Forum

The Insidious War Powers Status Quo

This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the …

Forum

War Powers Reform: A Skeptical View

Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reformists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.

Forum

Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court

Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably expl…

Forum

Foreword—The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy

This Essay argues that the 2017 Tax Act provides neither an effective nor stable solution to the nation’s economic and fiscal challenges.

Note

Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law

The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’…

Review

How Long Is History’s Shadow?

Josh Chafetz, in Congress’s Constitution, urges Congress to rehabilitate its underused but important nonlegislative powers. In this Book Review, Anita Krishnakumar argues that while reinvigorating these powers is a good idea in theory, Congress may not have the ability or inclination to do so. 

Note

Spending Money To Make Money: CBO Scoring of Secondary Effects

This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and p…

Forum

Dissent in the Senate

While dissent is often associated with the judiciary, Senators also dissent to vent frustration, vindicate legal principles, mobilize constituencies, and destabilize the status quo. Through three case studies, this Essay traces the role and purpose of dissent in the Senate, which enriches our broade…

Essay

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

122 Yale L.J. 940 (2013).

It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Note

The Majoritarian Filibuster

122 Yale L.J. 980 (2013).

The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying atte…

Comment

Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act

120 Yale L.J. 1263 (2011). 

Forum

If It Ain't Broke . . .

“The most important thing we do,” Justice Brandeis once remarked, Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government. Indeed, the cautious exercise of the cer…

Forum

Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?

I. Introduction: The Need for “Political” Analysis My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticat…

Article

The President and Immigration Law

119 Yale L.J. 458 (2009). 

The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has…

Article

Presidential Power over International Law: Restoring the Balance

119 Yale L.J. 140 (2009). 

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…

Forum

The Prospects for the Peaceful Co-Existence of Constitutional and International Law

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logi…

Article

Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

112 Yale L.J. 1943 (2003)

The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…