Jennifer Steinhauer (The Caucus Blog of the New York Times) reports: [Twenty-one Representatives], many freshmen who ran on platforms of strict constitutional adherence, are unhappy that the president used a so-called autopen to sign legislation extending the U.S.A. Patriot Act, and have written him a letter demanding that he re-sign the bill. The letter is […]
Archive | Constitutional Law
The Growing Conflict Over the Legality of the Libya Intervention
A bipartisan group of ten members of the House of Representatives recently filed a lawsuit challenging the constitutionality of the US military action in Libya. Meanwhile, Speaker of the House John Boehner has sent a letter to the president stating that the Obama Administration will be in violation of the 1973 War Powers Act unless […]
Debate on Libya and the War Powers Act
By David Kopel on June 9, 2011 12:56 am in Constitutional Law, Global Governance/World Government, International Human Rights Law, International Law, Russia
Featuring British NGO representative Leslie Vinjamuri (pro-intervention, sees no legal problem), American peace activist Robert Naiman (anti-intervention, considers the intervention unconstitutional), and me (pro-intervention, but opposed to Obama doing it in violation of the Constitution and the War Powers Act). On the RT (formerly, “Russia Today”) television program “Crosstalk.” 27 minutes.
The Tea Party Movement and Popular Constitutionalism
By Ilya Somin on May 31, 2011 10:30 am in Conservatism, Constitutional Law, Constitutional Theory, Democracy, Libertarianism, Political Ignorance
My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract: The rise of the Tea Party movement follows a period during which many scholars have focused […]
In Minnesota, We Shall Overcome
By Dale Carpenter on May 22, 2011 5:17 pm in Constitutional Law, Gay Marriage, Same-Sex Marriage, State Constitutional Law
Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage. The state senate approved the amendment on May 11. It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot. Sixty-eight Republicans (the […]
The individual mandate is neither “necessary” nor “proper”
By David Kopel on May 11, 2011 4:51 pm in Commerce Clause, Constitutional History, Constitutional Law, Individual Mandate, Necessary and Proper
That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument: The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. […]
Fourth Circuit Sideshow
The individual mandate challenge in the Fourth Circuit drew three judges appointed by Democrats, two by President Obama. Since James McReynolds retired from the Supreme Court in 1940, I believe that no judge appointed by a Democratic president has recognized any identifiable judicially-enforceable limits to Congress’s power to regulate interstate commerce [I wrote that in […]
Northwestern University Law Review Colloquy Symposium on the Constitutional Politics of the Tea Party Movement
By Ilya Somin on April 23, 2011 12:27 am in Constitutional Law, Constitutional Theory, Democracy, Political Ignorance
The Northwestern University Law Review Colloquy has posted a symposium on “The Constitutional Politics of the Tea Party Movement.” The symposium was organized by Richard Albert of Boston College, who arranged a panel on the subject at this year’s AALS conference and wrote an introduction available here. The symposium includes contributions by well-known constitutional law […]
Cert. Petition in Right to Carry Case
By David Kopel on April 22, 2011 4:19 pm in Constitutional Law, Guns, McDonald v. City of Chicago, Standing, Supreme Court
Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, […]
Interview with Cato’s Ilya Shapiro on the legal challenges to the new federal health control law
By David Kopel on April 20, 2011 6:18 pm in Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Taxing and Spending Clause
Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato’s litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in […]
The Libyan intervention is not wholly legal
That’s my argument in a new article for The Daily Caller. As I’ve previously explained, I strongly support the use of force against the Gaddafi tyranny. Indeed, I wish that President Obama were not so half-hearted in taking action to remove Gaddafi. However, the war against the Libyan dictator still needs to be voted on […]
National Review Symposium on the Constitutionality of the Libya Intervention
By Ilya Somin on March 24, 2011 5:16 pm in Constitutional Law, Executive Branch, Separation of Powers, War and Armed Conflict
National Review has posted a symposium on the constitutionality of the Libya intervention. The symposium includes a large number of legal scholars and commentators, mostly conservative ones, as one would expect from a conservative publication. Interestingly, most of the participants reject the view (advanced by John Yoo and some others in the George W. Bush […]
The One and Only Substantive Due Process Clause
By David Bernstein on March 23, 2011 7:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism, Rehabilitating Lochner
Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking. Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, […]
Obama Administration Claims that the Libya Intervention is Constitutional Because it is Not a “War”
By Ilya Somin on March 23, 2011 12:02 am in Constitutional Law, Constitutional Theory, War and Armed Conflict
Charlie Savage of the New York Times reports that the Obama Administration is arguing that the Constitution does not require congressional authorization for the Libya intervention because it is not a “war,” but merely some smaller scale of military action: “The president does not have power under the Constitution to unilaterally authorize a military attack […]
Jack Goldsmith on the Constitutionality of the Libya Intervention
By Ilya Somin on March 22, 2011 5:17 pm in Constitutional Law, Constitutional Theory, War and Armed Conflict
Harvard law professor Jack Goldsmith, a leading constitutional law and international law scholar, has an article in Slate defending the constitutionality of President Obama’s use of force against Libya without congressional authorization. I am a big fan of Goldsmith and his academic work. He’s one of the leading scholars in his field. In this case, […]