians have made the trek to the courthouse door, including Laura Edwards, Melvin Ely, Sarah Barringer Gordon, Martha Jones, Anne Twitty, Kimberly Welch and, more recently, Sarah L. H. Gronningsater. Aside from the physical and logistical challenges of researching in under-funded facilities that are not really “archives,”[2] all of us have confronted the analytic and conceptual challenges of taking the legalities latent in local court records and relating them to the “mandarin materials,” as Robert Gordon termed them, of appellate case law, statutes, and treatises.[3] But increasingly, on days when I walked past the inevitable Confederate statue to beg another circuit clerk’s permission to rummage around in the courthouse attic, I felt the presence of a different intellectual tradition than perhaps the ones we had been trained in; that we were actually following in the footsteps of earlier generations of Black historians, who had to negotiate with the gatekeepers of official records in the unfathomably harsher environment of the 1930s and 40s. Only a few of those earlier historians were professional scholars, like Luther Porter Jackson. Mostly they were lay historians—church officers, like A.M.E. Bishop Richard R. Wright,[4] or lawyer-memoirists, like Thomas Calhoun Walker,[5] or keepers of family history, like my great-great-uncle Thomas Holcomb. What they wanted to demonstrate was that, right in the maw of a nation dedicated to white supremacy, “free Negroes” and their descendants had “made a record” of achievement in education, landownership, and trade.[6] And they believed that record entitled them to “the good will and respect of [their] neighbors and fellow citizens,”[7] as Jackson put it—or what activists called “public rights”[8] or “first-class citizenship.”[9] These earlier Black historians’ linking of common-law rights to “classes” of citizenship eventually helped inform my argument about how the idea of civil rights changed. Often stuffed with thumbnail sketches and hopeful statistics about Black churches and property ownership and literacy, these works were more than mere “encyclopedic pep talks” or “storehouses of uplift ideology” in the mold of Booker T. Washington.[10] Whatever else they were, they also hinted at a history of Black legal thought, one that seemed to me to be in dialogue with questions of racial justice but not contained by them. More immediately, those early Black historians seemed to suggest that there were certain continuities across the gulf of the Civil War: that white people more or less took it for granted that Black people could own and trade things.[11] That, at least in the realm of civil rights, the transformation came gradually, raggedly, and perhaps rife with irony.

We might explain this continuity in terms of ideology—specifically, white people’s investment in the belief that law was not (just) an instrument of class power. More frequently, as Professor Graber points out, I look to Derrick Bell’s interest-convergence theory. This was a “triumph of informal property over formal law,” Professor Rose writes, where wide swaths of white southerners—including huge numbers of non-slaveowning whites—enjoyed easy access to cheap, convenient goods and services from enslaved Black people, an enjoyment procured not (just) through “brute compulsion” but through legal marginality and indeterminacy.[12] White southerners benefited precisely from the law’s refusal to speak clearly and consistently about slaves’ property and contracts. (To which I would add that there are uncomfortable resonances with the benefits American citizens enjoy from the work of undocumented immigrants today.)

Balkinization Symposium on Serena Mayeri, Marital Privilege-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Kimberly Mutcherson, The Staying Power of Marriage Inequality

3. Julie C. Suk, Promoting Equality and Marriage

4. Clare Huntington, Understanding the Roots of Today’s Marital Inequality

5. William N. Eskridge Jr., Marital Supremacy, Liberalization & Privilege

6. Douglas NeJaime, From Status to Function

7. Kristin Collins, Marital Privilege and Immigration Law

8. Serena Mayeri, Response to Commentators

Oral Argument as Eulogy

Gerard N. Magliocca

In Gideon v. Wainwright, Justice Harlan concurred that Betts v. Brady should be overruled but complained that Betts "is entitled to a more respectful burial." The same could be said for Humphrey's Executor, either on the interim docket or when Trump v. Slaughter is decided.

That said, I'm not sure whether to envy the attorney who will argue Slaughter. That person will surely lose. But going in knowing that you will lose may provide the freedom to say whatever you want. 

Response to Commentators

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Serena Mayeri

I am immensely grateful to each of the symposium participants for taking time to engage so thoughtfully with this book, and for the countless ways their intellectual influence and personal generosity enriched the project over the dozen-plus years of its gestation. I can’t possibly do justice here to each set of comments, much less the authors’ own scholarly oeuvres and impact, so offer just a few reflections on some of the themes their posts raise.

Jawboning Late Night: A Lesson in How Corporate Consolidation Creates Free Speech Problems

Guest Blogger

Daniel Browning

ABC Pulls Kimmel Off the Air

On Wednesday, September 17^th, ABC announced its decision to pull “Jimmy Kimmel Live!” off the air indefinitely following Kimmel’s monologue about Charlie Kirk’s assassination.

Disney’s decision came shortly after FCC chairman Brendan Carr made the following thinly veiled threats against ABC. Carr also called on licensed broadcasters to “push back on” networks and “preempt” content that does not serve local communities. Sure enough, Nexstar, which owns many ABC affiliate stations, announced that it would “preempt ‘Jimmy Kimmel Live!’ for the foreseeable future.” ABC suspended Kimmel shortly thereafter.

Jawboning and the First Amendment

As other commentators have observed, Kimmel’s suspension appears to be a paradigm case of “jawboning”—where the government indirectly censors expression by pressuring some private intermediary to censor the expression directly.

Just last year, in N.R.A. v. Vullo, the Court reaffirmed that government jawboning can violate the First Amendment whenever it coerces a private intermediary to censor speech. In Vullo, a state official offered not to prosecute an insurance underwriter, Lloyd’s, for regulatory infractions in exchange for Lloyd’s’ agreement to sever ties with the N.R.A. The Court held that, by offering the inducement in order to punish the N.R.A.’s speech, Vullo had engaged in unconstitutional coercion.

After Vullo, the constitutionality of government exhortations for private intermediaries to interfere with a third-party’s speech turns on whether the government’s communication is persuasive (constitutional) or coercive (unconstitutional).

Why the Kimmel Case Raises Important First Amendment Issues

Other commentators have called for Kimmel to bring a First Amendment challenge against the government, on the theory that FCC Chair Carr’s threats against broadcasters were unconstitutionally coercive.

In some ways, this does seem to be an easy case. Carr makes vague comments that appear to threaten networks and broadcasters, and ABC suspended Kimmel shortly thereafter. Thus, Kimmel might have an easier time establishing standing than did the various plaintiffs in Murthy v. Missouri. The Court in Murthy held that the various plaintiffs lacked standing, in large part, because they could not show that government pressure caused their injuries. The social media platforms, Justice Barrett reasoned, “had independent incentives to moderate content.”

In other ways, though, the Kimmel case raises to the fore important complexities that the Court has not adequately addressed in its jawboning jurisprudence.

Doctrinally, the coercion/persuasion rule, as developed in Bantam Books and Vullo provides very little guidance to courts in adjudicating jawboning claims. Conceptually, there is a huge gap between government communications that could rightly be labeled “persuasive” and communications that could be called “coercive.”

Consider an example that arose in the Murthy litigation—President Biden’s comment that social media platforms were “killing people” by allowing users to spread misinformation. Persuasion or coercion? I, for one, couldn’t say. The problem here is that there are myriad forms of government pressure that are neither persuasive nor coercive—but are rather somewhere in between.

While Vullo settles the question in clear cases where government pressure can be easily identified as coercion or persuasion, it leaves courts without clear guidance in cases, perhaps like the one here, where government pressure occupies the space between coercion and persuasion.

The much larger, more systemic problem, however, is that the modern corporate law infrastructure makes jawboning both much more effective and much more difficult to challenge in court.

Because traditional media is increasingly owned by a small handful of firms, government jawboning is increasingly likely to prove effective, for two reasons.

First, the government can hold out a regulatory carrot (as relevant in the Kimmel case, approval of an acquisition) in exchange for “voluntarily” censoring expression. For corporate executives, the cost of censorship will be much cheaper than the cost of drawing the government’s ire, especially as the arms race to add subsidiaries creates more nodes at which the government can leverage its regulatory authority.

Second, the consolidation of smaller firms into large mega-firms (like Disney) decreases the cost to the government of targeting disfavored expression. The government only needs to pressure a small handful of firms rather than many.

The corporate landscape that makes jawboning more effective also makes it more challenging for speakers to bring successful First Amendment jawboning claims.

