Executive Power
Why Trump's Emergency Declaration is Illegal
The strongest legal argument against Trump's attempt to use emergency powers to build the wall is that declaring an emergency does not authorize him to spend money and condemn property for that purpose. But he also lacks grounds to declare an emergency in the first place.
Trump's Phony Yet Legal Border Emergency
Congress seems to have authorized this end run around its spending power. Can it do that?
This SCOTUS Precedent Is Bad News for Trump's Emergency Border Wall Declaration
"Extraordinary conditions do not create or enlarge constitutional power."
Once a Critic of Executive Power, Trump Is Now Taking Us Closer to Rule by Decree
Bargaining over policy is supposed to be frustrating. That's a feature, not a bug, of limited government.
Why No Congress Day, Judiciary Day, or Separation of Powers Day?
My 2015 critique of Presidents Day is, if anything, even more relevant four years later.
Vox Symposium on the Legality of Trump's Plan to Use Emergency Powers to Build the Wall
A variety of legal experts weigh in on the subject, including me. Most conclude Trump may have the authority to declare an emergency, but not to spend funds and seize property for the wall.
Trump's Emergency Action on the Border Wall Stinks All the Way Down
There is no good justification for what the president is doing. Republicans and conservatives need to call him out on it.
How to Go From Government Shutdown to National Emergency in Just Two Weeks: Reason Roundup
Plus: Congress forgets to fund the First Step Act, The New York Times chastises smug politicians over Amazon, and what if the U.S. were 100 city-states?
The Perils of Trying to Use Emergency Powers to Build Trump's Wall
A summary of the reasons why Trump lacks the power to use emergency powers to build his border wall, and why it would cause great harm and set a dangerous precedent if he did. Other than that, it's a great idea!
The Ongoing Gratuitous Cruelty of Trump's Travel Ban
The way the travel ban policy has been implemented both before and after the Supreme Court's decision further underscores the magnitude of the Justices' mistake.
My USA Today Op Ed on Using Emergency Powers to Build Trump's Wall
The op ed explains why this option is not legal - and why it would set a dangerous precedent if the president succeeded in doing it.
Some Conservatives Recognize the Risks of Using Emergency Powers to Build Trump's Wall
They correctly warn it would set a dangerous precedent that could be abused by future presidents, including liberal Democrats.
Trump's National Emergency Is an American Obscenity
Republicans embrace presidential authoritarianism, continuing a foul bipartisan tradition of legislating immigration through the executive branch.
My Op ed on Trump, Emergency Powers, and the Wall
The op ed was published yesterday in the New York Daily News, but may be even more relevant today.
Surprise! Looks Like Elizabeth Warren Is Running for President!
She's the highest-profile candidate to jump in.
Trump's Bump Stock Ban Shows Once Again He Is Happy to Ignore Inconvenient Laws
The administration usurps Congress by redefining machine guns.
Trump's 60 Minutes Interview Further Demystifies the Presidency
From the moment he started his improbable run for higher office, Donald Trump has stripped bare all pretensions that politics is about more than "winning."
Why the Executive Branch Shouldn't Legislate
Progressives appreciate the separation of powers-up to a point.
Gorsuch and Sotomayor Fault Congress for Giving 'a Blank Check to the Attorney General'
SCOTUS weighs congressional power, criminal law, and the non-delegation doctrine in Gundy v. U.S.
Kavanaugh's Testimony on Executive Power [Updated with Material from the Afternoon Session]
No great surprises so far. But some notable points nonetheless.
Washington Post Symposium on Brett Kavanaugh's Jurisprudence
The Post has a symposium in which a a variety of legal commentators (myself included) discuss what they consider to be Judge Kavanaugh's most important opinions.
Kavanaugh on the Nixon Tapes Case
In 1999, Judge Kavanaugh suggested that the Supreme Court case that forced Nixon to turn over the Watergate tapes may have been wrongly decided. But it's not entirely clear what he now thinks about the issue.
