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Constitutional Law

Constitutional Law Prof Blog

News, analysis, and commentary on constitutional law issues in the courts, the administration, Congress, and the states; and commentary and analysis on constitutional law scholarship.
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith

Post Frequency: 3.1/day

Last Entry: November 04, 2020 at 10:04:25

Cass Sunstein Post in Obama Administration

Posted on January 11, 2009
As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs. The Chicago Tribune story continues: Sunstein brings a measure of star power to the post, as a leading...

The Sunday Reader: (Obama's OLC Pick) Johnsen on the Post-Bush Constitution

Posted on January 11, 2009
Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also...

Three Thoughts on Prosecution of Administration Officials

Posted on January 11, 2009
The NYT ran op-eds today opining on whether Bush administration officials should be prosecuted for authorizing certain acts in the war on terror. Charles Fried (Harvard) argues no; Dahlia Lithwick (Slate) argues yes; Jack Balkin (Yale and Balkinization) argues a...

Saturday Evening Review: Judicial Review, Marbury, and History

Posted on January 10, 2009
In THE ACTIVIST: John Marshall, Marbury v. Madison, and the Myth of Judicial Review, independent scholar and author Lawrence Goldstone provides a highly readable discussion. (You might recall Goldstone as the author of Dark Bargain: Slavery, Profits, and the Struggle...

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Proposition 8 - Two Panels at AALS

Posted on January 10, 2009
The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court, see previous posts here and here...

Fourth Circuit Rules Civil Commitment Law Unconstitutional

Posted on January 09, 2009
The Fourth Circuit yesterday ruled in U.S. v. Comstock that Congress lacked authority under the Commerce Clause to enact 18 USC sec. 4248, which authorizes the federal government to place in indefinite civil commitment "sexually dangerous" persons even after they've...

(Semi-)Live from AALS!!

Posted on January 09, 2009
This week we are in San Diego at the AALS Annual Meeting. Those of you that are here know that it is an awesome program! For those that are unable to attend, we are happy to summarize one of the...

Dept. of Justice OLC Memos Released

Posted on January 09, 2009
In the last month of so--and as recently as yesterday--DOJ released several OLC memos relating to significant questions in the war on terror. Check these out here. Wow. I bet they continue to trickle out up to the inauguration. And...

Supreme Court Review of Sarbanes-Oxley?

Posted on January 08, 2009
The Free Enterprise Fund filed a cert. petition this week seeking Supreme Court review of a D.C. Circuit decision upholding Title I of the Sarbanes-Oxley Act, which established the Public Company Accounting Oversight Board under the authority of the SEC...

Burris Blocked, Constitution Violated by Senate

Posted on January 06, 2009
The NYT just reported that the Senate, as expected, blocked Burris. Read here why I think this violates the Constitution (more on this particular act below); I've also posted here and here. According to the report, Burris found his way...

Does Habeas Extend to Bagram?

Posted on January 05, 2009
Lyle Denniston at SCOTUSblog reports that U.S. District Judge John Bates (D.D.C.) will consider whether habeas corpus extends to prisoners at Bagram Airfield in Afghanistan starting tomorrow. The cases--Wazir v. Rumsfeld, Maqalah v. Rumsfeld, Al Bakri v...

The Sunday Reader: Young on Motive Analysis in Constitutional Law

Posted on January 04, 2009
Professor Greg Young (U. Md.) recently posted Justifying Motive Analysis in Judicial Review on ssrn; it is also forthcoming in the William & Mary Bill of Rights Journal. The article is a thoughtful exploration of motive analysis in constitutional law...

Why the Senate Cannot Block Burris

Posted on January 04, 2009
The constitutional arguments have circulated (and recirculated) now since Governor Blagojevich appointed Roland Burris to fill President-Elect Obama's Illinois Senate seat. (I've posted here and here, with links to the best.) At the end of the day, the strongest constitutional...

