Today, Department of Homeland Security Secretary Janet Napolitano had one of the least-fun jobs in Washington: She had to testify at the House Judiciary Committee’s DHS oversight hearing. The Republican members of this particular committee—especially the chairman, immigration hardliner Lamar Smith—have found very little to like about the White House’s immigration policy, and, sure enough, the back-and-forth I watched today was less than cordial. But in one important respect, it was revealing. Consider Napolitano’s exchange with Republican Trey Gowdy of South Carolina.
Bork-Backing, Activist-Hating Legal Expert: Obamacare Is OK
April 16, 2012
If you haven't already, please read what Henry Paul Monaghan has to say about the lawsuits challenging the Affordable Care Act. Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia.
March 14, 2012
There are two Democrats running at the top of the ticket this year, and only one of them is President Barack Obama. When Joe Biden’s name first came up, in 2008, as a possible running mate, I told everyone I knew that it would never happen. When Obama did choose Biden, I braced myself for disaster. But Biden turned out to be the right guy for the job. People don’t appreciate what a surprising outcome this is. My reasoning back in 2008 was grounded in observable fact.
Cordray's Recess Appointment Sure Doesn't Look Constitutional To Me
January 04, 2012
[Correction, Jan. 6: An important premise of this blog post as originally written was incorrect. In the original version I stated that on the day before President Obama made his recess appointments there was a brief window when the Senate was technically in recess. I expressed bafflement that the president didn't take advantage of that window and instead chose to make his recess appointments later, when the Senate was technically in session. But there was no window; the changeover from one Senate session to the next was rigged in such a way that the Senate was continuously in session.
Biden Was Right: Fewer Cops Mean More Rapes
November 14, 2011
When visiting Flint, Michigan to promote President Obama’s American Jobs Act in October, Vice President Joe Biden touted the jobs bill—specifically, the portion that would give local governments funds to retain police officers—as only he could: “In 2008, when Flint had 265 sworn officers on their police force, there were 35 murders and 91 rapes in this city.
September 14, 2011
For the past generation, if you wanted to understand the legal philosophy of the leading Republican presidential contenders, the best person to look to was Antonin Scalia. And, on the surface, that would appear to be true again this year. After all, the current Republican front-runner, Rick Perry, has plenty in common with Scalia—namely, a professed aversion to judges who legislate from the bench or broadly interpret the Constitution. But, once you read Perry’s manifesto, Fed Up!
June 09, 2011
On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester’s looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study. Obama’s call was purely extracurricular: He wanted to discuss Tribe’s academic writings.
March 17, 2011
The day that President Obama’s Affordable Care Act was signed, March 23, 2010, was also the day that the first challenges to the law were filed in federal court. Back then, the notion that health care reform could be overturned seemed remote. For one thing, it would require the Supreme Court to abandon decades of precedent. But nearly as big an obstacle, it seemed, was that the filer of the first suit to move forward was Kenneth T.
Walking the Plank
February 18, 2011
Last May, the novelist Scott Turow published yet another courtroom thriller—Innocent, a sequel to his hugely popular 1987 debut Presumed Innocent. “I was lucky enough that it landed on the best-seller list,” he quips, as if there were ever any doubt. But the celebration didn’t last. Turow’s friends soon alerted him to the fact that knock-off e-versions of his novel were being offered at steep discounts on shady websites all over the Internet.
Charles Fried: The Individual Mandate Is A "No-Brainer"
February 02, 2011
Are there any conservative legal scholars out there who dislike health care reform on the merits but still think the individual mandate is perfectly constitutional? There's Harvard Law Professor Charles Fried, for one. Earlier today, at a Senate Judiciary Committee hearing on the constitutionality of the health care bill, Ronald Reagan's old solicitor general called the soundness of the mandate a "no-brainer." Fried opened his testimony by burnishing his conservative bona fides: "I come here not as a partisan for this act. I think there are lots of problems with it.