Constitutional Law Commons^™

Qui Tam Relators As Article Iv Officials, Chad Squitieri

Scholarly Articles

Since the earliest days of the republic, Congress has empowered private plaintiffs—called qui tam relators—to bring claims in court on behalf of the United States. Today, qui tam litigation accounts for billions of dollars in judgments and settlements each year. But despite qui tam’s modern significance and historical pedigree, its constitutionality has recently been questioned. To wit, several sitting Supreme Court Justices have suggested that qui tam violates the President’s Article II authority because it empowers private relators—who are neither appointed nor supervised by the President—to enforce federal law. Following similar logic, a lower federal court recently ruled a prominent …

Inside, Outside, And In Between: Black Homeplace As A Blueprint For Privacy Law, Nina-Simone Edwards

Library Scholarship

This essay reimagines the meaning of home and privacy for Black Americans by interrogating the legal and technological systems that routinely collapse the sanctity of the homeplace. Using the no-knock warrant as a central case study, this essay illustrates how state-sanctioned intrusions transform a space of rest, memory, and self-making into a site of violence. Although Fourth Amendment doctrine purports to guard against unreasonable searches, its prevailing binary framework–distinguishing only between “inside” and “outside” the home–renders Black domestic spaces uniquely vulnerable. Drawing from Critical Race Theory, particularly its social construction thesis, this essay shows how race, law, and technology co-produce …

The Unconstitutional Attempt To Criminalize Naming Ice Agents, Noah C. Chauvin

Faculty Articles

Some members of Congress propose to make it a crime to publish the name of a federal official with the intent of obstructing that official’s law or immigration enforcement duties. This Essay considers whether the lawmakers’ bill, the Protecting Law Enforcement from Doxxing Act, is consistent with the First Amendment. It is not.

Species Of State Constitutional Lockstepping, Michael L. Smith

Faculty Articles

When interpreting state constitutional provisions, state courts frequently take a "lockstep" approach by adopting the United States Supreme Court's interpretation of analogous federal constitutional provisions. Critics often portray lockstep interpretation as misguided and have identified varieties of lockstepping, including unreflective, reflective, prospective, and methodological lockstep interpretation. This Article contributes to these discussions by identifying several additional forms of lockstep interpretation that have thus far gone undiscussed: lazy, mandatory, atextual, and sticky lockstepping.

Several of these variations highlight distinct failures of state courts to independently interpret state constitutions. This includes lazy lockstepping, where state courts tend to engage in repeated, thoughtless …

Examining Reproductive Equity In The Post-Roe United States, Yali Pang, Anna Grace Causey, Nakeina E. Douglas-Glenn, Research Institute For Social Equity Rise

Research Institute for Social Equity

Four years after the U.S. Supreme Court overturned Roe v. Wade, state-level variation in reproductive rights policy is associated with substantial geographic inequities in access to abortion and reproductive health care across the United States. The adoption of restrictive or protective reproductive rights policies is closely tied to legislative control, underscoring the political drivers of reproductive inequity. The evidence suggests that advancing reproductive equity will require coordinated national, state, and local response to strengthen healthcare infrastructure, reduce economic barriers, and establish durable legislative protections for reproductive rights.

Applying History As Law: The Role Of Historical Facts In Implementing Constitutional Doctrine, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory …

Justice In Erotic Spaces, Elena L. Cohen

Cardozo Journal of Equal Rights & Social Justice

This Article posits that the concept of "erotic justice" could be used by courts to push back against the current cascade of anti-LGBTQ+ laws and meaningfully improve the lives ofgay and trans people. The beginning of the twenty-first century was widely seen as a time of great progress for LGBTQ+ people, with the legalization of gay marriage in countries across the world seen as the ultimate triumph. Yet there is a strong contemporary movement to re-criminalize the lives of LGBTQ+ people and to remove protections that have been granted by courts. In the U.S., the 2020s have seen an ongoing …

Data Sanctuaries: Rethinking Technological Progress To Preserve Federalism, Nathan S. Lee

Cardozo Journal of Equal Rights & Social Justice

Why are sanctuary states and cities in the present moment largely failing to protect immigrants and other vulnerable people from federal enforcement of an agenda based on mass deportation and fear? While federalism was painted during the Civil Rights Era as a weapon of states to protect policies of discrimination and segregation, federalism was also a powerful tool used by Northern States before the Civil War to resist Southern and federal laws enabling the dehumanizing capture and transport offugitive slaves (or suspected fugitive slaves). What has changed in the passing years to make federalism seem like such a thin concept, …

Distributional Reinforcement Theory, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As Donald Trump’s assault on Diversity, Equity, and Inclusion (DEI) reveals, the concept of racial equality is sufficiently malleable that what used to be viewed as remedies for discrimination against racial minorities can now be recharacterized as reverse discrimination against the White majority. Such recharacterization is possible because the concept of equality itself lacks any stable meaning that exists independent of one’s normative preferences about race. In a democracy, normative disputes are properly resolved through the political process, unless there is some representation reinforcement defect that makes judicial intervention necessary to ensure compliance with our second order constitutional equality principle. …

