Flynn’s New Argument Is Constitutional Nonsense
The integrity of prosecution is an executive concern, but it’s a judicial one too.
The Very Real Problem of Both Trump and Pence Getting COVID-19 at the Same Time
If the president and the vice president become incapacitated simultaneously, the country could face a constitutional crisis.
The Supreme Court Is Not Going to Fix the Electoral College
The Court will decide whether electors must vote for their party’s candidate, but no matter the answer, the system will still be a disaster.
The Great Irony of America’s Armed Anti-Lockdown Protesters
They say they are demonstrating against tyranny, but they are in fact enjoying an extreme—and dangerous—sort of liberty.
Not Everyone Is Happy With the Supreme Court’s Live Broadcasts
Lyle Denniston, one of the most seasoned Court watchers of all time, is unimpressed by the new format.
The Supreme Court Case That Could Destroy the Balance of Powers
By accepting Trump’s argument for keeping his finances secret, the Court could strip Congress of its ability to hold this, or any, president to account.
An Attack on a Fundamental Principle of Justice
Prosecutorial discretion is necessary for law enforcement to work. But dropping the case against Michael Flynn is an abuse of this power, one that egregiously undermines the rule of law.
The Supreme Court Says Sorry, It Just Can’t Help With Political Corruption
In overturning the criminal convictions that resulted from the Bridgegate scandal, the Court is embracing a view of the world that is unbearably bleak.
Oklahoma’s Suspect Argument in Front of the Supreme Court
The state claims that affirming a reservation in eastern Oklahoma could lead to thousands of state criminal convictions being thrown out. But that argument doesn’t seem to be based on facts.
The Supreme Court Could Use the First Amendment to Unleash a Robocall Nightmare
The Court will soon decide whether automated calls to cellphones, however annoying they may be, are constitutionally protected.
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The New Federalism
In a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers.
Congress Needs to Be Way, Way Bigger
Members of the House simply cannot adequately respond to the needs of hundreds of thousands of people.
A Citizen’s Guide to SCOTUS Live
America’s new reality show begins Monday.
We Are Losing a Generation of Civil-Rights Memories
America’s response to the pandemic harkens back to ugly times in our country’s history. But to recognize that, we need to know our elders’ stories.
States Are Using the Pandemic to Roll Back Americans’ Rights
Some state governments are criminalizing and censoring lawful speech under the guise of protecting public health.
Americans’ Faith in Law Is at Stake in the DACA Case
The Supreme Court has the opportunity to prove to the country that despite all the hardships that surround us, humanity is not dead, and cruelty does not rule the day.
The Important First Amendment Principle Now at Risk
The Supreme Court may hear a case that will test the country’s commitment to protecting protest organizers.
The Coronavirus Is Testing America’s Commitment to People’s Constitutional Rights
The government’s reaction to COVID-19 in jails and ICE detention facilities must follow settled legal precedent on acceptable conditions of confinement. The pandemic does not change that obligation.
Hamilton Would Not Have Stood for Trump’s New Constitutional Theory
Even the Founding Father with the most expansive view of executive power would have found Trump’s recent constitutional ideas troubling.
Trump Is Threatening to Subvert the Constitution
A president cannot just make Congress disappear when he wishes.
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The Flaw in the President’s Newest Constitutional Argument
At a technical, legal level, Donald Trump’s proposal to force Congress to adjourn doesn’t hold up.
America’s COVID-19 Disaster Is a Setback for Democracy
If the country’s institutions cannot function effectively during a crisis, and especially if a view takes hold that authoritarian regimes are managing the crisis more decisively, a grim future lies ahead.
Zoom Congress Is Perfectly Constitutional
A belief seems to persist among some on Capitol Hill that the Constitution requires members’ physical presence to do the nation’s business. This is false.
Trump’s Backwards Federalism Could Actually Work
Even if the president can’t mandate the states to reopen their economies, he can still do plenty to force that outcome.
The Supreme Court Should Never Go Back to Its Pre-coronavirus Ways
The Court’s decision to make oral arguments more accessible and transparent is unprecedented—and should be the norm even after the pandemic.
The Supreme Court Has Chosen Reckless Partisanship
The conservative majority asked citizens in Wisconsin to risk their lives in order to vote—to the benefit of the Republican Party.
The Supreme Court’s Wisconsin Decision Is a Terrible Sign for November
The justices are forcing citizens to choose between voting and staying safe from the coronavirus. This fall’s election could be no different.
How to Actually Use the Defense Production Act
There is no magic in the DPA’s mere invocation. The question is what that invocation makes possible and whether it serves the country’s complex supply needs.
