Presidential authority as the commander in chief of the armed forces, under Article II of the US Constitution, is real and important, but it surely isn't all that President Donald Trump needs it to be for this war to be even remotely lawful. To review six familiar points: (1) The US Constitutional reserves to Congress exclusively the right to "declare" war; (2) Probably because the framers considered the point too obvious to require stating, there is no specific statement that undeclared wars are illegal wars; (3) The courts have refused to make that inference leaving a gap in the whole notion of the checking of war powers, but (4) Congress, overriding President Nixon's veto, filled that gap with the War Powers Act of 1973, and (5) if Congress does not approve President Trump's action, then under the War Powers Act, the President will have to end hostilities within 60 days of starting them -- which would be by the end of April, but (6) nobody expects President T...
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Intriguing post on the Legal History Blog argues that serious historians should stop using the phrase "the founders". This is how one uses the phrase in a sentence: It is not clear whether the founders approved of a broad reader of the commerce clause when they wrote it. The problem with such a sentence is that it suggests a sort of chicken-entrails reading of the constitution that "the founders" wrote. What they thought of the commerce clause depends on which one or which cluster you want to discuss. The clusters you might want to understand overlap and/or contrast in confusing ways, and using the phrase "the founders" as if it is itself a coherent cluster of individuals living and working in the US in the late 18th century adds nothing but confusion. In that particular case, we could also have used the phrase "the framers". But part of the problem is that, complicated as "the framers" itself is as a concept, "the founders...
I'm writing this post well ahead of its appearance -- I'm writing on the evening of August 29, soon after the US Federal Circuit has upheld a decision in May by the Court of International Trade that the tariffs imposed by President Trump's executive orders in and since what the administration called "Liberation Day" (April 2), are without statutory mandates and so are in violation of the constitution's requirement that Congress determine taxes. Full text of decision is freely available here: https://www.cafc.uscourts.gov/opinions-orders/25-1812.OPINION.8-29-2025_2566151.pdf The matter was heard en banc -- that is, the whole of the "bank" of the circuit, rather than the usual three-judge panel. The whole bank broke down 7 to 4. I of course applaud the result. Trump has long been "liberated" from any sense of economic reality or constitutional obligation but we ought to resist when he seeks to "liberate" the rest of us. I ha...
An astonishing display of ignorance by a US cabinet member played out in a hearing room on Capitol Hill in Washington on May 20. The ignoramus in question was Kristi Noem, Secretary of Homeland Security, testifying before the Senate Committee on ... homeland security. Sen. Maggie Hassan of New Hampshire asked Noem what the phrase "habeas corpus" means. Digression here. As a matter of simple translation, that Latin phrase means in English "you have the body". The phrase is significant in Anglo-American jurisprudence because we are to think of it as directed to a warden or jailor, "You have the body of John Doe in your custody, now you are required to come to court and explain why you are holding that body and whether you should be allowed to continue to do so." In other words, "habeas corpus" is the name for a venerable proceeding that limits unlawful detention by requiring such public explanations. Digression complete. Secretary Noem...
Often, in recent years, we have used this third column for the discussion of what I think of as "structural" constitutional issues, leaving for the fourth column the more rights based constitutional issues. I won't make that distinction this time. There was really only one structural case worth discussing, in my own unappealable opinion. There was the tribal sovereignty issue of US v. Cooley . After that I will turn to rights based matters that come from amendments other than my favorite, other than the first. Tribal Sovereignty Tribes have been doing rather well in the Supreme Court recently, as a group of sovereignty-venerating Justices treat the notion of their sovereignty more seriously than it has sometimes been taken. McGirt v. Oklahoma is the first instance of this to come to mind. This year brought another tribal win: Cooley . The court said that police officers for a tribe have the power to search and to temporarily detain non-Indians on public rights-of-way ...
This is the third part in our series of blog posts about the latest term of the Supreme Court. We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it? The Appointments Clause I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the Un...
From a discussion of the Garza case recently argued before SCOTUS, I see this passage: http://www.scotusblog.com/2018/10/argument-preview-can-a-criminal-defense-lawyer-refuse-to-file-an-appeal-from-a-guilty-plea-because-of-an-appeal-waiver/ "In support of its underlying objective of promoting the broad enforceability of appeal waivers, the state strongly implies that this case is governed by a simple syllogism. Ineffective assistance of counsel presumes the existence of a right to counsel. The right to counsel has to be attached to some underlying procedural right, such as the right to trial or the right to appeal. Here, however, Garza waived his right to appeal. Thus, his attorney could not possibly have rendered ineffective assistance with respect to any appeal." I don't see the syllogism in that passage, though there is clearly a claim that a "simple syllogism" is involved. The syllogism that the author has in mind might be a modus ponens , thu...
If you have any sense of the recent history of the US presidency, the above sentence, applied TO that institution, will seem insane. It appears to seem sane, though, to William G. Howell and Terry M. Moe, authors of RELIC, a new book about the presidency and related constitutional issues. Excessive suspicion of executive power is the late 18th century "relic" that they would like to excise from the US Constitution by amendment, on behalf of "effective government." I haven't read the book, and am relying here on a review in the September issue of THE FEDERAL LAWYER. Unless the reviewer, Louis Fisher, is doing the authors an injustice, though, Howell and Moe seem headed down a dangerous road. Whether the next President is named Clinton or Trump, my own response to the suggestion at the top of this blog post is, "hell no!"