Trolling The Rule Of Law: Presidential Lawfare, The Stalingrad Defense, And The Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on presidential lawfare, examines the so-called “Stalingrad Defense”—a strategy of total procedural obstruction—within the broader phenomenon of rule-of-law backsliding facilitated by legal professionals. By exhausting judicial resources and weaponizing procedural delays on behalf of political leaders, such lawyers do not merely defend a client; they actively participate in subverting the institutional foundations of democracy. I argue that the standard conception of legal ethics, which emphasizes neutral partisanship and zealous advocacy, is fundamentally inadequate to capture the wrongfulness of lawyers who use legal tools to dismantle the legal system itself. In its place, I propose …

Gender Therapy False Equivalency, Scott Skinner-Thompson

Publications

One critical dispute surrounding the rights of LGBTQ people and societal recognition of their existence is the legal debate regarding very different types of gender therapy. On the one hand, several states have banned the provision of gender-affirming medical care to transgender youth, positing that it is a dangerous form of mutilation. A separate set of states has banned the practice of so-called gay or gender conversion therapy that seeks to transform youth away from their queer identities, concluding that it is a form of abuse. Both sets of laws have been challenged in courts with the Supreme Court recently …

Moody V. Netchoice And Telecom Law's First Amendment, Blake Reid

Publications

No abstract provided.

Separation Of Copyright Powers, Blake Reid

Publications

The United States Copyright Office’s multifarious roles in the U.S. copyright system have long prompted uncertainty about its position among the branches of the federal government. From its formal home in the Library of Congress, the chameleonic Office has accumulated a wide range of advisory, rulemaking, adjudicative, and administrative functions that have long prompted questions about both agencies’ exercise of dueling legislative and executive powers.

Despite its increasingly sprawling portfolio and unusual configuration, the Office has never faced a serious separation-of-powers reckoning—until now. In the span of just five days in May 2025, Donald Trump fired the Librarian of Congress …

Jawbreaking And Counterboning, Blake Reid

Publications

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Publications

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

Activist Judicial Restraints, Michael Gentithes

Akron Law Faculty Publications

For decades, jurists and scholars have touted the virtues of judicial restraint—a characteristic of judges who only adjudicate issues they are competent to resolve, thereby avoiding political thickets and preserving their authority. Judicial restraint is ingrained in justiciability doctrines that emanate from Article III of the Constitution. When applied evenhandedly, standing requirements, the political question doctrine, and prudential manageability prerequisites to litigation help the Court maintain an appropriately restrained docket.

The Roberts Court falls well short of this restrained ideal in potentially dangerous and destructive ways. The Court has changed justiciability doctrines into “activist judicial restraints” that, rather than avoiding …

A Theory Of Major Questions, Nicholas Almendares

Cardozo Law Review

The major questions doctrine has been fiercely criticized as an example of the Supreme Court’s “imperial” turn where it concentrates ever more power in its own hands. The doctrine is sweeping, vague, and lacks a clear justification. Not only does the Court get to decide when the doctrine applies and when the heightened standard is satisfied, but it has also not offered good reasons behind this rule. A well-defined theory would give the doctrine structure, clarity, and consistency. While majority opinions have been conspicuously quiet on the theory behind the major questions doctrine, concurrences, namely by Justice Gorsuch, have argued …

Disconsents, Daryl J. Levinson, David E. Pozen

Faculty Scholarship

Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent-based regulation that have been identified within myriad domains, the Article identifies …

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

Teaching Constitutional Law: Politics, Democracy And History, Andrea Scoseria Katz

Scholarship@WashULaw

Teaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our …

Spending Programs And The New Roberts Court, Nicole Huberfeld

Faculty Scholarship

The Supreme Court is poised to place new limits on Congress’s spending power at the urging of states vying for regulatory dominance, particularly in health care and public health. This article is the first to highlight and catalog the throughlines of argumentation, which sparked after states successfully challenged the ACA but have grown into opposing more than Medicaid’s cooperative federalism. This means federal and state programs that heavily rely on federal spending power are at risk, so studying this pattern is imperative. The article begins with a descriptive account of increasing spending power challenges, which make use of converging factors …

The Unitary Theorists' Appointments Clause Problems, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This …

The Missing Constitutional Law Of Executive Conditions, Nicole Huberfeld, Matthew B. Lawrence

Faculty Scholarship

This Article contributes to development of the constitutional law of executive conditions. Courts are wrestling with the constitutionality of federal efforts to encourage what the federal government cannot mandate—speech on particular subjects, participation in cooperative federalism programs, and so on—but have failed to appreciate an important distinction. Binding statutory conditions articulated by Congress or an executive branch delegee (statutory conditions) and non-binding executive conditions articulated by executive branch actors engaged in regulation by deal (executive conditions) are different in constitutionally salient ways that can and should inform the development of workable doctrine. Yet courts, advocates, and scholars have only begun …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Why Constitutional Argument Matters, Philip C. Bobbitt

Faculty Scholarship

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis — the system …

Obituary For The Birth Certificate, Malinda L. Seymore

Faculty Scholarship

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …