Constitutional Law Commons^™

The Indirect Taxes, Conor Clarke, Ari Glogower

Scholarship@WashULaw

Article I of the Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts and Excises.” It is arguably Congress’s most important power. A government’s first task is to fund itself, and the absence of an enforceable funding mechanism under the Articles of Confederation was a primary reason for the Constitution in the first place. Yet scholarly and judicial attention has focused mostly on the term “taxes” (and specifically what constitutes a “direct tax” that must be apportioned) while largely overlooking the three terms that follow—the duties, imposts, and excises that are collectively known as the “indirect taxes.” 

While poorly …

Brief Of Amici Curiae Criminal Law Scholars And Legal Organizations In Support Of Petitioner, Alabama Criminal Defense Lawyers Association, Florida Association Of Criminal Defense Lawyers, Kentucky Association Of Criminal Defense Lawyers, Criminal Defense Attorneys Of Michigan, North Carolina Advocates For Justice, Virginia Association Of Criminal Defense Lawyers, Due Process Institute, Ira P. Robbins, Kyle Singhal

Amicus Briefs & Court Filings

SUMMARY OF THE ARGUMENT: The Sentencing Guidelines are, in practice, the most consequential legal text in federal criminal law. Yet this Court has abstained from interpreting the Guidelines for decades. That practice is anomalous in the federal judiciary and should end. District courts must correctly calculate every defendant’s guideline range at every sentencing hearing. Courts of Appeals routinely hear appeals asserting guideline mistakes. And differences of appellate opinion over purely legal, highly consequential questions often arise. This Court apparently declines to hear such cases because the Sentencing Commission could resolve those conflicts. See Braxton v. United States,500 U.S. 344, …

Inequality, Collective Power, And Democratic Renewal, Kate Andrias

Faculty Scholarship

With each passing week since this essay series commenced, American democracy has come under greater threat. Leading political scientists have concluded that the U.S. is now better described as a competitive autocracy rather than a democracy. President Trump’s recent attacks on core institutions and violations of the rule of law — from the use of violent force by ICE to the investigation of the Federal Reserve Chair and the threats involving Greenland — were unimaginable even a few months ago.

The Health Status Of U.S. Democracy, Philip C. Bobbitt

Faculty Scholarship

In 1776, Thomas Paine wrote Common Sense, a pamphlet that galvanized American public opinion in the aftermath of the colonial confrontations at Lexington and Concord. The disorganized revolt against British authority was largely undecided on next steps, public opinion having failed to coalesce around capitulation to London or revolution against the British government. Paine’s argument for American independence was uncompromising. Prefiguring the Declaration of Independence that put King George III front and center in the emerging conflict, Paine wrote: “In the monarchies, the King is the Law but in America, Law is King.”

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

Scholarly Articles

This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Legislature Of The State Of Nevada V. Elko County, 142 Nev. Adv. Op. 57 (Aug. 20, 2026), Lillian Fitzpatrick

Nevada Supreme Court Summaries

In Legislature of the State of Nevada v. Elko County, the Nevada Supreme Court struck down a school-funding tax mandate whose population range fit exactly one county—holding that a statute need not name Elko County to target it.

Deamicis V. State Of Nevada, 142 Nev. Adv. Op. 53 (August 20, 2026), Khadija Bhatti

Nevada Supreme Court Summaries

Under NRS 200.471(1)(a)(2), a defendant may be convicted of assault for each person the defendant intentionally places in reasonable apprehension of immediate bodily harm.

State Legislatures: Guardians Of The Federal Balance, Practical Strategies For Monitoring, Strengthening, And Sustaining American Federalism (Remarks), Christian G. Fritz

Faculty Scholarship

My remarks today are drawn from my book, Monitoring American Federalism: The History of State Legislative Resistance, and from an essay I wrote this year for the Center for the Study of Federalism about the responsibility of state legislators to sound the alarm when the federal government overreaches its constitutional authority.

Jessica De Falco V. The State Of Nevada, 142 Nev., Adv. Op. 51 (Aug. 06, 2026), Umar Abdullah

Nevada Supreme Court Summaries

It is not a violation of separation of powers when a prosecuting attorney withholds consent to a jury trial waiver under NRS 175.011(1) because the state constitution protects both parties' right to jury trial.

The Possibilities Of Constitutional Education, Mark Jia

Georgetown Law Faculty Publications and Other Works

Constitutional scholarship has traditionally focused on formal constitutional actors: courts, legislatures, and executives. These actors are often regarded as primary sources of constitutional law, or in some cases, as final arbiters of constitutional meaning. More peripheral in this literature are actors thought to transmit what courts and high officials have established. These constitutional educators, including law professors, legal journalists, and civics planners, are often overlooked for defensible reasons: They lack the normative authorities of formal institutional actors, and they do not exercise power as it is often understood in public law.

This Article advances a general theory of constitutional education …

Mapping Minority Investigative Powers In Congress, David Rapallo

Georgetown Law Faculty Publications and Other Works

“Shut down the Senate . . .” “Roll over and play dead . . .” In the first hundred days of President Donald Trump’s second term, these were the rallying cries of two far ends of a debate among Democrats about how to respond to the administration’s unprecedented actions. This debate, which rages on today, has been marked by a lack of specificity about the various oversight tools available to members of the minority party in Congress, particularly when they investigate whether the Executive Branch is faithfully executing the laws Congress passes. Scholarship too has focused little on the full …

Classical Liberalism And Property, Thomas W. Merrill

Faculty Scholarship

Classical liberalism is characterized by several key attributes. Its central normative criterion is the well‑being of the individual, not some aggregate like society or the nation‑state. Individuals are presumptively regarded as responsible actors, capable of judging their own best interests and accountable for their actions that interfere with the well‑being of others. Because individuals are presumptively regarded as responsible actors, there is a strong preference for imposing only minimal obligations on them through the power of the state, and these usually involve general negative duties that are universal in character, chiefly to forbear from using force or fraud to interfere …

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Faculty Scholarship

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President — the “highest” and most powerful of all government officers — is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article …

The Contested Contingent Constitution: Plutocrats, Right-Wing Populists, And Labor Rights In The U.S., Kate Andrias

Faculty Scholarship

Constitutional labor rights have long been negligible in the United States. Now, with the ascendance of Donald Trump’s right-wing authoritarianism, even statutory labor rights are under threat. Yet there is an apparent paradox: While the Trump Administration seeks to declare the NLRB unconstitutional and has decimated federal workers’ rights, Trump’s “Make America Great Again” (MAGA) movement rose to power in part by invoking the plight of the American worker. The more populist wing of the American Right does not expressly challenge the constitutionality of labor law. Indeed, some right-wing populists urge an expansion of labor rights, emphasizing such goals as …

Other People's Poverty, Emmanuel Hiram Arnaud, Shaun Ossei-Owusu

Faculty Scholarship

Puerto Ricans have a relationship with the United States that is historically unparalleled. They have been citizens of the United States since 1917, served in every major conflict since World War I, and have been influential members of American culture, politics, and society. Yet, Puerto Rico is not fully part of the United States. The island of 3.2 million people— more than the population of eighteen states—is a U.S. territory. This means the federal government wields its complete and largely unrestrained plenary power over the Island, often treating Puerto Ricans differently than the rest of the United States. This differential …

Brief Amicus Curiae Of Administrative And Constitutional Law Professors In Support Of Petitioners, Robert Glicksman, Richard Pierce, Alan B. Morrison, Jeffrey Lubbers, Peter L. Strauss

Amicus Briefs & Court Filings

INTRODUCTION AND SUMMARY OF ARGUMENT: The ninety-six temporary agricultural workers employed by respondent were allowed to come to the United States solely because Congress established the program that governs their employment. As petitioners’ brief demonstrates, in order for respondent to be eligible to bring in foreign workers, it had to submit an application to the Department of Homeland Security. As part of that process, respondent had to establish that it would not employ non-citizen workers to displace domestic workers. Included in the required showing is an agreement by respondent to pay both domestic and foreign workers the same pay, so …

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Exploring The Limits Of Qualified Immunity Under Harlow’S Discretionary Function Test, James E. Pfander, Alexander A. Reinert

Articles

No abstract provided.

Some Realism About Constitutional Remedies, Thomas P. Schmidt, Gillian E. Metzger

Faculty Scholarship

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii,  for example, the Supreme Court upheld President Trump’s infamous travel ban by focusing not on the “particular President” and his past call for a “complete shutdown of Muslims entering the United States,” but rather on “the authority of the Presidency itself.” That is the language of institutional formalism.

Realism, on the other hand, peers into the “black …

Aggregation And The “Universal” Injunction, Portia Pedro, Adam Steinman

Faculty Scholarship

A crucial function of judicial review is not only “to say what the law is,”¹ but also to provide the remedies to vindicate that law.²  Judicial review plays an especially important role when government officials act in ways that violate federal law, including when they violate the Constitution.³  When government officials violate the law, the judicial review function supports a remedy that requires officials to comply with federal law by ceasing to pursue the illegal policy or practice.

