From his Free Press article; Ferguson is a Senior Fellow at the Hoover Institution, a former Harvard history professor, and a noted author both on historical matters and modern ones:
Since the news of the joint U.S.-Israeli strikes on Iran this morning, I have been thinking a lot about a song in the 2004 movie Team America:World Police. The movie was co-written by the creators of South Park and follows a group of heroic American puppets waging kinetic war on Islamic terrorists, the North Korean dictator Kim Jong Il, and liberal Hollywood, leaving cataclysmic collateral damage (the Eiffel Tower, Cairo, the Sphinx) in their wake. But the real highlight is a song called "America, Fuck Yeah." Here's how it goes:
America, fuck yeah
Comin' again to save the motherfuckin' day, yeah
America, fuck yeah
Freedom is the only way, yeah
Terrorists, your game is through
'Cause now you have to answer to …
America, fuck yeah
So lick my butt and suck on my balls
America, fuck yeah
What you gonna do when we come for you now?
It's the dream that we all share
It's the hope for tomorrow
Fuck yeah
Team America was an ambivalent movie at the time. That was what made it funny. It simultaneously mocked the liberal opponents of an aggressive foreign policy and the neoconservatives who advocated policies such as regime change in Iraq. The South Park team understood before many commentators that the United States has a track record of coming to save the day and leaving a trail of devastation.
For the habitual critics of U.S. foreign policy in general and Donald Trump's in particular, the analogy between today's air raids against Iran and the invasion of Iraq nearly 23 years ago is too obvious to be resisted….
An excerpt from Prof. Goldsmith's post at Executive Functions:
We're already seeing a debate about the legality of President Trump's use of force in Iran. I've grown cynical about these debates. Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation. But the truth is that there are only political constraints.
As I've been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president's deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.
The Office of Legal Counsel opinions on the presidential use of force are famously promiscuously permissive. Some will now invoke the single acknowledged OLC limitation on unilateral uses of force to criticize the Iran attack. As the opinion justifying the attack on ISIS in 2014 explained: If the "'anticipated nature, scope, and duration' of the planned military operations, analyzed in light of the applicable historical precedent" amount to "war," the president must secure prior congressional approval.
President Trump in his statement about the attack said: "The lives of courageous American heroes may be lost, and we may have casualties," and that "that often happens in war." Does that implicate the OLC limitation and require him to seek congressional approval? It would be very easy for OLC to conclude not.
Frame grab from an eight minute statement made by United States President Donald J Trump that was released via his X account concerning the United States attack on Iran, on Saturday, February 28, 2026. (@realDonaldTrump via CNP/Newscom)
Last night, the US and Israel initiated a large-scale military attack on Iran. This action is blatantly unconstitutional. Its wisdom and morality are are more debatable.
Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is very obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. And Trump didn't get any, and indeed did not even try to do so.
Don't take my word for the proposition that it's a war. Take Trump's! He himself has called it a war, and proclaimed that the objective is regime change.
The closest historical analogue is Barack Obama's 2011 air campaign against Libya, which was also attempt at regime change carried out with air strikes. For those keeping score, I condemned Obama's action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Iran is a larger and more powerful nation than Libya, and thus this is likely to be an even bigger conflict. And, as I have said before, Obama's illegal actions don't justify Trump's (and vice versa).
The wisdom and morality of this action are a closer call. I am no reflexive opponent of military intervention, and I think regime change is sometimes justified. I have long differed on these issues with more dovish/isolationist libertarians.
The Iranian regime is a brutally oppressive dictatorship that recently slaughtered tens of thousands protesters, has a long history of promoting terrorism, and constantly seeks to develop nuclear weapons. For these and other reasons, I would welcome regime change there. Even if the new government is far from ideal, it is likely to less awful than regime of the ayatollahs. But I am skeptical that regime change can be achieved with air and missile strikes alone. And, at this point, it does not not seem like the US and Israel have either the will or the capability of launching a major ground invasion. If the latter is attempted, it might turn out to be too costly to be worth it.
Perhaps airpower could achieve regime changes if coupled with a strong opposition movement within Iran. But Trump waited until after the regime crushed the protests that arose a few weeks ago, in the process slaughtering tens of thousands. It may be difficult or impossible for a strong opposition movement to emerge again, without a ground attack.