Saturday Evening Review: Supreme Court's Original Jurisdiction

Posted on January 03, 2009
This week?s Saturday Evening Review is another ?classic? edition, taking a new look at some familiar legal scholarship. Or perhaps this scholarship is not so familiar? It treats Art. III � 2?s provision: In all Cases affecting Ambassadors, other public...

The United States Senate - continued, continued

Posted on January 03, 2009
The Huffington Post here, as well as other outlets, are reporting that Michael Bennet, 44, Denver's public schools superintendent, is the Colorado Gov's choice to fill a Senate vacancy that will be created by the promotion of Sen. Ken Salazar...

Liptak on Obama's Executive Authority Test

Posted on January 03, 2009
Adam Liptak reports in today's NYT that the new Obama administration will face an early test of executive authority to detain legal U.S. residents as enemy combatants and to hold them indefinitely without charge in Al-Marri v. Pucciarelli. I've posted...

More on the Senate's Power (or Not) to Block Burris

Posted on January 02, 2009
I previously posted here; read more analysis by Lyle Denniston at SCOTUSblog here, Sandy Levinson at Balkinization here, Akhil Amar and Josh Chavetz at Slate here, and Rick Hills at PrawfsBlawg here. Levinson's is the clearest and plainest reading of...

In Case You Missed it, Part III - Equal Protection Edition

Posted on January 02, 2009
In this final installment of ?In Case You Missed It . . . ,? we review some of the equal protection stories that might have flown below your radar. The debate over same sex adoptions continues in Florida. While my...

In Case You Missed It, Part II

Posted on January 01, 2009
In this installment of things you might have missed while celebrating the holidays or grading (okay, mostly grading), we focus on an important story from the executive branch. The last eight years have seen an unprecedented expansion of executive power...

Obama and the Judiciary

Posted on December 31, 2008
The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from...

Can the Senate Block Burris?

Posted on December 31, 2008
Illinois Gov. Rod Blagojevich's appointment of Ronald Burris to fill President-Elect Obama's Senate seat is by now a too familiar story. The NYT reports today what we also expected: Senate Democrats will seek to block the appointment. But can they...

Fair Share and ERISA Preemption

Posted on December 30, 2008
Rick Hills started an interesting discussion at PrawfsBlawg on ERISA preemption of state and local "fair share" laws. In general, these laws require employers to provide medical coverage for their employees, or to pay a tax (that goes into, e.g.,...

Phair on Constitutional Constraints on a Lame Duck President

Posted on December 29, 2008
Ryan Patrick Phair recently published a very thoughtful American Constitution Society Issue Brief titled The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period. The Brief explores constitutional limits on a lame duck president and...

In Case You Missed It . . .

Posted on December 29, 2008
Although the holidays technically aren't over yet, people are gradually easing back into the "work" mode. Well, my goal this week is to provide analysis of some stories that you might have overlooked while grading bluebooks, eating pumpkin pie, or...

The Sunday Reader: Sunstein on OSHA's Nondelegation Problem

Posted on December 28, 2008
Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question: Is OSHA Unconstitutional? The article appears in the most recent issue of the Va. Law Review; it's also posted...

South Africa Constitutional Court appointment

Posted on December 28, 2008
Edwin Cameron, has been appointed to the South Africa Constitutional Court. As South Africa's Sunday Times describes him in an article confirming his recommendation yesterday here: Judge Cameron, currently a Supreme Court of Appeals judge, is one of South Africa?s...

Saturday Evening Review: Oxford Handbook of Law and Politics

Posted on December 27, 2008
The Oxford Handbook of Law and Politics, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), is a 832 page tome described by the publishers as providing a comprehensive survey of the field...

Rossi on the Nondelegation Doctrine

Posted on December 26, 2008
Here's an excellent and concise (4-page) encyclopedia overview of the nondelegation doctrine by Jim Rossi (Fl. State) for the Encyclopedia of the Supreme Court of the United States. Take a look. SDS

Liptak on Bush v. Gore

Posted on December 23, 2008
Adam Liptak reports in today's New York Times on the staying power of Bush v. Gore in the lower courts. From the article: But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have...

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