Constitutional Law Commons^™

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Articles

The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Populists In Power And Constitutional Counternarratives, Giuseppe Martinico

Cardozo Law Review

In this essay I shall comment on A Pluralist Theory of Constitutional Justice by Professor Michel Rosenfeld, by developing three points that have to do with the legacy of Carl Schmitt’s constitutional theory. The first is about the progressive weaponization of constitutional law that characterizes what I call the populist constitutional counternarrative. In particular, I will explore how populists in power use constitutional law. The second point has to do with the notion of constituent power in a context of comprehensive pluralism. The third point is about the relationship between constitutionalism and political theology. The intuition behind this is that …

The Birth Of The Civil Death Penalty And The Expansion Of Forced Adoptions: Reassessing The Concept Of Termination Of Parental Rights In Light Of Its History, Purposes, And Current Efficacy, Chris Gottlieb

Cardozo Law Review

The legal construct of termination of parental rights—the act of permanently severing the legal relationship between parent and child—is deeply embedded in contemporary American child welfare law. Indeed, since the passage of the Adoption and Safe Families Act of 1997 (ASFA), it can fairly be said that our entire foster care system is structured around the threat of terminating parental rights. From the day a child is taken into state-supervised care, the clock begins ticking toward the possible permanent destruction of the parent-child relationship. In response to the financial incentives in ASFA that reward states for terminating parents’ rights, states …

Perspectives On The Constitution Of The War On Drugs: A Collection Of Posts From The Balkinization Blog, Douglas A. Berman, Rachel Barkow, Louis Michael Seidman, Kimani Paul-Emile, Jennifer D. Oliva, Shaun Ossei-Owusu, Katherine Shaw, Paul Butler, David E. Pozen

Faculty Scholarship

This collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields …

Rays Of Hope For The Administrative State, Peter L. Strauss

Faculty Scholarship

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns., and to go beyond it into decision, rather than review, of agency judgments would …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

Examining The Constitutionality Of Legislative Medical Care Bans For Transgender Youth, John Mejia

Utah Law Review

As should be abundantly clear by this Article, the stakes of bans on genderaffirming health care for transgender adolescents are existential. The recent flood of state-law bans is a low point in the ongoing fight to ensure that all people truly enjoy the liberties and protections guaranteed by our state and federal constitutions. Stories like Utah’s are more likely the rule, not the exception. Legislatures around the country are rushing to push through this legislation as quickly as possible, seemingly to catch their opponents off guard. The overwhelming majority of federal district courts to consider these laws find them repulsive …

The Long Shadow Of Food Lion, Knight First Amend. Inst. (May 31, 2024), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay discusses the continuing shadow of Food Lion, Inc. v. Capital Cities/ABC, Inc., which looms over the efforts of journalists and, increasingly of other citizens, to engage in undercover investigations to discover and disseminate truthful information on matters of profound public concern. At a time when many impediments to freedom of the press have emerged, legal barriers to undercover investigations suppress a key newsgathering tool that was once an important part of the news media ecosystem. After describing the extensive litigation battle in the case, the essay argues that the decision continues to cast a chilling effect over journalists …

Egypt’S Legal Modernism: Challenging The National Discourse, Mohamed A. El-Deeb

Theses and Dissertations

Egypt’s legal modernity is the story of the modern Egyptian state itself. Reforming the country’s judiciary in the late nineteenth century was meant to achieve ambitious aims beyond the functionality of a justice system. The utmost goal was the country’s independence from the suzerainty of the Ottoman Empire. The judicial reforms modernized the Egyptian state and built a judiciary and legal community like no other place. Egypt achieved its independent judiciary before gaining its political independence. That was a remarkable achievement of the judicial reform. That rich part of Egypt’s modern history is negated and disregarded from public awareness. Not …

The Modern Energizer Bunny - Hopping Into The Nuclear Energy Revolution: The Tenth Circuit's Analysis In New Mexico Ex Rel. Balderas V. U.S. Nuclear Regulatory Commission, Jack A. Mansur

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Criminalizing Transgender Care, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

Since 2021, twenty-four states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they …

Virtual Confessions: Examining The Clergy Privilege’S Extension To Artificially Intelligent Religious Robots, Samuel N. Dick

The University of Cincinnati Intellectual Property and Computer Law Journal

Artificial Intelligence (AI) is fundamentally changing the world. AI’s rapid development is driving its integration into every industry, including those traditionally untouched by technology—such as religion. Today, faith groups in America and globally, are integrating AI-driven robots in roles traditionally held by human priests, clergy, or pastors. AI robots have begun giving sermons, conducting funerals/weddings, providing spiritual counseling, and conducting the sacrament of confession. Some faith groups have gone further claiming the worship of AI as an independent religion, and have received § 501(c)(3) tax-exempt status as a church. Whether thoughts of sacrileges, inevitability, or a science-fiction novel emerge, AI’s …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Georgia State University Law Review

This Article analyzes the presence of zombie provisions in the United States Constitution and state constitutions and the danger that these provisions may influence the interpretation of still-living constitutional provisions.

