On June 26, 2019 the Supreme Court issued its much-anticipated decision in Kisor v. Wilkie. In it, the Court preserved the Auer doctrine, which requires judges to give deference to federal agencies in interpreting their regulations. The Court's elaborate reexamination of this doctrine -- named for Auer v. Robbins, a 1997 case in which Justice… Continue reading Kisor v. Wilkie — More Rumbles of Discord on the Supreme Court
The truth may be out there, but President Donald Trump is doing his level best to prevent its discovery. His latest effort is the assertion of executive privilege in the face of congressional inquiries into the addition of a citizenship question to the 2020 census. The move is not likely to go unchallenged—and, in this… Continue reading Executive Privilege and the Census
For the past two years, our government has been steadily eroding the rule of law, chilling speech, riding rough shod over state’s rights, engaging in retaliatory activity against activists, and violating the constitution. You may not have paid attention, because much of this activity has been centered in the field of immigration law. If you… Continue reading It’s Time to Pay Attention
More than a few commentators have noted the U.S. Supreme Court’s effort in Trump v. Hawaii, the travel ban case, to put to rest any lingering doubt about the validity of one of the nation’s most notorious judicial precedents, Korematsu v. United States. In that World War II-era case, the Court upheld the government-mandated internment… Continue reading Putting Korematsu to Rest, Not a Moment Too Soon
The Constitution is at the heart of our state and individual rights and is the foundation of our very nation. When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind. However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution. As… Continue reading Article Preview: Courts and Informal Constitutional Change in the States
By: Lawrence M. Friedman Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.” That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
By: Lawrence M. Friedman and David M. Siegel As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities.… Continue reading Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet