Law and Politics Commons^™

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 …

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 …

Legal Academia And Permanent Democracy: The Fault In Our Law Schools, Sara Dillon

DePaul Journal for Social Justice

It is widely recognized that the American Constitution is failing as the foundational document of a modern democracy. Although many basic principles of constitutionalism have faded into irrelevance, with rising authoritarianism eclipsing such core ideals as judicial independence, separation of powers and restraints on arbitrary use of power, America’s nearly 200 institutions of legal teaching and scholarship have provided little in the way of proposals for urgently needed law reform. It is striking that even with so many high-powered academic institutions, so few meaningful proposals for constitutional change have been presented to the public as a way out of our …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

The Ideational Dimension Of Judicial Power, Allen C. Sumrall

Marquette Law Review

The judiciary dominates contemporary American politics. In the United States, courts have overcome their humble origins to act as central figures in nearly every major policy dispute and separation of powers dispute. To explain this development, scholars have documented the increase in the federal judiciary’s institutional capacity and resources. Most accounts of the judiciary’s changing role in American constitutional politics focus on the courts’ expanded jurisdiction, the statutes that channel judicial review, the courts’ material resources, or changes to how politicians harness or respond to the judiciary. But focusing on these more formal institutional changes only gets us so far. …

Does The 25th Amendment Merit Reform?: The Challenge Of Determining Presidential Disability, Karena R. Andreassen

Honors Theses

This research project examines the persistent lack of use of the 25th Amendment to the United States Constitution in its original form, despite many calls for the reform of the language or expansion of its application as situations unfold. Adopted in 1967, the amendment was created to address the challenges of presidential succession and incapacity. However, historical events over the last few decades, such as the assassination attempt on Ronald Reagan, Reagan’s colon cancer, and the general increase in the age at which presidents assume office, have contributed to scrutiny over the amendments’ provisions. This study will explore why specifically …

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

The Three Elements Of 303 Creative And How They Limit The Decision’S Impact, Dillon J. Richards

University of Miami Law Review

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union, Caroline Bullock

CMC Senior Theses

This thesis situates state constitutionalism in the modern context of federal constitutional paralysis. By tracing patterns of state constitutional development, we find that states were always the fundamental setting of democracy, and there has always been critical action happening at state legislatures, in state courts, and through state constitutional change. State constitutions provide an active means to achieve progress and protect rights not federally enshrined (and thus, endangered by the political process). The use of state constitutions to prescribe ways of life, protect individual and specialized rights, and to limit local governments has always occurred, but with the current federal …

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo

University of Miami Law Review

Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein, Gary S. Lawson, Jack M. Beermann

Faculty Scholarship

In a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Political Equality, Gender, And Democratic Legitimation In Dobbs, Aliza Forman-Rabinovici, Olatunde C.A. Johnson

Faculty Scholarship

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the …

States May Statutorily Bind Presidential Electors, The Myth Of National Popular Vote, The Reality Of Elector Unit Rule Voting And Old Light On Three-Fifths Of Other Persons, William Josephson

University of Miami Law Review

This Article discusses the United States Supreme Court’s July 6, 2020 decision in Chiafalo v. Washington State as it impacts the most in-depth analysis yet published of the proposed National Popular Vote (“NPV”) Interstate Compact. NPV purports to provide for popular vote election of a President of the United States even if the winner of the popular vote did not win the Electoral College. It concludes that NPV cannot accomplish its purported purpose. The article also criticizes a recent article proposing dividing each state’s electors vote in accordance with the popular vote proportions in each such state instead of, as …

Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth …

Constellating History: An Investigation Into The Supreme Court’S Treatment Of Congressional Consent Under The Compact Clause, Rohan Koosha Hiatt

Lewis & Clark Law Review

The Supreme Court cases of U.S. Steel Corp. v. Multistate Tax Commission and Wharton v. Wise, decided over 80 years apart, set forth different narratives for the evolution of the nonliteral test for consent under the Compact Clause. This Note investigates these competing historical claims in order to reconcile incompatible understandings of how the test evolved, ultimately identifying a more complex origin of the test than the one articulated in U.S. Steel. In so doing, this Note sheds light on the ability of the Court to not only bring history to light, but also to obscure it.

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

American University Law Review

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

The Place Of The Presidency In Historical Time, Robert L. Tsai

Faculty Scholarship

This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …

Texas: A Weak Governor State, Or Is It?, Ron Beal

St. Mary's Law Journal

The current Texas Constitution was adopted in 1876 and was written after the Civil War and the Reconstruction Period when Federal troops occupied the State. The general perception is that the Federal troops used the Governor, in essence, to impose a form of dictatorship over the people. It was clearly the intent of the new constitution’s framers to create a very weak governor form of government in order to spread its powers to many independently elected officials. It provided that the state officers who were appointed by the Governor and approved by the Senate were semi-independent from the Governor by …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent

Chicago-Kent Law Review

No abstract provided.

Impeachment As A ‘Madisonian Device’ Reconsidered, Amanda Hollis-Brusky

Chicago-Kent Law Review

No abstract provided.