Constitutional Law
Presidential Power to Terminate International Agreements
Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.”
Congressional Power over Office Creation
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and temporary appointments, as well as the employee/officer distinction.
The New Class Blindness
An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present day.
The Limits of Professional Speech
This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professional speech through NIFLA v. Becerra.
The Original Theory of Constitutionalism
The conflict between various versions of “originalism” and “living constitutionalism” has long defined the landscape of constitutional theory and practice. In this Review of Richard Tuck’s The Sleeping Sovereign, David Grewal and Jedediah Purdy adapt the sovereignty-government distinction at the heart of the theory of the modern democratic state.
Local Action, National Impact: Standing Up for Sanctuary Cities
Over the past year, cities have emerged as crucial sites of resistance. Using San Francisco and the sanctuary city litigation more broadly as a case study, this Essay argues that cities can and should take advantage of the Constitution’s federalism protections to resist federal intrusion onto local autonomy.
Natural Rights and the First Amendment
This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself.
Originalism Without Text
Originalism is not about the text. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. What originalism generally is about is our present constitutional law and its dependence on a crucial moment in the past.
Capital Jurors in an Era of Death Penalty Decline
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decade, support steadily declined in national and state polling. Today, the public appears fairly evenly split in its views on the death penalty. Still, voters in Nebraska and California recently rejected measures to end the death penalty, and in California voters instead adopted a measure intended to hasten post-conviction review of death penalty cases and executions, although the California Supreme Court has stayed that measure pending further review. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.
Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance
The Unitary Executive and the Scope of Executive Power
In the Justice Department’s Office of Legal Counsel (OLC) in the 1980s, “unitary” meant unitary, as in e pluribus unum. When Deputy Assistant Attorney General Samuel Alito and his colleagues in OLC used the phrase “unitary executive,” they used “unitary” to convey two kinds of oneness. The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him. In 2000, then-Judge Alito participated in a discussion of executive power, and noted his endorsement of the unitary executive theory that he had espoused while at OLC.
The Private Search Doctrine After Jones
In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.
Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom
The number of Americans who must obtain government permissionto work in their chosen vocation has been steadily rising. A recent White Housereport observed that “[o]ccupational licensing has grown rapidly over the past few decades” and has come to include manyharmless vocations such as interior design, hair braiding, and even floristry. Today, aboutone quarter of American workers must obtain a government-issued license to dotheir job, up from less than five percent in the 1950s.
Business Licensing and Constitutional Liberty
Claims that the Constitution prohibits business licensing requirements have proliferated in recent years. The U.S. Court of Appeals for the District of Columbia Circuit recently concluded that a District requirement that tour guides obtain business licenses violated the First Amendment. The Sixth Circuit likewise held that a licensing scheme for funeral directors violated due process and equal protection under the Fourteenth Amendment. These cases mark a sea change in the treatment of economic liberty claims both by the courts and in U.S. legal culture.
The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?
For decades, the Supreme Court has rejected arguments that the Fourteenth Amendment’s Due Process Clause protects a general right to liberty of contract worthy of more than cursory judicial attention. Instead, the Court, along with most state courts, has reviewed economic regulations that do not implicate the Bill of Rights under a very forgiving version of the rational basis test that leaves little room for successful challenges. Despite remonstrations from libertarian enthusiasts inside and outside of the academy, there is no realistic prospect that judicial protection of liberty of contract will be reasserted anytime soon.