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The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman May 2017

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Perhaps spurred by aggressive use of executive orders and “lawmaking” by administrative agencies by the last couple of presidential administrations, several Justices on the Supreme Court have recently expressed concern that the Court’s deference doctrines have undermined core separation of powers constitutional principles.  This article explores those Justice’s invitation to revisit those deference doctrines and some of the executive actions that have prompted the concern.


No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman Dec 2015

No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman

John C. Eastman

The Hobby Lobby decision incited a wave of vitriolic responses, but it is important to understand what the Court actually held before assessing whether such a response was warranted. After reviewing the circumstances leading to the Patient Protection and Affordable Care Act and its accompanying regulations, it is clear that the Court’s legal analysis was correct. Exploring the criticisms from the media and the legal academy in light of that fact reveals the current dispute in the United States over the very nature and purpose of government. In addition scholars and citizens should note the several questions left unaddressed in …


The Power To Control Immigration Is A Core Aspect Of Sovereignty, John C. Eastman Dec 2015

The Power To Control Immigration Is A Core Aspect Of Sovereignty, John C. Eastman

John C. Eastman

Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. But I think it is so clearly a power given to Congress and that such was so well understood at the time of our founding that the Constitution did not even need to specify it. Even so, I think the Constitution does specify it. The notion that the power to regulate immigration is not contained within the power of naturalization is an anachronistic view of the …


Cheating Marriage: A Tragedy In Three Acts, John C. Eastman Dec 2014

Cheating Marriage: A Tragedy In Three Acts, John C. Eastman

John C. Eastman

In his dissenting opinion in United States v. Windsor, Justice Scalia accused the Court of “cheating,” because it decided an issue that properly belonged to the voters. But the cheating that went on in the case, and the parallel case involving Proposition 8 in California, was also of the vintage variety. This article tells the largely untold story about the many machinations by elected officials and judges to produce the end result in favor of same-sex marriage, from conflicts of interest, to collusion by nominally “opposing” counsel, and finally to an aggressive refusal by high-ranking government lawyers (including one who …


From Plyler To Arizona: Have The Courts Forgotten About Corfield V. Coryell?, John Eastman Dec 2012

From Plyler To Arizona: Have The Courts Forgotten About Corfield V. Coryell?, John Eastman

John C. Eastman

The U.S. Constitution assigns plenary authority to determination naturalization policy to the Congress. Yet increasingly the Courts have undermined Congress's policy judgments with invented constitutional rights. This article explores how the Courts have enhanced the three principal magnets to illegal immigration and thereby undermined congressional policy: employment; education and other social services; and citizenship itself.


Hidden Gems In The Historical 2011-2012 Term, And Beyond, John C. Eastman Dec 2012

Hidden Gems In The Historical 2011-2012 Term, And Beyond, John C. Eastman

John C. Eastman

No abstract provided.


2012 Supplement To The American Constitutional Order: History, Cases, And Philosophy, John Eastman, Douglas Kmiec, Stephen Presser, Raymond Marcin Dec 2011

2012 Supplement To The American Constitutional Order: History, Cases, And Philosophy, John Eastman, Douglas Kmiec, Stephen Presser, Raymond Marcin

John C. Eastman

No abstract provided.


Papers, Please: Does The Constitution Permit The States A Role In Immigration Enforcement?, John C. Eastman Dec 2011

Papers, Please: Does The Constitution Permit The States A Role In Immigration Enforcement?, John C. Eastman

John C. Eastman

This Essay explores the legal challenges two immigration bills, Arizona’s 2010 S.B. 1070 and Alabama’s 2011 H.B. 56, and addresses how the Department of Justice (DOJ) fundamentally misunderstands the nature of state sovereignty and federalism, and concludes that, with the possible exception of one provision of the Arizona law, the states are acting well within their authority to protect the health, safety, and welfare of their residents without intruding on the plenary power over immigration and naturalization that the U.S.  Constitution vests in Congress.


The American Constitutional Order: History, Cases, And Philosophy, John Eastman, Douglas Kmiec, Stephen Presser, Raymond Marcin Dec 2009

The American Constitutional Order: History, Cases, And Philosophy, John Eastman, Douglas Kmiec, Stephen Presser, Raymond Marcin

John C. Eastman

No abstract provided.


Book Review: John Yoo, Crisis And Command: A History Of Executive Power From George Washington To George Bush, John Eastman Dec 2009

Book Review: John Yoo, Crisis And Command: A History Of Executive Power From George Washington To George Bush, John Eastman

John C. Eastman

No abstract provided.


The American Constitutional Order: History, Cases, And Philosophy, John Eastman Dec 2008

The American Constitutional Order: History, Cases, And Philosophy, John Eastman

John C. Eastman

No abstract provided.


The Moral Conditions Of Liberty, John Eastman Dec 2008

The Moral Conditions Of Liberty, John Eastman

John C. Eastman

No abstract provided.


Individual Rights And The American Constitution, John Eastman Dec 2008

Individual Rights And The American Constitution, John Eastman

John C. Eastman

No abstract provided.


The Founders' Intent, Constitutional Provisions, And Limits On Spending Power And Delegation, John Eastman Dec 2008

The Founders' Intent, Constitutional Provisions, And Limits On Spending Power And Delegation, John Eastman

John C. Eastman

No abstract provided.


The History, Philosophy, And Structure Of The American Constitution, John Eastman Dec 2008

The History, Philosophy, And Structure Of The American Constitution, John Eastman

John C. Eastman

No abstract provided.


Born In The U.S.A.? Re-Assessing Birthright Citizenship In The Wake Of 9/11, John Eastman Dec 2007

Born In The U.S.A.? Re-Assessing Birthright Citizenship In The Wake Of 9/11, John Eastman

John C. Eastman

No abstract provided.


The American Constitutional Order: History, Cases, And Philosophy, John Eastman Dec 2007

The American Constitutional Order: History, Cases, And Philosophy, John Eastman

John C. Eastman

No abstract provided.


The Spending Clause, John Eastman Dec 2007

The Spending Clause, John Eastman

John C. Eastman

No abstract provided.


Born In The U.S.A.? Re-Assessing Birthright Citizenship In The Wake Of 9/11, John C. Eastman Dec 2007

Born In The U.S.A.? Re-Assessing Birthright Citizenship In The Wake Of 9/11, John C. Eastman

John C. Eastman

Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, …


Full Faith And Republican Guarantees: Gay Marriage, Fmpa, And The Courts, John Eastman Dec 2006

Full Faith And Republican Guarantees: Gay Marriage, Fmpa, And The Courts, John Eastman

John C. Eastman

"What difference does it make to your heterosexual marriage if I enter into a homosexual marriage?" Such is the frequent rejoinder to claims that traditional marriage needs to be protected by state or federal law or even by a federal constitutional amendment. Here I explore answers to that rejoinder. Marriage may be an individual bond, but it is fostered by society because it also fulfills fundamental societal functions. Indeed, we have an unbelievably important example of unintended consequences from another profound change to this important societal institution: no-fault divorce. The United States did not embrace no-fault divorce until 1969, and …


Marriage Equality In California: Legal And Political Prospects, John Eastman Dec 2006

Marriage Equality In California: Legal And Political Prospects, John Eastman

John C. Eastman

No abstract provided.


How Large Is Too Large For The Rule Of Law? Testimony Before The U.S. Senate Judiciary Committee, Hearing To Consider Proposals To Split The Ninth Circuit Court Of Appeals, John C. Eastman Sep 2006

How Large Is Too Large For The Rule Of Law? Testimony Before The U.S. Senate Judiciary Committee, Hearing To Consider Proposals To Split The Ninth Circuit Court Of Appeals, John C. Eastman

John C. Eastman

Proposals to split the U.S. Court of Appeals for the Ninth Circuit have been around since the 1950s. A serious proposal was made to split both the 5th and the 9th back in the 1970s; the 5th was in fact split (into the current 5th and the 11th), but the 9th Circuit remains as it was, by far the largest circuit court in the country, responsible for more than 40% of the nation's territorty and 1 in every 5 members of its population. The Circuit currently has 28 active judges authorized and nearly 50 actually sitting (including senior circuit judges). …


Does The First Amendment's Freedom Of The Press Clause Place The Institutional Media Above The Law Of Classified Secrets?, John Eastman May 2006

Does The First Amendment's Freedom Of The Press Clause Place The Institutional Media Above The Law Of Classified Secrets?, John Eastman