Common-Good Constitutionalism Is an Idea as Dangerous as They Come
It’s an argument for authoritarian extremism.
Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution
This wolf comes as a wolf.
Authoritarian Populists Have Six Classic Moves. Trump’s Response to COVID-19 Uses Five of Them.
While the president may not be using the coronavirus to consolidate power, Americans should still be worried about the threat he poses to democracy.
Trump Shouldn’t Be Able to Fire Fauci for Contradicting Him
Congress should act to protect directors of the various parts of the National Institutes of Health—of whom Anthony Fauci is one—from the wrath of the president.
Innocent Prisoners Are Going to Die of the Coronavirus
When the machinery of justice is halted abruptly, some of the people trapped inside are not supposed to be there at all.
Why There’s No National Lockdown
Enforcing a large-scale quarantine would be legally murky, even if it’s what the country needs to slow the spread of the coronavirus.
Beyond Originalism
The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework.
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How Donald Trump Could Steal the Election
The president can’t simply cancel the fall balloting, but his state-level allies could still deliver him a second term.
Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence
The Supreme Court will soon decide whether one state can constitutionally mandate “partisan balance” on its judicial benches.
Vote-by-Mail Can Save the 2020 Election
It’s a time-tested and straightforward solution, and the time to plan for it is now.
Martial Law Would Sweep the Country Into a Great Legal Unknown
The prospect, while still remote, is not purely hypothetical in the current crisis, and the risk is great.
The Vote Must Go On
Don’t let the coronavirus undermine America’s election.
Red and Blue America Agree That Now Is the Time to Violate the Constitution
People of both parties seem rather okay with undermining core civil liberties in order to fight the pandemic.
America’s Weak Property Rights Are Harming Those Most in Need
Poor people are more likely to see their homes and belongings seized by the state for dubious reasons.
The Right Way to Activate the National Guard
There are three methods of mobilizing America’s citizen soldiers. Which one Trump chooses will matter a great deal.
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Why the Supreme Court Should Protect the CFPB’s Independence
I led the agency for six years. It must keep doing its important work of protecting consumers.
How a Fragmented Country Fights a Pandemic
During the 1918 influenza crisis, public officials faced similar challenges to the ones American government is confronted with today.
Close the Churches
State and local shutdown orders shouldn’t exempt religious gatherings, and those communities should comply.
The American Presidency Wasn’t Built for Men This Old
Should the country have an upper-limit age restriction on those seeking its highest office?
One Change That Could Make American Criminal Justice Fairer
The system systematically favors prosecutors. Creating a position of defender general would be a step toward righting things.
The Chaos Coming for the U.S. Election
The Supreme Court will soon hear two cases that could upend the entire Electoral College system just months before voters go to the polls.
The True Danger of the Trump Campaign’s Defamation Lawsuits
The president will likely lose his cases against The New York Times, The Washington Post, and CNN. But he may inflict extraordinary damage nevertheless.
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What If the Court Saw Other Rights as Generously as Gun Rights?
Both gun-rights advocates and educational equity activists use similar legal strategies. Why does the Supreme Court treat them so differently?
Trump Is Counting on the Supreme Court to Save Him
The president’s remarkable lawsuit against his own accountants and bankers can succeed only if the conservative majority intervenes on his behalf.
Chuck Schumer Needs to Watch Himself
Imitating Trump’s threats is not the way to preserve the rule of law in this country.
Trump Is at War With the Whole Idea of an Independent Judiciary
Will the Supreme Court’s conservative majority do anything to stop him?
The World Is Experiencing a New Form of Autocracy
Today’s authoritarians use legal measures to subvert constitutional constraints on their power.
Donald Trump’s Strange and Dangerous ‘Absolute Rights’ Idea
This is a profound misunderstanding of the American constitutional system.
The Trump Administration Is Gagging America’s Immigration Judges
The change comes at a time when the perspective of immigration judges would be particularly valuable to the public.
The Mysterious Meaning of the Second Amendment
Even with the help of powerful 21st-century linguistic databases, the phrase “keep and bear arms” remains debatable.
Trump’s DOJ Interference Is Actually Not Crazy
In Trump’s mind, he is not politicizing law enforcement. On the contrary, he is trying to fight politicization coming from his opponents within the department.
The Enemy of Poor Americans
Over the past half century, the Supreme Court’s empathy for the poor has been replaced by hostility.
Trump’s Quiet Power Grab
The president’s administration is attempting to bring thousands of federal employees under his control, and the public is largely unaware.
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What Would Happen If Trump Refused to Leave Office?
A peaceful transfer of power is necessary for American democracy to survive.
Our Founders Didn’t Intend for Pardons to Work Like This
The Constitution allows the president to forgive any federal crime, but just because he can does not mean he should.
A Coronavirus Quarantine in America Could Be a Giant Legal Mess
America’s defense against epidemics is divided among more than 2,000 individual public-health departments, which makes implementing a national strategy very difficult.
Madison’s Nightmare Has Come to America
The impeachment and subsequent acquittal of President Trump have revealed deep flaws in the constitutional system.
America May Be Nearing the End of the Roe Era
June Medical Services v. Russo presents the Supreme Court with the power to green-light extremely restrictive abortion laws.
Impeachment Will Never Be the Same Again
No longer will presidents live with the possibility of being removed from office. But that’s not to say Congress is powerless.
The U.S. Military Is Not Ready for a Constitutional Crisis
When I joined the Navy, I swore an oath to support and defend the Constitution. But not once, in all of my training, did I receive meaningful instruction on the document to which I had pledged my life.
The 53-State Solution
New states are the answer to America’s minority-rule problem.
The Shameful Final Grievance of the Declaration of Independence
The revolution wasn’t only an effort to establish independence from the British—it was also a push to preserve slavery and suppress Native American resistance.
The Founding Generation Showed Their Patriotism With Their Money
History suggests the value of a broader understanding of patriotism, one that goes beyond saluting-the-flag loyalty and battlefield bravery.
A Republic, If We Can Keep It
The government set up by James Madison and the other Founders requires a virtuous public and virtuous leaders—or the whole system will fail.
The Supreme Court May No Longer Have the Legitimacy to Resolve a Disputed Election
If the country’s nine justices wind up deciding the presidential race, things could get very ugly very quickly.
A Trial Without Witnesses Is No Trial at All
The process requires a critical evaluation of disputed facts or legal issues. That’s the whole point.
The Founders Set an Extremely High Bar for Impeachment
And that’s probably a good thing.
The Case Against Impeachment Has Nothing to Do With Impeachment
Republicans aren’t fighting to keep Trump in office—they’re fighting to preserve white-minority power.
Montana’s Original Sin
The state may have to revive a now-defunct school-scholarship program to make amends for supposed anti-Catholic sentiment at its founding.
Stop the Impeachment-Polling Madness
A decision to remove the president from office should not turn on public opinion.
Due-Process Rights Don’t Apply in an Impeachment Trial
Depriving a president of power does not require the same protective measures as when the state deprives a private citizen of life, liberty, or property.
Trump’s Defense Against Subpoenas Makes No Legal Sense
Like so many contentions of the president’s legal team, this is malarkey thinly draped with plausible-sounding distortions of facts, rules, court opinions, and the Constitution itself.
This Is a Trial of the Constitution Itself
To condone the president’s behavior is to shift power further into the executive and break the protections the Framers created.
The Troubling Ideals at the Heart of Abortion Rights
Equality premised on the power to end life is not true equality at all.
Abuse of Power Is a Dangerous Standard for Democrats to Play With
Republicans are surely learning a lesson: An impeachable offense is what you say it is.
An Impeachment Trial Without Witnesses Would Be Unconstitutional
And a resulting acquittal verdict would present Americans with something far worse than a constitutional crisis.
The Necessity of the Indian Child Welfare Act
A case now before the Fifth Circuit threatens to upend the laws that enable Native self-governance.
Guns Are No Mere Symbol
Protesters gathered at the Virginia state capitol on Monday to exercise their First Amendment rights, but they did so in a way that took away the First Amendment rights of others.
This Is Not the Senate the Framers Imagined
The Constitution originally provided for the selection of senators by state legislatures, but the Seventeenth Amendment changed that, and with it, the Senate itself.
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The Disintegration of the American Presidency
The president’s job is to oversee the whole of the executive branch, but under Trump the inverse is happening.
The Person Who Changes the Constitution
One civil servant will determine whether the ERA gets added to America’s founding document—the question is which authority he’ll turn to for guidance.
Bill Barr Doesn’t Get to Decide What’s in the Constitution
Somebody has to determine whether the ERA is valid or not, and without quite saying so, the Department of Justice is claiming that person is none other than Attorney General Bill Barr.
Prohibition Was a Failed Experiment in Moral Governance
A repealed amendment and generations of Supreme Court rulings have left the constitutional regulation of private behavior in the past. Will it stay there?
How to—Carefully—Surmount the Electoral College
There is a plan that can get the country closer to having a national popular election for president within the current constitutional framework, and without the need for a constitutional amendment.
