Congress

Congress has a constitutional duty to perform oversight, protect its prerogatives, thoroughly vet nominees, and carry out the legislative process with respect for the will of the American people.

Update | The Week of November 27, 2017

12/4/17  //  Daily Update

The Senate Judiciary Committee urged the DOJ to expand its oversight of gambling. A bipartisan Cyber Diplomacy Act is a legislative effort to the State Department's "redesign."

Jeffrey Stein

Columbia Law School

Updates | The Week of November 20, 2017

11/26/17  //  Daily Update

Despite concerning allegations, President Trump maintains support for Roy Moore in Alabama's senate race.

Update | Week of October 30, 2017

11/6/17  //  Daily Update

Legislative proposals to protect the Mueller investigation against political interference by the White House appear to have lost momentum. The Senate is poised to confirm several judicial nominees.

Zachary Piaker

Columbia Law School

Updates | The Week of October 23, 2017

10/31/17  //  Daily Update

Senator Jeff Flake announced his retirement from the Senate in a speech sharply criticizing the White House.

Updates | The Week of October 16

10/21/17  //  Daily Update

The Trump Administration may inspire greater congressional oversight of the federal bureaucracy. President Trump has had more judicial nominees confirmed than President Obama had at this point in his first term; although President Trump has nominated prolific bloggers to the bench, Republican Senators have stuck by his selections.

Updates | The Week of October 2, 2017

10/8/17  //  Daily Update

Republican senators showed an increasing willingness to break with President Trump in recent weeks.

Justice Kennedy, The First Amendment, and Partisan Gerrymandering

10/4/17  //  In-Depth Analysis

By David Gans: Will Justice Kennedy carve out a partisan redistricting exception from foundational First Amendment principles?

Take Care

Versus Trump: The FOIA Spectacular!

9/21/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Versus Trump: Keeping the DREAM Alive

9/14/17  //  Commentary

On this week’s episode of Versus Trump, we discuss a major new lawsuit that challenges President Trump's announced revocation of the DACA immigration program. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Congress’s Constitution, Redux

8/28/17  //  In-Depth Analysis

Here I respond to insightful comments on Congress's Constitution.

Josh Chafetz

Cornell Law School

Symposium on Congress's Constitution

8/25/17  //  Latest Developments

Take Care is pleased to host a symposium on Congress's Constitution—an important new book by Josh Chafetz

Take Care

Attacking North Korea Would Be Illegal

8/10/17  //  Commentary

President Trump threatened this week to launch "fire and fury like the world has never seen" against North Korea. That is not something the Constitution lets him do without Congress.

Zachary Price

U.C. Hastings College of the Law

The CBO-CBA Analogy, or What Wonks Could Learn from Each Other

3/17/17  //  In-Depth Analysis

Republican criticism of CBO's report on the American Health Care Act echoes long-standing criticism of cost-benefit analysis at OIRA. There are lessons to be learned here.

Jennifer Nou

University of Chicago Law School

It Was Legal for the President to Fire Comey. That’s the Problem.

5/10/17  //  Commentary

It’s already too late in the day to trust the executive branch to police itself. That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. At this point, only Congress can credibly investigate the President.

Nikolas Bowie

Harvard Law School

NFIB v. Sebelius As Anti-Canon (a.k.a. This Administration’s Galling Constitutional Hypocrisy)

3/23/17  //  In-Depth Analysis

The Trump administration is engaged in stunning constitutional hypocrisy. Measured against conservatives' professed commitment to "liberty" and "freedom," there is no serious distinction to be drawn between Obamacare and Trump's American Health Care Act.

Leah Litman

U.C. Irvine School of Law

The Nuclear Option and Democratic Deterioration

4/10/17  //  Commentary

The Gorsuch nomination battle illustrates and exacerbates the dynamics of democratic deterioration. Reversing these trends will require elected officials to act with courage. It will also require significant structural changes to our political system.

Daniel P. Tokaji

Ohio State, Moritz College of Law

Congress’s Personnel Power

8/22/17  //  In-Depth Analysis

Congress should engender a robust administrative separation of powers, ensuring that a forceful bureaucracy (and an engaged public) can advance congressional priorities and check those of the President

Jon D. Michaels

UCLA School of Law

The Blind Side In Trump’s War On The Administrative State

4/17/17  //  Commentary

Neomi Rao’s nomination to serve as Administrator of the Office of Information and Regulatory Affairs (OIRA) is part of Trump and Bannon’s war on the administrative state.

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

It’s Time To Pay Attention To Whom Trump Is Putting in Charge of Federal Agencies—And How He’s Doing It

3/17/17  //  Commentary

President Trump isn't nominating people to many positions requiring Senate confirmation. Instead, he's relying on employees who haven't been vetted through the advice & consent process. That's not okay.

Brianne J. Gorod

Constitutional Accountability Center

How Donald Trump Will Fire Jeff Sessions

7/26/17  //  Commentary

Donald Trump’s Firing Of Jim Comey Provides A Template For How He Will Fire Jeff Sessions

Leah Litman

U.C. Irvine School of Law

Waivers of Executive Privilege Can Be Informal

6/6/17  //  Commentary

Even Had He Wanted to Assert Executive Privilege, Trump May Have Waived Any Such Claim Over His Conversations With Jim Comey By Blabbing and Tweeting About Them

Leah Litman

U.C. Irvine School of Law

Laurence H. Tribe

Harvard Law School

Due Process of Lawmaking and the Obamacare Repeal

7/25/17  //  Commentary

By Abbe Gluck: This is repeal for repeal’s sake. It’s not about policy. It’s all about politics. And of course, it’s also about human lives.

Take Care

The Russia Sanctions Bill Is Unconstitutional – and Unnecessarily So

7/26/17  //  Commentary

The bill to impose sanctions on Russia for meddling in the 2016 election is unconstitutional. And unnecessarily so.

Daniel Hemel

University of Chicago Law School

The Comey Firing in (Comparative) Context

5/11/17  //  In-Depth Analysis

President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?

Aziz Huq

University of Chicago Law School

The Comey Hearing: Lots of Big News

6/8/17  //  Quick Reactions

No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health

Jed Shugerman

Fordham Law School

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part II)

5/23/17  //  In-Depth Analysis

More reasons why the D.C. Circuit should not rely on the CFPB’s purported novelty to suggest the CFPB is unconstitutional

Leah Litman

U.C. Irvine School of Law

The Self-Pardon Question: What Comes Next?

7/27/17  //  Commentary

By Jeffrey Crouch: Might Congress amend the Constitution to take the self-pardon question off the table permanently?

Take Care

The Constitution of Talk

8/25/17  //  In-Depth Analysis

There needs to be a separation of microphones just as much as a separation of powers, and Congress does not understand the microphone that 2017 requires.

David Fontana

George Washington University Law School

Executive Privilege(s) and the Testimony of James Comey

6/9/17  //  Commentary

The various references to executive privilege and unauthorized disclosures must be analyzed more closely.

Peter M. Shane

Ohio State, Moritz College of Law

Congressional Standing Is Not an All-or-Nothing Proposition

6/19/17  //  Commentary

It is perfectly consistent to think the House lacks standing in House v. Price, but that members of Congress have standing to sue for Foreign Emoluments Clause violations.

Brianne J. Gorod

Constitutional Accountability Center

Information Wars: The Final Frontier

7/25/17  //  Commentary

Elements of the Republican Party have proposed eliminating the Budget Analysis Division of the Congressional Budget Office.

Leah Litman

U.C. Irvine School of Law

Why Trump’s Firing of Comey is Terrifying

5/10/17  //  Commentary

Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.

