On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters […]
Archive | Congress
The Trillion Dollar Coin and the Problem of Circulation
By Eugene Kontorovich on January 9, 2013 5:51 pm in Congress, Constitutional Law, Finance, Originalism, Separation of Powers, Uncategorized
“Everyone loves money. That is why they call it MONEY.” – David Mamet. The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly […]
Filibuster Suit Dismissed
By Jonathan H. Adler on December 22, 2012 1:23 pm in Administrative Law, Congress, Separation of Powers, Standing
Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Is President Obama’s assertion of executive privilege valid?
As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support […]
When Is an Earmark not an Earmark?
When it’s pushed by the Republican leadership, is located in a politically important state, and is carefully written to avoid the official definition of an “earmark.” (HT: Instapundit)
A Futile Suit Against the Filibuster
Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where […]
President Obama versus the Constitution
By David Kopel on April 2, 2012 11:54 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, Federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, Obama, Presidency, Public Opinion, Supreme Court, Uncategorized, War on Terror
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was […]
The STOCK Act and Whistleblowing — Round II
On Sunday, I noted John Berlau and David Bier’s concerns that the STOCK Act sweeps to broadly and could inhibit whistleblowing, and Professor Bainbridge’s thorough response. Now Berlau and Bier’s colleague, Ryan Radia, has joined the fray, arguing in Berlau and Bier have valid concerns. In his sur-reply, Professor Bainbridge explains why he’s still […]
The STOCK Act and Whistleblowing
Congress appears poised to enact the Stop Trading on Congressional Knowledge (STOCK) Act to expressly extend the prohibition on insider trading to members of Congress and their staff. Some argued that insider trading on Capitol Hill was already illegal, but the STOCK Act would make this explicit. Both the House and Senate have passed versions of the […]
The original meaning of the 14th Amendment regarding interracial marriage
By David Kopel on December 5, 2011 5:38 pm in Anti-Semitism, Congress, Constitutional History, Constitutional Law, Federalism, First Amendment, Fourteenth Amendment, History, Racism, Supreme Court
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument […]
Stopping the Stop Online Piracy Act
In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has […]
Congressional hearing on interstate handgun carry reciprocity
By David Kopel on September 14, 2011 10:21 pm in Congress, Federalism, Fourteenth Amendment, Guns, McDonald v. City of Chicago, Right to carry
On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members […]
Does requiring the people of a state to vote on tax increases violate the Republican Form of Government guarantee?
By David Kopel on September 8, 2011 8:32 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Democracy, Election Law, Supreme Court
That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee […]
Commemorating an End to Commemorative Resolutions
Thus far Republicans have kept their pledge to end the practice of passing commemorative legislation in the U.S. House of Representatives, the Washington Post reports. So this has been a year without a Congressional remembrance of the fabled battle of Marathon or Multiple Sclerosis Awareness Week. Unlike last year, the House is not marking Independence […]