The Court Case That Could Finally Take Down Antiquated Anti-Catholic Laws
Thirty-seven states still have Blaine Amendments on the books. The Supreme Court now has a chance to get rid of them for good.
How to Stop a War
Congress has a number of tools it can—and should—wield to rein in the president.
Law in War Isn’t as Irrelevant as People Fear
But it still should matter more than it does.
The Soleimani Strike Defied the U.S. Constitution
If Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own—anywhere, anytime, for any reason.
America Is Now the Divided Republic the Framers Feared
John Adams worried that “a division of the republic into two great parties … is to be dreaded as the great political evil.” And that’s exactly what has come to pass.
The Legal Questions Still Unanswered by Trump’s Impeachment
What exactly is abuse of power? And, for that matter, what is “obstruction of Congress”?
How Trump Is Warping the Military’s Place in the Constitutional Order
The country’s armed services can be an important check against lawlessness in the civilian executive. But correcting bad presidential policy is a job the Constitution leaves to Congress.
America’s Most Under-Appreciated Right
Groups of citizens regularly exercise the right to assemble, but too often American political and cultural leaders ignore it.
How TV Taught America Bad Constitutional Law
The Twenty-Fifth Amendment was never meant to be used to remove a terrible—albeit alert—president from office. But that’s not what the country has learned from Hollywood.
Madison’s Notes Don’t Mean What Everyone Says They Mean
The Founding Father’s account of the Constitutional Convention includes a famous conversation about causes for impeachment. But the relevant portion of his notes isn’t what it seems.
Why Republicans Are Refusing to Testify
Dishonesty and disinformation have become regular features of America’s national discourse, but under oath, truth still matters.
The Democrats Should Transmit the Articles of Impeachment to the Senate Without Delay
There are four main reasons this gambit should be abandoned.
John Roberts’s Surprisingly Straightforward Task Ahead
The chief justice’s role in the impeachment trial is a limited one, and he should be able to manage it easily without putting his or the Court’s legitimacy at risk.
A Stunning Vote Reversal in a Controversial First Amendment Case
A Fifth Circuit panel judge has changed his mind about DeRay Mckesson’s liability for violence at a Baton Rouge protest, but Americans’ right to protest is still under assault.
The Senate Impeachment Trial Could Use a Little Secrecy
Closed-door proceedings may be just what the country needs.
How to Conduct a Trial in the Senate
The Constitution does not provide procedural guidelines for how an impeachment trial is to be conducted—so the senators of 1868 had to figure it out as they went.
Don’t Let the First Amendment Forget DeRay Mckesson
An activist is on trial for being an activist, and the Supreme Court needs to protect anti-police protesters.
Democrats Have Failed to Prove Their Case Against Trump
Republicans are still waiting for a convincing case that the president was acting to advance his own personal interests.
Even Impeachment Has to Follow the Rules
The process may be political, but it also must conform to certain legal norms.
What the Democrats Left Out
Instead of settling on charges that relate to statutory crimes, with clear, concrete criteria, the Democrats have instead released two articles of impeachment in which the misconduct exists largely in the eye of the beholder.
The Age of the ‘Dead Parrot’ Supreme Court Case
Conservative activists keep asking the Court to hear cases that are already irrelevant—and, worryingly, the Court keeps saying yes.
The Most Dangerous Form of Bribery
Election corruption can’t be solved by corrupt elections, so the Founders devised a special solution: impeachment.
The President Can Do Whatever He Wants, Which Is Why He Can’t
The Founders gave the executive branch immense authority—but also counted on the people to hold their leaders in check.
How to Revive Madison’s Constitution
The American experiment requires virtuous leaders who place the public good over their own personal or partisan interests.
The Obscure—But Crucial—Rules the Trump Administration Has Sought to Corrupt
I was part of a team that carefully developed a rule-making process in compliance with both the Constitution and Congress’s laws. Can the same be said now?
I Know What It’s Like to Carry Out Executions
The experience of participating in the state-sanctioned killing of another human being has shaped me forever—and is why I believe this country should not pursue federal capital punishment.
The Weaponization of Impeachment
America’s political leaders like to talk a big game about proper constitutional conduct and high-minded principles, but the history of impeachment reveals that partisanship is a more powerful motivator.
The Guns Case Is About Much More Than Guns
By hearing this case about the Second Amendment, the Supreme Court is declaring itself the only appropriate forum for remedying constitutional violations.
Freedom Is Meaningless Under Insurmountable Debt
Advocates are arguing that the Thirteenth Amendment prohibits usurious loans.
Five Common Misconceptions About the Electoral College
Defenders of the Electoral College argue that it was created to combat majority tyranny and support federalism, and that it continues to serve those purposes. This stance depends on a profound misunderstanding of the history of the institution.
