Department of Homeland Security
The Headless Department of Homeland Security
The lack of Senate-confirmed officers at DHS is a serious problem.
Separation of Powers
"A Better Way to Limit Congress' Subpoena Power"—My SCOTUSblog Symposium Article on Trump v. Mazars
The article critiques the majority decision, and outlines a better way to limit Congress' subpoena power.
Preliminary Thoughts on the Mazars and Vance Cases [Updated with Link to my SCOTUSblog Article on Mazars]
Vance strikes me as compelling and correct. Mazars creates a complex and unwieldy balancing test.
Judge Luttig on How the D.C. Circuit Bungled the Flynn Case
Former federal judge Michael Luttig thinks that the D.C. Circuit did not really understand what was at stake.
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.
Crime Victims Rights Amendment
The D.C. Circuit's Dubious Decision Ordering the Flynn Case Dismissed
A 2-1 ruling concludes that the district court cannot even hold a hearing on the subject.
Another Judge Rules That Ohio's COVID-19 Lockdown Is Illegal
The decision says the "unbridled and unfettered consolidation of authority in one unelected official" violates due process and the separation of powers.
Ohio Judge Deems the State's COVID-19 Lockdown 'Arbitrary, Unreasonable, and Oppressive'
The ruling says the state's top health official exceeded her statutory authority by ordering "nonessential" businesses to close.
A Pandemic Does Not Suspend the Rule of Law
Courts are beginning to recognize that public health powers, while broad, are not a blank check.
Wisconsin Supreme Court Says the State's COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers
A seemingly arcane dispute about administrative law has profound implications for the limits of public health authority.
The Limiting Principle for Congress' Power to Subpoena Presidential Records Isn't Hard to Find [Updated With Response to Josh Blackman]
Why the Supreme Court can rule in favor of Congress in the Trump financial records cases without thereby giving Congress any unlimited power.
Kansas Supreme Court Invalidates Legislature's Scheme for Supervising Governor's Executive Powers
The scheme, created by a concurrent resolution, is inconsistent with the Kansas Emergency Management Act. A legislative council's decision to overrule the Governor's church shutdown order has thus been invalidated, and the church shutdown is back in effect.
Huge Legislature-Governor Conflict in Kansas, Over Emergency Powers (Stemming from Religious Freedom Dispute)
A "drafting snafu" with the Legislature's concurring resolution, which endorsed the Governor's initial emergency order, is casting many things in doubt.
The Constitutionality of Territorial Courts
Adjudication Outside Article III (part two)
Chuck Schumer's Trumpian Attack on the Supreme Court Threatens the Judicial Independence That Democrats Claim To Defend
The Senate minority leader threatened two justices by name, and then he lied about it.
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.
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.
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.
Rudy Giuliani Wants the Supreme Court To Nullify Trump's 'Unconstitutional' Impeachment
The legal basis for such a ruling is hard to find.
The Bolton Subpoena
John Bolton may have critical evidence relevant to the House impeachment inquiry; why hasn't the House subpoenaed his testimony?
Kavanaugh Joins Gorsuch in Fight To Revive Nondelegation Doctrine
An important development in the legal wrangling over the separation of powers.
Presidential Power and the Wall
An amicus filing in the case challenging the Emergency Declaration's diversion of funds towards building the Wall
Is the CFPB Unconstitutional? We'll Soon Find Out. (Corrected)
The Supreme Court will consider a constitutional challenge to the composition of the Consumer Financial Protection Bureau.
Vox Symposium on The President's Refusal to Cooperate with the House Impeachment Inquiry
Thirteen legal scholars weigh in, including the VC's Keith Whittington and myself.
Trump's Tantrum Over Impeachment Just Got Official
Plus: FBI rebuked by FISA court, how Harris could come back, and more…
Shareholders Challenging FHFA's Constitutionality Want Supreme Court to Hear Their Case -- Even Though They Won
Fannie Mae and Freddie Mac shareholders convinced the Fifth Circuit to declare the Federal Housing Finance Agency's structure unconstitutional, but they're seeking Supreme Court review nonetheless.
John Yoo Warns That Impeachment Would Undermine Presidential Power. That's the Point.
While there may be sound political reasons to let voters decide Trump's fate, there are sound constitutional reasons to clarify the limits of his authority.
CFPB Decides that the CFPB Is Unconstitutional
In a newly filed brief with the Supreme Court, the Justice Department claims the Consumer Financial Protection Board's structure is unlawful.
Boston Judge Smacked Down for Overruling D.A. Who Tried To Drop 'Straight Pride' Protest Charges
Top justice rules that trying to push a criminal case forward over prosecutors’ objections is a violation of separation of powers.
Supreme Court Stays Lower Court Ruling Against Trump's Border Wall Construction
It's a win for Trump; but only on procedural grounds. The broader legal battle over the wall is far from over.
Kamala Harris and Donald Trump Unite to Defend the Imperial Presidency
The senator and the president she wants to unseat are determined to have their way, regardless of what the law says.
Federal Court Rules Against Trump in Border Wall Cases
The decisions expand on the same judge's earlier preliminary ruling holding that the president cannot reallocate military funds to build his border wall.
Senators Rand Paul and Ron Wyden Pitch New Limitations on Presidential Emergency Powers
The United States is currently operating under 32 different national emergencies. This proposal would require Congress approve those declarations within 72 hours, and again after 90 days.
May the House of Representatives Appeal Dismissal of Criminal Charges, When the Justice Department Doesn't Appeal?
From Prof. Jonathan Nash (Emory), an expert on Congressional standing.
Can the House of Representatives Continue a Prosecution That the Executive Branch Has Decided to Drop?
An interesting separation of powers question coming in the Female Genital Mutilation statute / Commerce Clause / Religious Freedom Restoration Act / Dawoodi Bohra litigation.
Federal Court Rules Trump Cannot Use Defense Funds to Build Border Wall
The first court decision on Trump's plan to reallocate federal funds to "build the wall" goes against the administration.
Wishing for a Constitutional Crisis
When politicians tell you we are in a constitutional crisis, you shouldn’t take it at face value.
If Congress Does Not Change Federal Gun Laws, Kamala Harris Promises, She Will Do It by Presidential Fiat
The California senator claims she could impose "near-universal background checks" and close the "boyfriend loophole" without new legislation.
Mike Lee: 'Every Conceivable Partisan Combination' Has 'Deviated From' Federalism
"This isn't a partisan issue," the Utah senator says. "This is a constitutional issue."
Trump's Phony Yet Legal Border Emergency
Congress seems to have authorized this end run around its spending power. Can it do that?
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.
The Invalidation of the PROMESA Appointments
A few thoughts on the First Circuit's separation of powers ruling on the Puerto Rico bankruptcy board
The Case that Started All the Fuss
Judge Tigar's (ND CA) asylum decision is an especially inappropriate target for Trump's ranting, given the weakness of the Administration's position on the legal issues raised by the case.
Who Is Lawfully the Attorney General Right Now?
Why first principles suggest that Matthew Whitaker's acting appointment is invalid, but precedent and practice might suggest the opposite.
