Department of Homeland Security
The Headless Department of Homeland Security
The lack of Senate-confirmed officers at DHS is a serious problem.
Executive Power
Chamber of Commerce and Other Employer Groups File Lawsuit Challenging Trump's Employment Visa Ban
The lawsuit raises a variety of important issues, including a nondelegation challenge. It could turn out to be a very significant case.
Michigan Gov. Gretchen Whitmer Wants President Donald Trump To Impose a Nationwide Face Mask Mandate
Whitmer's argument is short on facts and legal reasoning.
Trump Deploys Lawlessness Against Lawlessness
The president’s heavy-handed response to protests against police brutality belies his promise of "law and order."
Betraying Trump, Kavanaugh and Gorsuch Stay Loyal to the Law
Two centuries of precedents say the president is not immune from judicial process.
President Trump's Use of the Pardon Power
An analysis finds that Trump is both more stingy and more self-serving than his predecessors in how he has used the pardon power to date
Roberts, Gorsuch, and Kavanaugh Reject Trump's Assertion of 'Absolute Immunity' From State Criminal Subpoenas
The Supreme Court weighs the legality of subpoenaing Trump’s financial records.
BREAKING: Supreme Court Decides Trump Financial Records Cases and Fate of Eastern Oklahoma (Updated)
The Supreme Court rejected Donald Trump's claims of immunity, but reaffirmed limits on investigatory powers, and ruled in favor of Native American tribal claims against Oklahoma.
Supreme Court Rules Against Consumer Financial Protection Bureau, Says Agency's Format 'Clashes With Constitutional Structure'
SCOTUS rules 5–4 in Seila Law v. Consumer Financial Protection Bureau.
My New Atlantic Article on Trump's Coronavirus Immigration Bans
The article explains why these policies, which made made America more closed to immigration than at any previous time in history, are both harmful and a dangerous executive power grab.
Forbes Interview on How to Limit Presidential Power Over Immigration
In it I explain how to reform a federal law the Supreme Court has interpreted as giving the president nearly unlimited power to ban migrants from entering the United States.
California's COVID-19 Shutdown Was Driven by Science. Until It Suddenly Wasn't.
It's great that Gov. Gavin Newsom is finally looking at costs and benefits. But don't kid yourself. None of it has anything to do with "science."
Trump's Threat to Withhold Federal Funds from States that Expand Voting By Mail Highlights Growing Menace to Federalism and Separation of Powers
A president who can attach his own new conditions to federal grants to states could use that power to undermine state autonomy on many issues - especially now that federal spending has been massively expanded during the coronavirus crisis.
No, Jared Kushner Did Not Suggest That Trump Might Unilaterally Delay the Presidential Election
There is a difference between reporting facts that make the president uncomfortable and manufacturing facts to fit a preconceived view of him.
Is There Any Limit on the Congressional Subpoena Power?
There was a potentially pivotal exchange in today's Supreme Court oral argument over the House subpoenas seeking the President's financial records.
No, the Supreme Court's "Bridgegate" Decision Doesn't Vindicate Trump on Impeachment [Updated with Comment on Josh Blackman's Clarification of his Position]
An abuse of power that doesn't violate federal fraud statutes can still be an impeachable offense - and still violate other criminal law.
DoD vs. FCC
Why does it matter is a federal agency is independent of Presidential control? Ask the Department of Defense.
Justin Amash Becomes the First Libertarian Member of Congress
In an interview, the freshly-minted presidential candidate talks abortion, the "spoiler" charge, and Joe Biden's flip-flopping, while insisting that 2020 is a "winnable race."
The Executive Order on Meat Processing Doesn't Compel Companies With Sick Workers to Stay Open
Plus: Justin Amash seeking L.P. nomination, pandemic hasn't halted FDA war on vaping, and more
The Attorney General Defends Civil Liberties Against Overreaching COVID-19 Control Measures
While denying Donald Trump's dictatorial impulses, William Barr notes that public health emergencies do not give governments unlimited powers.
Trump Tweet-Threatens To Close the Borders (Which Would Just Destroy the Economy Even More)
Plus: New York legalizes Zoom weddings, federal labeling laws exacerbate grocery store shortages, and more...
Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?
The president contemplates a sweeping exercise of executive authority.
People, Not Politicians, Will Decide When the Coronavirus Shutdown Ends
It's not the politicians who have the power to reopen America, or at least the parts that are now closed. It's individuals, families, businesses, and religious congregations.
Trump Can Encourage States to Lift Their COVID-19 Lockdowns, but He Can't Decree That Outcome
The president has a history of asserting powers he does not actually have.
Trump Claims He Has 'Total' Authority Over When States End Social Distancing Rules. He's Wrong.
Plus: Americans plan to stay home for months, courts block more abortion bans, Amash "looking closely" at presidential run, and more...
Trump Has Secret Emergency Powers?
"Presidential emergency action documents” concocted under prior administrations purport to give him such authority, according to a New York Times op-ed.
Coronavirus Gives the Illiberal Right Fever Dreams of Power
Hungary's Viktor Orbán consolidates power, Harvard's Adrian Vermeule fantasizes about wielding it, and many of those who oppose authoritarian conservativism beg Donald Trump to close the country down.
New Jersey Allows, Then Blocks, Deliveries From Breweries and Distilleries
Takeout and delivery orders are the only thing keeping the state's 115 craft breweries afloat during the coronavirus outbreak.
Gorsuch Throws Shade at Trump Administration for Rewriting Federal Gun Laws Without Congressional Approval
“Why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”
The National Interest, C'est Moi
This inability to agree on the nature of the national interest is endemic not just to the new nationalism, but to all of politics.
If Bloomberg's Arrogance Worries You, His Weaselly Positions on Presidential Power Won't Reassure You
The presidential candidate reserves the right to wage unauthorized wars, kill Americans in foreign countries, prosecute journalists, and selectively flout the law.
The Looming Supreme Court Showdown Over Sanctuary Cities
The legal battle over immigration, federalism, and executive power heats up.
Would a Presidential Pardon for Roger Stone Be Unconstitutional?
The argument requires several controversial assumptions and leaps of logic.
On the Money: Presidential Portraiture and Power in D.C.
Kehinde Wiley's pre-presidential works criticized inequalities and hierarchies of power. His presidential portrait doesn't do the same.
Trump's Continuing Commentary on Criminal Cases Reflects His Disdain for the Rule of Law
The president remains frankly puzzled by the distinction between can and should.
A Nondelegation Challenge to Trump's Travel Bans [updated to include some additional material]
Other possible legal challenges to Trump's expanded travel ban may be precluded by the Supreme Court's ruling in Trump v. Hawaii. This one is not.
Even Without Trump's Tweets, the Attorney General's Intervention on Roger Stone's Behalf Would Have Looked Bad
If Barr is so concerned about the appearance of integrity, why did he insert himself into a high-profile case involving a presidential pal?
Michael Bloomberg and the Imperious Presidency
Until we start denuding the Oval Office, we will continue getting the royals we deserve.
Instead of Removing Trump From Power, Remove Power From the Presidency
After Watergate, Democrats rolled back executive power. Under Trump, they just want to be the ones who get to wield it.
Michael Bloomberg and the Imperious Presidency
Until we start denuding the Oval Office, we will continue getting the royals we deserve.
Good and Bad Reasons for Acquitting Trump
Republicans should think twice before endorsing the dangerous myth that impeachment requires a criminal violation.
Trump's Expanded Travel Ban Compounds the Wrongs of Previous Versions
The courts may not strike it down. But it remains both illegal and deeply unjust.
The Ultimate Impact of Trump's Impeachment Remains to be Seen
While Trump will almost certainly be acquitted within the next few days, impeachment might still damage him politically. And the long-term impact of this process will likely take a long time to unfold.
The Real Problem With Alan Dershowitz's Position on Quid Pro Quos and Impeachment
Trump's lawyer did not say a president "can do anything" to get re-elected, but he did say that goal cannot count as a corrupt motive.
In Trump Subpoena Fight, the Supreme Court Weighs Executive vs. Congressional Power
A major constitutional clash is unfolding at SCOTUS.
Republican Senators Say the Truth Is Irrelevant in Evaluating the Gravity of Trump's Misconduct
Republicans are setting a dangerous precedent they may come to regret the next time a Democrat occupies the White House.
Trump's Failed Impeachment Is Still Worth It
It at least sends a message against future abuses of executive power.