War is inherently dynamic, and it would be foolish to make definitive predictions. I have been largely out of the field of security studies for many years now, and thus no longer have much relevant up-to-date expertise. Thus, at this point, I can only say I am skeptical this intervention will achieve the regime change Trump seeks, or any other beneficial result great enough to outweigh the damage done to our constitutional system.
That latter is not just a technical legal issue. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military action have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents.
I will note one clear beneficial consequence of this action that has largely been ignored by the media so far: Iran is a major supplier of weapons to Russia for its war of aggression against Ukraine. As long as Iran is fighting the US and Israel, it is unlikely to continue extensive weapons deliveries to Russia, since it will need those arms for its own use.
But, on balance, it would have been more effective to help Ukraine by simply giving them weapons directly, which Trump has largely stopped doing. And, unlike starting a war without congressional authorization, giving arms to Ukraine doesn't violate the Constitution, and does not expose US forces to any significant risk.
In sum, this is a blatantly unconstitutional war. Time will tell whether it achieves any beneficial results that outweigh the costs - including the damage to our constitutional system of separation of powers.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! This week, S.D. Iowa rejected a mayor and police chief's invocations of qualified immunity (and the Nuremberg defense) and handed a big win on the merits to our client, who was arrested, jailed, and criminally prosecuted for criticizing them. Good stuff. Click here to learn more.
New on the Short Circuit podcast: To fuel the nightmares of our lawyer listeners, a story of a settlement that was until it wasn't, powered by litigation financing.
After news reports indicate that ICE planned to request immigrants' addresses from the IRS to aid immigration enforcement, immigrant-rights groups sue to enjoin the information sharing. D.C. Circuit: But the statute that prohibits release of "taxpayer return information" exempts addresses. Injunction denied. Read More
Judge McCafferty refuses to stay her unconstitutional injunction, and it appears the state AG's office is still failing to raise its strongest constitutional defense.
Last month, a federal judge in New Hampshire issued an injunction purporting to prevent the state from ending its vehicle emission inspection program. The state legislature had repealed the program, effective January 31. No matter, the Judge McCafferty concluded, the state is required to have such a program under the federal Clean Air Act, so the state was enjoined from getting rid of the program.
As I explained in this post, the judge's injunction is unconstitutional, as it forces the state to implement a regulatory program. The judge claimed this outcome was required by the Clean Air Act, but it is well-established, black-letter law that federal law may not require a state to administer or implement a regulatory program. Any such requirement is commandeering, and is unconstitutional under a line of Supreme Court decisions going back over thirty years, including New York v. U.S., Printz v. U.S., and Murphy v. NCAA.
[Indeed, the history goes back farther, as the U.S. Environmental Protection Agency had taken the position in the 1970s that states could be required to implement vehicle emission inspection programs under the Clean Air Act, only for the Solicitor General to concede the point to the Supreme Court, prompting the dismissal of EPA v. Brown. I have a paper retelling this saga, unearthing some of the anti-commandeering principle's forgotten history, that I hope to post on SSRN later this year.]
Given the history, and well-established nature of the anti-commandeering principle, I was surprised to read the judge's order. I was even more surprised to discover that the state AG's office had not raised the anti-commandeering principle in the state's defense. Now I am more surprised still, as this past Wednesday the judge denied the state's motion for a stay, again without any mention of commandeering concerns (and, based on her opinion, it appears the state again failed to raise the argument).
The problem, again, is that Judge McCafferty seems not to understand the nature of our federal system, or the particular requirements of the Clean Air Act. "The Clean Air Act requires New Hampshire's SIP to contain an I/M program," she writes in her latest order. That is true, as far as it goes, in that a state that fails to adopt an adequate SIP [State Implementation Plan], or fails to maintain a SIP approved by the EPA (as is the case here), is out of compliance with the Act. But this does not mean that federal law requires New Hampshire or any other state to have such a program. Rather, should a state fail to submit, maintain, or enforce a compliant SIP, federal aw provides that the state can be subject to various sanctions, such as the loss of some federal funding and the direct imposition of a FIP [Federal Implementation Plan]. What the Clean Air Act does not do is provide a basis for forcing a state to adopt any particular regulatory measure--a point which the federal government has accepted for the past fifty years. [For more on what is and is not commandeering or otherwise coercive under the Clean Air Act, see this article I wrote a few years back with Nate Stewart.]
The Clean Air Act operates this way, in part, so as not to commandeer state governments. Under New York v. United States, it is perfectly okay for the federal government to offer inducements for state cooperation, as well as to threaten adverse consequences for state intransigence. But what federal law cannot do is simply direct states to play the federal government's tune--and yet that is precisely what Judge McCafferty has done. And if there were any question on this point, recall that in Murphy v. NCAA the Supreme Court made abundantly clear that the anti-commandeering principle prevents the federal government from ordering a state not to repeal a state law.
The underlying legal question in this litigation is not a particularly close one. Yet for some reason the state AG's office did not press the point. This has not escaped the notice of other New Hampshire officials, so perhaps things will change on appeal. Until then, the unconstitutional commandeering of New Hampshire will apparently continue.
The draft of "Birthright Citizenship Re-Examined" is available on SSRN. Here is the abstract:
In 2020, I argued in Originalism and Birthright Citizenship that the original meaning of the Fourteenth Amendment's Citizenship Clause guaranteed U.S. citizenship to almost everyone born in the United States apart from the children of foreign diplomats and (at the time it was adopted) tribal Native Americans. President Trump's 2025 executive order purporting to exclude from birthright citizenship the U.S.-born children of temporary visitors and of persons not lawfully present in the United States has brought the issue to the forefront and inspired prominent originalist counterarguments. In particular, two leading originalist-oriented scholars—Kurt Lash and Ilan Wurman—separately argue that the original meaning's citizenship guarantee is narrower than I contended.
This Article responds to these new originalist assessments of the Citizenship Clause. Notably, although these scholars both reject the broadest reading of the Citizenship Clause, they disagree between themselves as to the clause's correct reading and scope. Professor Lash's account would exclude U.S.-born children of parents unlawfully present in the United States (thus defending the executive order only in part). Professor Wurman argues that the clause may guarantee citizenship to U.S.-born children of alien parents only if the parents are lawful permanent residents; this approach would find the President's executive order consistent with the clause's original meaning.
Evaluating each of these contentions in turn, this Article concludes that neither of them is persuasive. Rather, this Article reaffirms the conclusion that the Citizenship Clause's broad language ("All persons born… in the United States and subject to the jurisdiction thereof, are citizens of the United States….") encompasses all U.S.-born persons over whom the United States exercised sovereign authority at birth.
This article, like other recent work, adds to the ongoing debate about the precise scope of the Fourteenth Amendment's citizenship clause.
I continue to believe the arguments for the conventional account are more compelling than the revisionist accounts that would undermine the scope of birthright citizenship, particularly if one believes the question should be answered by the original public meaning of the clause, as opposed to a living constitutionalist theory. I also believe the question that is most up for debate is not the operation of the clause itself, but the extent to which Congress may adjust the contours of birthright citizenship by using its Section Five power to define or redefine what it means to be subject to the jurisdiction of the United States. Yet because Congress has made no effort to enact such legislation, that is not a question that bears on the proper resolution of Barbara v. Trump, the case the Supreme Court will consider this spring. It is rather a question for another day.
On Wednesday, I participated in the Rappaport Forum at Harvard Law School on "The Docket that Shall Not Be Named" with Professor Kate Shaw. The discussion was moderated by Professor Richard Re.
As regular readers would expect, I sought to put discussion of the Supreme Court's "shadow docket" into perspective and explain why I believe it is premature to draw conclusions about what the pattern of recent decisions regarding requests for interim relief says about the Court, the Court's relationship to the executive branch, or even the Court's relationship with the second Trump Administration.
I was supposed to be participating in person. Alas, the weather and the airlines did not accommodate. So while I had to participate Oz-style, as a disembodied head on the wall, I believe we had a worthwhile discussion. Video below.
[1.] Some states and municipalities ban public nudity generally, but some, like Washington, ban only nudity that is "lascivious," which is to say involving some sexual motivation (to oversimplify somewhat).
Does the First Amendment permit such bans when applied to expressive nudity? You can read the badly fractured decision of the Court in Barnes v. Glen Threatre, Inc. (1991) for yourselves and figure out what it means as a precedent. Five Justices voted to uphold a total ban on public nudity, even as to places where only consenting adults are present (such as strip clubs). But Justice Souter, whose vote was necessary to that result, stressed that nude dancing could be banned to prevent "secondary effects" such as "prostitution, sexual assault, and other criminal activity." It's not clear then how that holding would apply to cases where the nudity is not sexual and is unlikely to yield such effects.
