What role does the Declaration have in constitutional interpretation, if any? When it comes to understanding the meaning of the Constitution, many Americans don’t give the Declaration of Independence the first thought. But some argue that as the founding American document, everything hangs on it, and we must interpret the Constitution exclusively through the Declaration.…
Rep. Jeff Fortenberry's special statement on Pres. Obama's executive order benefiting millions of illegal immigrants displays inherent misunderstanding of the message sent by voters on November 4 and what's required to deal with President's abuse of power.
I can accept, as an original matter, the general proposition that the "Case or Controversy" language means at minimum that everyone can't sue everyone for everything. How modern standing law derives its particular intricacies from this basic proposition is a mystery to me. But that doesn't matter in this case, which seems fundamentally about an abstract injury common to everyone.
First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday’s recess appointments decision, NLRB v. Noel Canning. Second, my quick takeaway is that the case is a win for originalism. True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism. But…
I recently noticed another nullification happening in the great Centennial State, and I think it provides a valuable lesson for all of us – deal with things in our own house! The Colorado effort I’m talking about is an effort by the sheriffs against the state government of Colorado. Normally, we don’t focus on efforts…
The Sixth Circuit hears oral argument today in U.S. v. Miller, the Amish beard-cutting case. Jonathan Adler has this extended discussion: How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime. As he explains: According to the Justice Department, the defendants crimes are subject to federal prosecution under…
The answer, in my view, depends on whether the U.S. can be “at war” with a non-state actor such as the Sunni rebel force in Iraq. Here’s my analysis: (1) The President has executive power and commander-in-chief power, and thus can direct the military and conduct foreign relations, so long as he does not do…
Co-blogger Mike Rappaport, following Justice Thomas’ concurrence in Bond v. United States, argues that as a matter of original meaning the U.S. government’s treatymaking power is limited to “international matters.” I agree, to this extent: A treaty must cover subjects that are genuinely of concern to the parties to the treaty. There cannot be sham treaties designed only…
At Volokh Conspiracy, Ilya Somin has a thoughtful response to my defense of the President’s action: More on the legality of Obama’s decision to exchange five high-ranking Taliban terrorists without giving Congress advance notice. He concludes: Perhaps Congress would be unduly infringing on the president’s powers as commander-in-chief if it tried to make individual tactical decisions on a…
Chief Justice Roberts’ majority opinion in Bond v. United States has been sharply criticized (see here and here), so I’ll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type…