John C. Eastman

Testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, contending that Section 798 of the Espionage Act, prohibiting the publication of classified information regarding U.S. communications capabilities, can constitutionally be applied to the media, for several reasons: 1) A majority of the Justices in the Pentagon Papers case recognized that prior restraints on publication of highly sensitive, classified information regarding ongoing military and communications operations would be permissible; 2) The prospect of post-publication liability for violating the Espionage Act was also recognized by a majority of the Justices; and 3) The Freedom of Press Clause of the …


The Constitutionality Of The Nsa Surveillance Program: A Letter To The House Judiciary Committee, John Eastman Jan 2006

The Constitutionality Of The Nsa Surveillance Program: A Letter To The House Judiciary Committee, John Eastman

John C. Eastman

Following the December 2005 disclosure by the New York Times of a highly-classified National Security Agency surveillance program that was authorized by President Bush shortly after the September 11, 2001 terrorist attacks on the United States, there has been a great national debate, both scholarly and popular, about the legality of the program. Opponents claim that it violates the FISA statute's requirement that executive branch officials first obtain a warrant before conducting surveillance on enemy communications that originate or terminate in the United States itself. They also claim that, even if FISA statute was implicitly amended by the post-9/11 Authorization …


Constitutions, John Eastman Dec 2005

Constitutions, John Eastman

John C. Eastman

In the past decade, a number of state courts have found a new "fundamental right" to education in centuries-old state constitutional provisions. These courts have then used the fundamental rights determinations to establish levels of educational funding that, in the court's view, are required to be constitutionally "adequate", and even to mandate the content of the curriculum itself, ignoring considered legislative judgments to the contrary in the process. In this paper, I explore the historical understanding of the actual language of the state constitutional provisions on which these new state court decisions rest, concluding that in almost every instance the …


Listening To The Enemy: The President's Power To Conduct Surveillance Of Enemy Communications During Time Of War, John Eastman Dec 2005

Listening To The Enemy: The President's Power To Conduct Surveillance Of Enemy Communications During Time Of War, John Eastman

John C. Eastman

Ever since the New York Times published classified information in December 2005 about the efforts by the National Security Agency to intercept enemy communications to or from sources in the United States (as authorized by the President in his capacity as Commander-In-Chief), there has been a great hew and cry about the President's "illegal" conduct. Calls of impeachment have even been heard, both in the media and in the halls of Congress. The Congressional Research Serviced weighed in at the request of members of Congress, concluding that "it might be argued" that the President had violated the Foreign Intelligence Surveillance …


Adequacy And The Rights Revolution: Reinterpreting The Education Clauses In State Constitutions, John C. Eastman Dec 2005

Adequacy And The Rights Revolution: Reinterpreting The Education Clauses In State Constitutions, John C. Eastman

John C. Eastman

No abstract provided.


Philosopher King Courts: Is The Exercise Of Higher Law Authority Without A Higher Law Foundation Legitimate?, John C. Eastman Dec 2005

Philosopher King Courts: Is The Exercise Of Higher Law Authority Without A Higher Law Foundation Legitimate?, John C. Eastman

John C. Eastman

When our nation's Founders designed our constitutional system of government as the means to secure the inalienable rights described in the Declaration of Independence, they placed great stock in the structural provisions of the Constitution, even greater than in a judicially-enforceable bill of rights. Although they certainly envisioned judicial review, it is hard to fathom that they would have sanctioned a judiciary that decides every major (and a good number of the minor) political issue of the day. Even less clear is the ground of authority on which the modern-day court rests. This article considers several possible claims of legitimacy …


Politics And The Court: Did The Supreme Court Really Move Left Because Of Embarrassment Over Bush V. Gore?, John C. Eastman Dec 2005

Politics And The Court: Did The Supreme Court Really Move Left Because Of Embarrassment Over Bush V. Gore?, John C. Eastman

John C. Eastman

The premise of the "hot topics" panel at the 2005 AALS convention was that the Rehnquist Court had in 2004 retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington and Blakely v. Washington, and also in the trilogy of terrorism cases, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and …


Federal Legislation And States Rights: Of Hapless Toads, Home-Grown Medical Marijuana, And Wiccan Worship In State Prisons, John Eastman Dec 2004

Federal Legislation And States Rights: Of Hapless Toads, Home-Grown Medical Marijuana, And Wiccan Worship In State Prisons, John Eastman

John C. Eastman

No abstract provided.