It can often make good business sense for highly consolidated and diversified firms to censor speech even irrespective of government pressure. For example, before deciding to suspend Kimmel, Disney CEO Robert Iger reportedly was hearing from advertisers who feared a conservative firestorm and from Disney employees who reported receiving threats. And because Disney owns an array of subsidiaries, Disney executives had to worry about a Kimmel-related boycott of their theme parks, cruises, merchandise, and other programming. These non-governmental pressures very well could’ve given Disney executives “independent incentives” to suspend Kimmel.

So What Can be Done?

Doctrinally, the  Court in jawboning cases should focus more on whether the government harbored an unconstitutional motive—whether the government intended to censor unfavorable expression—than on whether the government’s communication could be labeled coercive or persuasive. In the alternative, the Court should provide further guidance on how to determine whether the government’s communication with the private intermediary rises to the level of unconstitutional coercion.

More systemically, we should begin to think about corporate consolidation and oligopoly as a free speech problem. As firms become more consolidated and diversified, traditional media, which is crucial for public discourse, becomes more vulnerable to indirect government censorship.

A more durable solution than relying on courts to police government jawboning would involve, first, consumers increasing the costs to firms of capitulating to the government. This bottom-up solution, which would require citizen-consumers to mobilize to protect free speech values, has already proven somewhat effective in the boycott of Target over ending its DEI policies. Indeed, there is some evidence that consumers have already begun to penalize Disney for their capitulation.

Second, taking a more top-down approach, a future Democratic administration should charge the FCC and FTC with considering the free speech implications of corporate consolidation and diversification.

Daniel Browning is a JD Candidate at Yale Law School and a PhD Candidate at Princeton University.  You can reach him by e-mail at Daniel.browning@yale.edu.

Marital Privilege and Immigration Law

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Kristin Collins 

Serena Mayeri’s excellent new book Marital Privilege charts the transformation of marriage as a central fixture in American law and social policy from the 1960s to 2003. Starting in the 1960s, various groups and individuals challenged marriage’s hold on Americans’ options for family formation, their sex lives, and their access to state created entitlements and benefits. These challenges were not part of an organized political or legal movement, as one often finds in stories of legal transformation, but they were numerous and sustained. Liberal feminists challenged the sex-asymmetrical rights and duties that marriage entailed. Black feminists were focused on securing greater autonomy in deciding whether and when to have children – in or out of marriage – and sought supportive communities rather than government surveillance. Mothers and fathers argued that the status designation of illegitimacy harmed children, in part by creating a legal presumption that their fathers had no interest in their wellbeing. Individuals who sought to form non-traditional families challenged family-based zoning laws and housing regulations that were premised on the marital family norm. Lesbian and gay couples struggled for legal recognition and rights in just about every domain of life. Perhaps most famously, individuals who sought to marry across the color line challenged restrictions on interracial marriage.

With these challenges to the regulation of marriage and its legal primacy in view, Mayeri identifies a puzzle: For a good 40 years, as marriage’s place in American law and social policy was contested from multiple directions, and as marriage rates declined, marriage nevertheless remained (and remains) a privileged status in American law. How to explain this outcome? Mayeri argues that even as challenges to marriage’s primacy succeeded in eliminating its more pronounced discriminatory features, those challenges also helped to sustain the privileged legal status of marriage. Moreover, she concludes, as “marriage declined among less affluent Americans, marital status law intensified racial and economic inequality.”

Mayeri offers abundant evidence to support her thesis, but she is also quick to acknowledge that the historical sources she has amassed tell a complicated story. Not only were the sundry challenges to marital status law uncoordinated, many of the key players in her book disagreed about the role that marriage should play in social policy and how its contours should be determined and policed. Here, I will add to the complexity of this story by focusing on a specific field of regulation: immigration.

The Problem of "Popular" "Sovereignty"

JB

From Status to Function

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Douglas NeJaime

In Marital Privilege, Serena Mayeri masterfully shows how challenges to the legal centrality of marriage—and to a specifically heterosexual, gender-differentiated view of marriage—only partially succeeded in altering the content of marriage and its relevance to legal rights and obligations. Ultimately, courts credited claims, particularly on behalf of women and same-sex couples, that made marriage itself a more inclusive and egalitarian institution. But courts rejected claims, particularly on behalf of single parents and poor women of color, that would have reduced marriage’s role in channeling benefits to families. As Mayeri shows, challenges to the understanding of marriage that pervaded law and policy in the mid-twentieth century changed the content of marriage in important ways but, in the end, left marriage’s primacy intact.

For all the distinctions between the regulation of marital and nonmarital life that Mayeri meticulously analyzes, there is a striking continuity that Marital Privilege surfaces. Both inside and outside marriage, to varying degrees, the law shifted away from formal, categorical, status-based regulation toward functional regulation. As advocates for this functional approach argued, the law should treat spouses, partners, and parents “based on what they did rather than who they were.” (p. 81) Across the book, Mayeri unearths a rich array of functional approaches that arose to meet the challenges that confronted marriage and its privilege status. Although scholars have identified and analyzed functional approaches in various settings, Mayeri’s work to synthesize these approaches across domains is novel and important. And it has significant implications for debates raging today over the wisdom of adopting functional standards to address nonmarital couples and parent-child relationships.

Marital Supremacy, Liberalization & Privilege

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

William N. Eskridge Jr. 

In Marital Privilege (2025), Serena Mayeri documents many of the ways that the American law of marriage was transformed between 1960 and 2000 (and somewhat beyond). Earlier scholars have demonstrated how the extensive liberalization of family law was accompanied by policies channeling relationships into what policymakers and most citizens have considered socially productive forms, primarily marriage.[1] In the new millennium, demographers have shown that marriage remains popular among well-to-do and professional couples but is declining among lower-income and working-class couples.[2] Critical scholars have argued that the many discriminations against nonmarriage are constitutionally or normatively wrong and have criticized the disparate racial and income effect of what Melissa Murray calls “nonmarriage inequality.”[3] Building upon and adding to this scholarship, Professor Mayeri argues that the “marriage supremacy” regime holding sway in 1960 had by the new millennium collapsed and had given way to a legal regime of “marital privilege” (pp. 6, 112, 318) that, obviously, benefits the “Haves” in our society and, less obviously, often harms the “Have Nots” (pp. 316-18).[4] This new, discriminatory regime has been challenged by many progressive lawyers and their clients, but largely without success in court.

The Administration’s Self-Created Inability to Make a Deal

David Super

     Throughout Anglo-American history, various kinds of people have been incapable of entering into legally binding contracts.  This has included enslaved persons, married women during the coverture era, children, and persons deemed to lack mental capacity or otherwise under the control of others.  In each case, the inability to contract has been understood as quite debilitating.  Courts upholding aggressive freedom-of-contract regimes have insisted that the ability to enter into enforceable contracts is key to gaining wealth and power. 

     It therefore is remarkable that the Trump Administration has worked so hard to render itself incapable of entering into enforceable deals.  Its inability to enter into binding contracts with private businesses, non-profits, and state and local governments – the result of its so-far successful insistence that it may cancel any contract merely because its policy preferences have changed – will have profound implications for the provision of public services for decades to come.  Its self-created inability to enter into binding agreements with foreign governments – e.g., casually casting aside trade agreements, including ones it negotiated – will significantly curtail this country's ability to get its way in world affairs.  And, most immediately, its self-created inability to enter into binding agreements with Members of Congress may prevent an agreement to prevent a partial government shutdown after September 30. 

     The latter effect is not widely understood.  Since taking office, this Administration has impounded – simply refused to spend – several hundreds of billions of dollars Congress has appropriated for the current fiscal year.  A few of these impoundments the Administration has publicly announced.  The great bulk of them have been done quietly, without complying with the procedures required under the Impoundment Control Act (ICA). 

     Indeed, the Administration endeavored to conceal the extent of its impoundments by brazenly violating a statute requiring it to make public the “apportionment” decisions transmitting appropriated funds to federal agencies.  When the D.C. Circuit finally compelled it to release its apportionments, they turned out to be chock full of restrictions on spending wholly unauthorized by statute that effectively made it impossible for funds to be spent.  Among these were a requirement that agencies seek the Office of Management and Budget’s approval for a “spending plan” prior to obligating funds, giving OMB a vehicle for interposing more obstacles undisclosed to Congress or the public.  By law, apportionments are only supposed “to prevent obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation”.

     The Administration’s demonstrated unwillingness to abide by appropriation laws makes a deal to prevent a government shutdown on October 1 exceedingly difficult.  When temporary appropriations expired in March, Republicans refused to negotiate a new bill with Democrats.  Instead, they simply tabled a bill of their own that purported to continue programs’ funding at prior levels.  It did not:  it shifted several billion dollars from other programs into the Administration’s priorities.  Democrats nonetheless supplied the votes necessary to enact the legislation because this seemed the best way to protect funding for important programs. 

     Since then, however, the Administration has repeatedly disregarded funding levels in the legislation that it wrote.  It turns out, then, that enacting the Administration’s bill did not, in fact, protect funding for key domestic and international programs.  In addition, the request the Administration submitted in June to rescind funding from international programs and public broadcasting clawed back billions that had been a significant part of why Democrats voted for the legislation.  Although Democrats’ ability to filibuster gives them leverage over the passage of appropriations bills, the ICA prevents filibusters and so allows rescissions to pass on party-lines votes. 

     Thus, the Administration has created a situation in which any promises of funding it makes to achieve bipartisan agreement on appropriations bills are utterly unenforceable:  it can either rescind the money on a party-lines vote or simply ignore the appropriations altogether.  We can hope that the courts eventually will enjoin the Administration’s impoundments, but to date they have thrown one obstacle after another in the way of challengers – reinforcing the sense that, even if codified in law, the Administration’s promises are effectively unenforceable. 

     Lest anyone doubt its intentions, the Administration recently released dramatic revisions in OMB Circular A-11, a venerable (and heretofore mostly unremarkable) document setting out the Administration’s understanding of the rules for formulating and implementing budgets.  Among other things, the new A-11 declares that the Administration may disregard the ICA for “delays in obligations or expenditures [to] change the scope or design of existing programs, or develop policies concerning program implementation to align with Administration policy.”  It also declares that the Administration may freeze appropriated funds for 45 days merely by submitting a request for rescission to Congress even if the funds will lapse before those 45 days expire.  (This is the “pocket rescission” theory that finds no support in the text of the ICA and raises serious constitutional concerns.) 

     Thus, the Administration may simply sit on funds for most of the year under the guise of reworking the program “to align with Administration policy” and then submit a formal rescission request to Congress at the end of the year.  If Congress approves the request, the funds are rescinded; if Congress rejects the request or simply fails to act, the funds lapse.  Either way, the appropriation accomplishes nothing for the people it was intended to help.  Thus, Democrats have no reason to believe that the numbers in the appropriations bill for which they vote will mean anything in the real world, especially if they exceed the amounts in the President’s budget proposal. 

     At the moment, Republican leaders are refusing to negotiate with Democrats, bowing to President Trump’s wishes.  They may intend to present Democrats with another take-it-or-leave it bill as they did in March. 

     It is too early to predict if Democrats would vote for a short-term continuing resolution to prevent a shutdown on October 1:  a host of political, legal, and technical factors affect when is the best time for a confrontation.  But Democrats should not regard any concessions they receive in full-year appropriations bills as meaningful unless those bills include concrete measures both to prevent President Trump from impounding the funds and to prevent Republicans from rescinding on a partisan basis funds that were approved on a bipartisan vote. 

     One vehicle for doing this is an amendment that Oregon Senator Jeff Merkley proposed to make the ICA inapplicable to spending for federal fiscal year 2026 (apart from the ICA’s language disavowing any interpretation that curtails rights under other laws).  Superficially, abandoning the ICA may seem strange.  The ICA, however, is a law seeking to protect Congress’s institutional prerogatives, and neither congressional Republicans nor the D.C. Circuit have given those prerogatives serious weight.  The current Comptroller General has shown no appetite for suing to enforce the ICA even as he chronicles the Administration’s ICA violations, and he is about to be replaced by a Trump appointee. 

     Absent a clear indication of the Supreme Court’s willingness to respond to the Administration’s abuses of the law, the ICA is best set aside to simplify and expedite litigation.  This would focus attention on the Administration’s violations of statutes authorizing programs and appropriating funds for them.  The Court unanimously found such laws binding in Train v. City of New York in 1975. 

     Without this or some other measure improving the enforceability of appropriations acts and blocking partisan rescissions, no deal will be worth the paper on which it is written.  As many businesses can tell you, negotiating contracts with someone lacking the capacity to make binding commitments is a fool’s errand.

@DavidASuper.bsky.social @DavidASuper1

Understanding the Roots of Today’s Marital Inequality

Guest Blogger

Promoting Equality and Marriage

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Julie C. Suk

The “Transformation of American Law” that drives Serena Mayeri’s monumental book, Marital Privilege, is the shift from marriage as the supreme distributive mechanism across various areas of law towards marriage as a mere privilege within legal regimes that continue to distribute unequally, though less so.  This “transformation,” as Mayeri tells us in the book’s conclusion, was not of the seismic shift variety; it was a “preservation through transformation” of the oppressive inequalities produced by marital supremacy (p. 324). Through an impressive synthesis of Supreme Court decisions, legal scholarship, and the archives of litigants, lawyers, judges, and social movement actors from the 1960s to the present, Marital Privilege explains how and why laws benefiting marriage and the marital family still contribute causally to the material disadvantage of poor, Black, immigrant, and other disfavored people.

Selective Service and Illegal Aliens

Gerard N. Magliocca

I did not realize until today that male illegal aliens in the relevant age range are required by federal law to register for Selective Service (in other words, the draft). I don't know how many actually do register, but this requirement strikes me as rather interesting in the context of the birthright citizenship debate. I'll mull that over and elaborate down the road. 

The State of Impoundment Litigation Now

David Super

     The past few weeks have gone a long way toward framing the key questions that will decide whether the Trump Administration’s massive impoundment effort succeeds where President Nixon’s failed.  This post surveys what we have learned.

     At the outset, we must divide impoundments into three distinct sets.  First, the Administration has stopped payment on billions of dollars that were already obligated through numerous programs.  This has occurred primarily through the purported cancellation of grants and contracts.  Some of these have involved efforts the Administration dislikes, such as combating climate change; others appear to have been eliminated more or less randomly when they caught the eye of an ignorant twenty-something empowered by Elon Musk’s Department of Government Efficiency (DOGE). 

     The second and largest set of impoundments involve refusals to obligate and spend money Congress has appropriated for a wide range of programs.  Here again, sometimes the impoundments’ motivation is clear; often, it appears utterly capricious.  An Administration that targets the Enola Gay for promoting gender identities is capable of anything. 

     Finally, the smallest set of impoundments are those for which the Administration partially followed the procedures in the Impoundment Control Act to seek Congress’s permission.  After unlawfully impounding the funds for many months – in violation of the Act’s requirement that the President notify Congress at the time he determines that he does not want to spend moneys – he finally followed the Act’s procedures in June, sending up a rescission request that congressional Republicans largely rubber-stamped.

The Staying Power of Marriage Inequality

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Kimberly Mutcherson

Serena Mayeri’s meticulously researched book, Marital Privilege, traces the history of the shift from marriage supremacy to marital privilege in the U.S. through the many legal cases that shaped the marriage landscape from the 1960s into the 2000s . She shows the extent to which marriage is a legal transaction as much as (perhaps sometimes more than) an expression of love and devotion between two people. It shapes the lives of people who marry and equally shapes the lives of people who opt not to marry or who cannot marry. While acknowledging significant victories along the way, Mayeri traces how movements have relegated many of the most egregious elements of marriage supremacy to the dustbin of history (anti-miscegenation laws), but she also reveals how marriage still reigns as a most favored legal status for people who build lives together, especially if they have children. She reminds us of how marriage law encourages conformity in family structure, incentivizes preferred behaviors (childbearing only when married), and protects government coffers by privatizing the costs of care.

There is incredible richness in Mayeri’s book, far more than I can cover for purposes of this symposium, so I want to highlight a few themes that I found particularly powerful while reading the book and that strike me as especially pertinent for those committed to a more egalitarian future for family building in the United States. The first theme is the consistent throughline of family, reproduction, and parenting as sites of sustained racial oppression in the U.S. In a time when efforts to erase and distort history flow from the highest ranks of government, the enduring relationship between marriage law, white supremacy, racism, patriarchy, and wealth accumulation cannot be underplayed.