Foreign Policy Isn't Just Up To Trump
The president’s defenders argue that U.S. foreign policy is whatever he says it is. Trouble is, that’s not what the Constitution says.
Bribery Is Right There in the Constitution
And “attempted” bribery, even if unsuccessful, is still bribery all the same.
The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020
A consistent reading of the Constitution suggests that the current process of succession is constitutional—and that barring Trump from running again would not be.
How Conservatives Turned the ‘Color-Blind Constitution’ Against Racial Progress
Progressives used to argue that the Constitution doesn’t see race. Now conservatives have weaponized that same idea.
The Electoral College’s Racist Origins
More than two centuries after it was designed to empower southern white voters, the system continues to do just that.
How to Rein In an All-Too-Powerful Supreme Court
Congress should empower itself to more easily overturn Supreme Court decisions.
Executive Privilege Should Have No Power When It Comes to an Impeachment
The same rules don’t apply now that the House has begun a formal impeachment inquiry.
There’s Never Going to Be a Clear Standard for Impeachable Offenses
And that means it’s Congress’s job to set boundaries around presidential power.
The Founders Would Have Called Out Trump for Bribery
There’s no need to debate “high crimes and misdemeanors.” Bribery is enough for removal.
The Next 12 Months Will Decide the Future of the American Experiment
The American republic has lasted for more than two tumultuous centuries. But can it survive Donald Trump?
The Fragility of Immigrants’ Constitutional Protections
Recent cases have claimed that our founding document doesn’t defend noncitizens—even on American soil.
The American Bar Association Broke Its Own Rules
The organization has proved it can’t be trusted to fairly review nominees.
How a Populist Destroys America
Constitutional limits don’t mean anything if they’re not enforced.
The Impeachment Inquiry Is Fully Legitimate
In their efforts to trash the Democrats’ investigation, the president and his defenders are trashing the Constitution along with it.
Impeachment Wasn’t Always This Fair
For more than half of the country’s history, potential impeachment defendants had wildly different rights from the ones they have today.
A Constitutional Case for Gun Control
History and textual analysis aren't the only factors that matter. Our lives do, too.
The President’s Lawyers Are Making a Dangerous Argument for Presidential Immunity
But it’s different from the argument everyone thinks they’re making.
The Overlooked Conservative Tradition That Embraces an Executive Like Donald Trump
Trump draws fervent support from conservatives who believe the president is willing to restore the country to its moral and constitutional foundations.
Baseball Is a Civics Education
Baseball is much more than a sport—it’s a wonderful example of a functioning legal system.
The Common Misconception About ‘High Crimes and Misdemeanors’
The constitutional standard for impeachment is different from what’s at play in a regular criminal trial.
How Bad Constitutional Law Leads to Bad Economic Regulations
Ever since the New Deal, Congress has given the executive far too sweeping a mandate to interfere with huge sectors of the market.
Trump’s Defiance Is Destroying Congress’s Power
Congress and the White House have a tense relationship, and future administrations might well choose to build on rather than repudiate the Trump example of how to respond to a hostile Congress.
The Fragility of American Citizenship
Some people are learning that their birth or naturalization certificates aren’t enough to prove citizenship—a problem that the Fourteenth Amendment should ideally prevent.
How the Court Could Limit Abortion Rights Without Overturning Roe
No matter which path the court takes, the destination will likely be the same—the end of access to safe, legal abortion for many women.
Does the Constitution Guarantee a Right to an Insanity Defense?
When the Court opens its October 2019 term, it will face a pressing criminal-justice question: Can states abolish the insanity defense?
Immigration Law Defies the American Constitution
Immigration restrictions have been held to a far lower constitutional standard compared with almost any other exercise of government power.
The Constitution Is the Crisis
The system is rigged, and it’s the Constitution that’s doing the rigging.
The Need for Congressional Oversight Goes Far Beyond Impeachment
Congress needs the executive branch to comply with its requests, not only to monitor an unruly president, but for the more basic work of writing legislation.
The Fourth Battle for the Constitution
The latest struggle to define America's founding charter will define the country for generations to come.
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The Not-So-Supreme Court
The Founders never intended for the Court to be the final arbiter of what the Constitution means.
Federal Officials Should Be Accountable for Their Wrongdoing
And judges need to be the ones to make them pay.
Introducing ‘The Battle for the Constitution’
How will a system that is more than two centuries old meet the challenges of today?
Why the Founders Added ‘High Crimes and Misdemeanors’
In defining the scope of impeachment, they had in mind the alleged crimes of Warren Hastings.