[2.] Nudity and recalls of elected officials, together! Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct.
It's not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it's also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official's actions fit within the category of "high crimes and misdemeanors." Different states have different rules on the subject (see this 2021 post).
[3.] With that in mind, here are the facts from In the Matter of Recall of Lauser, decided yesterday by the Washington Supreme Court (majority opinion by Justice Charles Johnson):
Christina Winterbauer was a civilian employee of the St. Louis Metropolitan Police Division, Department of Public Safety where she worked as a dispatcher. During the 2020 Black Lives Matter protests, Winterbauer made a private Facebook post commentating on the situation in St. Louis. The post read:
And so it begins! Got a call yesterday on my day off, was told when I go back to work Tuesday, we will be on Mandatory 12 hours shifts, All because a bunch of Animals don't know when enough is enough!! This is my 3rd time working through Protesting & Riots since Ferguson 6 years ago!! I'm tired of my life being turned upside down, my work schedule changing (not by my choice), plans I had made changing, because these Mofo's are out of control! I suffer from anxiety & it has been really bad since all this protesting started here, worrying about our Officer's & my Co-Worker's getting to & from work safety! I'm afraid to drive to work due to not knowing if I'm going to run into a protest or being shot at because I'm white, yes they are targeting us white people because of the color of our skin! With that being said, to all of you supporters of this Crime, Looting & Destruction going on in our City & others, I hope you're happy with it all & screw you as well, now I'm angry because once again my life is now effected from this shit! This is how I feel about all of it so if you don't like it, too bad, press the unfriend button, because I promise you I will not lose sleep over it!!
I ask you to pray for all of us First Responders through this, that we all make it to work safely & back home to our families safely! Pray for this madness to end, watch your backs, be aware or your surroundings, because this is some scary shit going on out on the streets!
God Bless us all!!!
The post was subsequently shared with local media by an anonymous third party. Winterbauer alleges that there was no internal backlash to her post, and that it did not disrupt the department. In response to the post, the Department terminated Winterbauer.
Winterbauer sued, and the court allowed her claim to go forward:
Professor Francis Beckwith (Baylor) and I both serve on the President's Religious Liberty Comission. We felt compelled, as a Catholic and a Jew, to write an interfaith op-ed about the rising tide of antisemitism, that is dressed up in the garb of traditional faiths. The Free Press, one of my favorite publications (you should subscribe), published our piece titled
"Trump's Religious Liberty Commission Was Hijacked by an Antisemite."
Here is a key component:
[Carrie Prejean] Boller was way out of her depth and should not be taken seriously now that she has been dismissed. Unfortunately her conduct is indicative of a growing trend among many young Catholics. These young people seem to have become disaffected by modern changes in church liturgy and are drawn to many pre-Vatican II practices. This turn to liturgical traditionalism may have also reinvigorated the sort of antisemitism once embraced by figures like Father Charles Coughlin, a notorious Jew-hater and popular radio personality between the 1920s and 1940s. A Catholic priest told one of us that he was horrified during Good Friday prayers last year when several college-aged young men at the service refused to kneel during the congregation's prayers for the Jewish people.
Boller and those who think like her are out of step with the teachings of the Catholic Church. In Nostra aetate, the 1965 Vatican II declaration about Catholicism's relationship to non-Christian religions, the Church affirmed that "God holds the Jews most dear for the sake of their Fathers; he does not repent of the gifts he makes or of the calls he issues."
This important document issued in the wake of the Holocaust "decries hatred, persecutions, [and] displays of antisemitism directed against Jews at any time and by anyone." The Vatican II Council also rejected the teaching that Jews are collectively guilty of the killing of Jesus. Boller apparently didn't get the memo. At the hearing, she read a biblical passage from 1 Thessalonians 2:14-15 without the proper theological context: "The Jews who killed both the Lord Jesus and their own prophets. . . " On a recent podcast, she repeated the claim that "Jews killed Jesus." Boller purports to speak as a devout Catholic, yet she cannot even be troubled to accurately state the Church's teachings on Jews.
When, at the hearing, Boller said "I am a Catholic, and Catholics don't embrace Zionism," she is fundamentally wrong that Catholicism is inconsistent with Zionism. In 1993, the Holy See established full diplomatic relations with Israel, affirming the legitimacy of the Jewish state's existence, and thus rejecting anti-Zionism. During his 2009 visit to the Holy Land, Pope Benedict XVI, in affirming his support for a two-state solution, stated unequivocally, "Let it be universally recognized that the State of Israel has the right to exist, and to enjoy peace and security within internationally agreed borders."
We conclude:
People of all faiths need to stand up now to prevent their doctrines from being hijacked, once again, by antisemitism. We must never forget what happens if faith is corrupted by the world's oldest hatred.
The oldest form of hatred is on the rise. It must be stopped.
Today, I took part in a National Constitution Center podcast on the Supreme Court's recent tariff decision. The other participants were Zach Shemtob (SCOTUSblog) and Julie SIlverbrook (NCC). In addition to considering the big-picture implications of the tariff ruling, we also discussed all seven of the majority, concurring, and dissenting opinions! The audio and a more detailed description of the podcast are available here. I have also embedded it below:
The NCC site linked above also contains a list of links to various articles and court decisions relevant to our discussion. I repost that list here:
On March 27, 2025, the President signed Executive Order 14,251, invoking his authority under 5 U.S.C. § 7103(b)(1) to exclude various federal agencies and subdivisions from collective bargaining requirements based on national security considerations. The district court preliminarily enjoined the Executive Order after concluding that the President issued it to retaliate against federal employee unions, in violation of the First Amendment. We stayed the district court's injunction pending appeal. Consistent with the reasoning in our prior stay order, we now vacate the preliminary injunction….
[T]he Federal Service Labor-Management Relations Statute (FSLMRS) … "expressly protects the rights of federal employees 'to form, join, or assist any labor organization, or to refrain from any such activity,' and imposes on federal agencies and labor organizations a duty to bargain collectively in good faith." The FSLMRS exempts several federal agencies from coverage, including the FBI, the Government Accountability Office, and the CIA…. [And the statute adds that]
The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
Since the FSLMRS was enacted in 1978, every President other than President Biden has signed executive orders that exclude designated agency subdivisions from the FSLMRS under § 7103(b)(1).
On March 27, 2025, President Trump signed Executive Order 14,251. Invoking § 7103(b)(1), the President determined that certain agencies "have as a primary function intelligence, counterintelligence, investigative, or national security work," and that the FSLMRS "cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations."
Under EO 14,251, the agencies designated for exclusion include, inter alia, the Departments of State, Justice, and Veterans Affairs, the EPA, nearly all of the Departments of Energy, Defense, and Treasury, and various subdivisions of the Departments of Agriculture, Homeland Security, and Health and Human Services. The Executive Order exempted from exclusion "local employing offices of any agency police officers, security guards, or firefighters, provided that this exclusion does not apply to the Bureau of Prisons." It appears that EO 14,251 is the largest single effort to date to exclude agencies and subdivisions from collective bargaining on national security grounds.
Upon issuing the Executive Order, the White House posted a "Fact Sheet" to the White House website…. It described how the various excluded agencies were involved in national security functions relating to national defense, border security, foreign relations, energy security, cybersecurity, and so on. The Fact Sheet further explained that collective bargaining agreements and "hostile Federal unions" were impeding national security, including by hamstringing agencies in their ability to address poor performance and employee misconduct.
I did a Society for the Rule of Law podcast about the Supreme Court's ruling in our tariff case. Gregg Nunziata, Executive Director of the Society, interviewed me. We covered all major aspects of the decision, its implications for the future, and also potential litigation over Trump's new Section 122 tariffs. The video is embedded below:
I have also written several articles and blog posts about these issues, in recent days:
On paper, the program seems unobjectionable. Students are asked to wear clothes from their ancestral homeland. Students can also prepare posters with pictures and other symbols from that nation. And parents can bring in food from their local cuisines. Students then group together by region: Europe, Asia, the Middle East, Africa, and South America. They parade down the hallway, which was festooned with flags from around the globe. At some level, the day was enjoyable. I saw kids smiling as they celebrated the culture that mattered most to them. Parents also cheered when their home country was represented. What could be wrong?
Lots can be wrong.
From the conclusion:
Multicultural Day is a gateway drug to DEI. It acculturates students at the earliest age to focus on differences between races and nationalities rather than on what unites us. Efforts to allow students to represent their own cultures necessarily separate them on that very basis. Shortly after Multicultural Day ended, African American History Month began. Unsurprisingly, there was no representation of Justice Clarence Thomas, one of the most influential black people in American history.