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

An Antisemitism Academia Crisis: Communication Failure On Three Ivy League College Campuses, Rickardo W. Shuzzr

Student Theses and Dissertations

The issue of Antisemitism on college campuses in the United States has gained significant attention following the terrorist attack by Hamas on Israel on October 7th, 2023. This discriminatory behavior, hate speech versus free speech, and academia's role in the geopolitical climate have sparked protests and raised questions about the responsibility of universities today. It has even led to high-profile presidents from institutions such as Harvard, MIT, and UPenn being called to testify before a congressional oversight committee. These university presidents and others have been the subject of ongoing flak in the public sphere. As a result, there have been …

The Right To Refuse To Deal, The Essential Facilities Doctrine, And The Digital Economy, George Sakkopoulos

St. Mary's Law Journal

Various commentators, as well as the 2020 report on competition in digital markets by the majority staff of the House Judiciary Committee, have advocated for the revival of the essential facilities doctrine, especially in the context of the digital economy. This Article examines the three phases in the development of the essential facilities doctrine and the right to refuse to deal—the foundations in the early twentieth century, the contraction of the right to refuse to deal and the expansion of the essential facilities doctrine in the mid-twentieth century, and the revival of the right to refuse to deal and the …

The Poor Man's Problem In Bankruptcy, Rylee Stanley

St. Mary's Law Journal

No abstract provided.

Lustre Oil Co., Llc V. Anadarko Minerals, Inc., Ayden D. Auer

Public Land & Resources Law Review

The Montana Supreme Court held a limited liability company owned by the Assiniboine and Sioux Tribes was not protected against a quiet title action by sovereign immunity.

A De-Regulated Militia: The Diminished Training Requirements For Ohio Teachers To Carry Weapons In Schools, Richard Sharp

University of Cincinnati Law Review

No abstract provided.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

“No Superior But God”: History, Post Presidential Immunity, And The Intent Of The Framers, Trace M. Maddox

Washington and Lee Law Review Online

This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is …

Implied Consent In Administrative Adjudication, Grace Moore

Washington and Lee Law Review Online

Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative …

A Federal Inmate’S Right To Stay Home, Jordan Thorn

Texas A&M Law Review

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so …

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

Brief Of The Manhattan Institute And Notre Dame Education Law Project As Amici Curiae Supporting Petitioners, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

No. 23-1084
Jill Hile v. Michigan

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Background and Summary of Argument

Petitioners are members of Parent Advocates for Choice in Education Foundation (PACE), which seeks to protect and further educational rights. They contend that Art. VIII, § 2 of the Michigan constitution discriminates against religion. Accordingly, its enforcement would violate the Free Exercise Clause.

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

Reno-Sparks Indian Colony V. Haaland, William N. Rose

Public Land & Resources Law Review

Reno-Sparks Indian Colony v. Haaland added clarity to the scope of a federal agency’s duty to consult with Tribes under the National Historic Preservation Act. The case was the culmination of unsuccessful litigation efforts by Tribes to stop a large mining project, and it demonstrated the high hurdle Tribes face when challenging whether a federal agency has engaged in reasonable and good faith consultation.

Solar Energy Industries Association V. Federal Energy Regulatory Commission, Brandy Keesee

Public Land & Resources Law Review

In Solar Energy Industries Association v. Federal Energy Regulatory Commission (“Solar Energy”), the court grappled with a complex web of regulatory and environmental considerations. The overall dispute was the promulgation and implementation of Order 872, a directive issued by the Federal Energy Regulatory Commission (“FERC” or “Commission”), and its alignment with the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and the Administrative Procedure Act (“APA”). The dispute in Solar Energy is about FERC’s interpretation and application of PURPA in managing qualifying facilities (“QFs”). The crux of the contention was whether FERC’s 2020 rule revisions set forth in Order 872 …

The Major Questions Doctrine’S Domain, Todd Phillips, Beau J. Baumann

Brooklyn Law Review

In West Virginia v. EPA, the Supreme Court elevated the major questions doctrine to new heights by reframing it as a substantive canon and clear statement rule rooted in the separation of powers. The academic response has missed two unanswered questions that will determine the extent of the doctrine’s domain. First, how will the Court apply the doctrine to a range of different regulatory schemes? The doctrine has so far only been applied to nationwide legislative rules that are both (1) economically or politically significant and (2) transformative. It is unclear whether the doctrine applies to alternative modes of regulation …