Kavanaugh and Executive Power - the Good, the Bad, and the Overblown
The debate over Judge Kavanaugh's views on executive power actually encompasses four separate issues. On some of them his views bode well for the future, on others not so much.
SCOTUS Nominee Brett Kavanaugh Sees Perils of Aggressive Administrative State
Like Neil Gorsuch, the D.C. Circuit judge has criticized Chevron deference for encouraging executive arrogance.
When the Supreme Court Blessed the Imperial Presidency
The story of how classical liberal Justice George Sutherland enabled executive overreach abroad.
My USA Today Op Ed on the Travel Ban Decision
The op ed outlines some of the grave flaws in today's Supreme Court ruling.
Initial Thoughts on the Supreme Court's Terrible Travel Ban Decision
Some preliminary comments on a badly flawed ruling.
A Little-Noticed Legal Ruling That Is Bad News for Trump
Can the president of the United States be sued for damages in a civil proceeding?
You Might Have a 'Uniquely Compelling' Reason to Find Out Whether Your Government Has Placed You on a Kill List
Bilal Abdul Kareem has been nearly droned in Syria five times already. A federal judge agrees his lawsuit over the matter can proceed.
How the Masterpiece Cakeshop Decision Strengthens the Case Against Trump's Travel Ban
The Supreme Court's ruling was based on state officials' apparent hostility to the bakers' religious beliefs. There is far stronger evidence of such hostility in the travel ban case.
Evidence Indicates there is no "Extensive" Analysis Backing Trump's Travel Ban
Despite the administration's claims to the contrary, it appears that no such thing exists. Its absence strengthens the constitutional case against the travel ban.
The Case for Abolishing the Requirement that the President Must be a "Natural Born" Citizen
I am reposting my 2016 post on this subject, on the occasion of Kevin Walsh's guest-blogging stint addressing the same issue.
End of Iran Deal Underscores a Weakness of Obama's 'Pen and Phone' Presidency
If your "signature achievements" are done by executive power alone, they might as well be written in pencil.
Trump, Reagan, and Why Republicans Flip-Flopped on Free Trade
The Donald is more like The Gipper on trade policy than you think. And not in a good way.
Rethinking the Unitary Executive
The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.
Thoughts on the Travel Ban Oral Argument
The justices' comments in the oral argument suggest this will be a close case that could easily go either way. The outcome could well turn on the views of that perennial swing voter, Justice Anthony Kennedy.
A Roundup of My Volokh Conspiracy Posts on the Travel Ban
On the eve of the of Supreme Court oral argument in the travel ban case, here are links to some of my more notable VC posts on the subject.
Trump Wages War Wherever and Whenever He Wants
The unauthorized attack on Syria shows Congress won't enforce limits on the president's military powers.
Originalism, Living Constitutionalism, and the Power to Initiate War
You don't have to be an originalist to conclude that the Constitution requires congressional authorization for war.
The Constitution and Trump's Next Strike Against Syria
A small-scale strike might be constitutional even without congressional support. But it is also likely to be useless, much like last year's missile strike turned out to be. Large-scale military action of the sort that could make a real difference, requires advance congressional authorization.
Constitutional Law Scholars' Amicus Brief in the Travel Ban 3.0 Case Explains Why the Bill of Rights Restricts Federal Power over Immigration
The brief, which I coauthored on behalf of myself and six other legal scholars explains why the Bill of Rights constrains federal power over immigration no less than other types of federal power.
If Congress Reclaims Its War Powers, There Would Be Little Reason to Worry About John Bolton
Many people fear that John Bolton and Donald Trump might start an unnecessary war. But such fears would be unnecessary if Congress were to reclaims it power to initiate war.
Appeals Court Rules That Trump's Travel Ban 3.0 Is Unconstitutional
The US Court of Appeals for the Fourth Circuit concluded that the ban violates the First Amendment because it is intended to discriminate against Muslims.
Put 'Humanity First,' Demands 2020 Democratic Presidential Candidate Andrew Yang
No robots need apply.
Why Trump's Words Matter
Trump's awful rhetoric is a menace to liberty - even when it does not lead to any immediate action.