Such “compliance” injunctions have been given the label “universal” or “nationwide” injunctions insofar as they go beyond giving “complete …

The Colonial Borders Within: Racial Profiling, Language, And Civil Juries, Jasmine Gonzales Rose

Faculty Scholarship

This Article builds on the scholarship of Kevin R. Johnson, whose work has long illuminated how immigration law and constitutional doctrine have enabled the subordination of Latines through racial profiling,2 language discrimination,3 and exclusion from civic institutions, like juries.4 His analyses of juror exclusion and the importance of a diverse judiciary underscore how the composition of civil and criminal factfinders shapes both recognition of harm and the remedies afforded.5 Long before the current period of intensified, abusive immigration enforcement, his scholarship traced the historical roots of these practices, examined their contemporary manifestations, and revealed the ways in which the law …

Making The Party Presentation Principle Safe For Originalism, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of …

The Administrative Law Of Mccarthyism, Nicholas Handler

Faculty Scholarship

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC …

Planned Parenthood Mar Monte, Inc. V. State Ex Rel. Office Of The Nevada Attorney General (Civil), 142 Nev. Adv. Op. 40 (May 28, 2026), Charnel Gibson

Nevada Supreme Court Summaries

Nevada’s parental notification abortion statute is likely unconstitutionally vague because it fails to provide physicians with adequate notice of the conduct required and permits arbitrary enforcement.

Academic Freedom's Inflection Point, Jerry C. Edwards

Law Faculty Scholarship

Academic freedom faces an existential crisis. The Trump administration, building on a movement that began in the states, is seeking ideological conquest of higher education. Some universities have already surrendered. Others fight on, facing an endless barrage of assaults on their institutional autonomy. Faculty too have chosen to resist, relying on their free expression rights. One of the most potent weapons in higher education’s arsenal is the constitutional academic freedom doctrine, a First Amendment protection that safeguards faculty’s academic expression and universities’ academic judgments. But the Supreme Court’s embrace of history and tradition as a focal point of its individual …

Powers V. Dist. Ct., 142 Nev. Adv. Op. 35 (May 14, 2026), Luis Dorantes

Nevada Supreme Court Summaries

NRS 629.620 is unconstitutional and of no effect to the extent that it conflicts with NRCP 35 in governing court-ordered mental and physical examinations during civil discovery.

When The Second Amendment Meets The Third Dimension: Bruen In The Age Of 3d-Printed Firearms, Andrew Touma

Duke Journal of Constitutional Law & Public Policy Sidebar

3D-printed firearms pose a serious threat to the public by allowing individuals to circumvent traditional regulatory safeguards. Although the first shot from a 3D-printed firearm was over a decade ago, these weapons continue to exploit gaps in the federal regulatory scheme. In the meantime, state governments have adopted a variety of approaches to regulating 3D-printed firearms. As 3D printing pushes firearms technology into the future, the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen directs Second Amendment doctrine to look to history, leaving questions over whether a decidedly historical methodology could effectively adapt to technological …

Don't Ask, Don't Tell, Don't Possess: Mapping A Potential Second Amendment Challenge To 18 U.S. Code § 922(G)(6), Emil Zakarian

Duke Journal of Constitutional Law & Public Policy Sidebar

For decades, the United States military discharged LGBTQ+ service members based on their sexual orientation, often assigning discharge characterizations that carry enduring legal consequences. One overlooked consequence arises under 18 U.S.C. § 922(g)(6), which prohibits individuals discharged "under dishonorable conditions" from possessing firearms. Although this provision has received limited judicial scrutiny, the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen calls its constitutionality into question by requiring that modern firearm regulations be consistent with the Nation's historical tradition of regulation.

This Note argues that § 922(g)(6) is constitutionally vulnerable as applied to veterans discharged solely …

It's In The Money: The Independent Federal Reserve, Kathrynne E. Curtis

Duke Journal of Constitutional Law & Public Policy Sidebar

The case at the heart of the current controversy involves the President's firing of a Federal Reserve Governor against a backdrop of crumbling precedent. The backbone of administrative agency independence, Humphrey's Executor, awaits the Supreme Court's judgment. Therefore, distinguishing the Federal Reserve—responsible for controlling monetary policy and setting interest rates—has never been more pressing. This Note argues that the Federal Reserve can be meaningfully distinguished on a historical basis, as the Court suggests in Trump v. Wilcox, by reference to its family tree: the First and Second National Banks. Precedent and the fallout from lapses in the early …

Statutory Backups For Endangered Constitutional Rights, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the phenomenon of “statutory backup rights,” or statutes that provide protections parallel to constitutional rights that are believed to be at risk of judicial abrogation. Proposals for backup rights gained attention in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which not only eliminated the constitutional right to abortion but called into question some other constitutional rights as well. Shortly after Dobbs, Congress enacted a limited statutory backup for same-sex marriage. States have created backup rights across a range of topics, some of which appeal mostly to those …