Zachary Price

U.C. Hastings College of the Law

The Fire Alarm Function of Office-Holding

6/19/17  //  Commentary

Trumps can fire Mueller only by issuing a directive to Acting AG Rod Rosenstein. Here's why -- and why it really matters.

Zachary Price

U.C. Hastings College of the Law

Trump and North Korea: Where's Congress?

8/13/17  //  Commentary

Guest poster Eric Segall argues that Congress must act now to ensure that the President does not unilaterally commit an act of war without Congressional consent.

Take Care

Encouraging Legislative Expertise-Forcing

8/24/17  //  In-Depth Analysis

A promising way for Congress to check the Executive, as well as to enhance its own efficacy and public standing, is by promoting expertise in the executive branch

Bijal Shah

Sandra Day O’Connor College of Law

Ten Questions for a New FBI Director

6/6/17  //  Commentary

By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.

Take Care

The Faces of Congressional Power

8/25/17  //  In-Depth Analysis

By Mark Graber: Congress has considerable tools to influence public policy. How effectively Congress may use those tools depends in part on the skill with which they are exercised, but also on more durable features of the times in which they are exercised.

Take Care

Goodbye, U.S. Senate?

4/7/17  //  Quick Reactions

Abbe Gluck explains that the Republicans’ win-at-all-costs strategy will almost certainly lead next to the end of the filibuster for legislation, not just nominations, which would fundamentally change the culture of the Senate and be a tragic loss for our democracy.

Take Care

The Audacity of The President’s "Hope"

6/13/17  //  In-Depth Analysis

Senator Risch asked Jim Comey whether a person has been charged for obstruction of justice or any other criminal offense, where they said or thought they hoped for an outcome. We hope he finds our research instructive.

Daniel Epps

Washington University Law School

Leah Litman

U.C. Irvine School of Law

A Reply to Larry Solum

5/25/17  //  Commentary

A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.

Leah Litman

U.C. Irvine School of Law

The Constitutional Challenge To The CFPB

5/19/17  //  Commentary

The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.

Leah Litman

U.C. Irvine School of Law

The Functions and Potential (but Fixable) Flaws of the “Protect Mueller” Bills

8/7/17  //  In-Depth Analysis

The bills to protect the special counsel from removal have some rough spots that can and should be worked out.

Marty Lederman

Georgetown Law

Real Reasons To Worry About Filibuster Repeal

4/10/17  //  Commentary

The filibuster repeal itself is ultimately far less important than some deeper trends it reflects concerning partisanship, institutional norms, and the separation of powers in our constitutional order.

Zachary Price

U.C. Hastings College of the Law

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I)

5/22/17  //  In-Depth Analysis

This two-part series explains why the CFPB’s purportedly novel structure is not a sign that the CFPB’s structure is unconstitutional.

Leah Litman

U.C. Irvine School of Law

Chafetz and the Separation of Powers

8/23/17  //  In-Depth Analysis

By Victoria Nourse: It is one of the great paradoxes of American life that Americans love democracy but hate their most democratic institution, the Congress—that is, until they need Congress to fight a rogue President

Take Care

Our (Ongoing) Coverage of the Comey Firing

5/11/17  //  Uncategorized

An organized guide to all Take Care coverage and analysis of President Trump's abrupt termination of FBI Director Comey

Take Care

Confusion Over The Essential Health Benefits

3/24/17  //  Quick Reactions

Last night, House Republicans released the text of the final manager’s amendment to the American Health Care Act. If it becomes law, the individual insurance market will likely collapse nationwide in 2018.

Nick Bagley

University of Michigan Law School

Trump's Mistaken Signing Statement on Marijuana Enforcement

5/16/17  //  Commentary

Trump suggested in a recent signing statement that he could disregard an appropriations restriction on federal marijuana enforcement. But Trump is mistaken.

Zachary Price

U.C. Hastings College of the Law

The Acosta Hearing & the “Deconstruction” of Federal Agencies

3/24/17  //  Quick Reactions

Hearings on President Trump's nominee for Secretary of Labor revealed little about the future of labor policy. But the hearings made crystal clear that Trump's executive orders and proposed budget threaten even popular and effective government programs.

Charlotte Garden

Seattle University School of Law

Versus Trump: "What About Congress? + Steven Wu"

6/8/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Seven Reactions to Today’s Coats/Rogers Testimony

6/7/17  //  Quick Reactions

Jed Shugerman analyzes today's live testimony before the Senate Intelligence Committee.

Jed Shugerman

Fordham Law School

On Presumptions Of Regularity, And Incidents Of Irregularity

5/11/17  //  Commentary

The Presumption of Regularity, Like All Presumptions, Is Rebuttable, Not Conclusive Evidence

Leah Litman

U.C. Irvine School of Law

Congress's Constitution

8/21/17  //  In-Depth Analysis

An introduction to the Take Care symposium on my new book, Congress's Constitution

Josh Chafetz

Cornell Law School

Congress’s Rhetoric

8/23/17  //  In-Depth Analysis

By Kate Shaw: Congress must find new opportunities for successful engagement with the public, by both individual members and the body as a whole

Take Care

Why Did Trump Believe the Syria Strike Was Lawful?

4/10/17  //  Commentary

When the President unilaterally decides that America will start killing people in foreign countries, the least we can expect is a sound justification for that action under domestic and international law. Yet Trump has yet to offer one.

Joshua Matz

Publisher

Law, Politics, and Interbranch Conflict

8/24/17  //  In-Depth Analysis

By demonstrating the dangers of vesting so much power in one individual, will Trump bring about a revitalization of Congress and a corresponding diminution of the Presidency?

Zachary Price

U.C. Hastings College of the Law

How Might Congress Reinforce NATO?

5/30/17  //  Commentary

President Trump's overseas trip has cast doubt on longstanding consensus features of U.S. foreign policy, particularly our commitment to NATO. Here are some ways Congress might respond.

Zachary Price

U.C. Hastings College of the Law

The Hypocrisy of the 'Skinny' Repeal

7/27/17  //  Commentary

The Republicans Themselves Said It Would be Disastrous

Abbe Gluck

Yale Law School

Yesterday's Other Story: Republican Knowledge of Russian Interference?

5/18/17  //  Commentary

Yesterday, a Washington Post story indicated that Republican House leadership may have known that Russia had hacked the DNC and was delivering the contents of the hack to the Trump campaign.

Leah Litman

U.C. Irvine School of Law

Congress’s Vital Power of the Purse

4/5/17  //  Commentary

The upcoming budget fights will be ugly and brutal, but they implicate the most important practical means of constraining this president (or any other)—Congress’s power over appropriations. But the nature and limits of that power remain shockingly undefined.

Zachary Price

U.C. Hastings College of the Law

Versus Trump Podcast: Prosecuting Trump FAQ + James Williams

5/17/17  //  Commentary

On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Congress’s Constitution, the President’s Politics?

8/22/17  //  In-Depth Analysis

By Julia Azari: Is Congress doomed to react to Trump, and to wallow in the political discourse he has created like a toddler in a soiled diaper? Or can members of Congress create their own counter-narratives about the meaning and stakes of policy and process?

Take Care

Youngstown Zone Zero

3/16/17  //  Commentary

Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

An Open Letter to Sen. Ben Sasse

6/21/17  //  Latest Developments

I recently wrote an open letter to Senator Ben Sasse regarding the American Health Care Act. Here's the conclusion.

Richard Primus

University of Michigan Law School

Republican (and Democratic) Hypocrisy on Faithful Execution

3/17/17  //  Commentary

President Obama pushed the limits of enforcement discretion. Trump may be worse. Will anyone check him if he is?

Zachary Price

U.C. Hastings College of the Law

Updates | The Week of August 14, 2017

8/20/17  //  Daily Update

The relationship between the President and Congress has grown even more strained in the wake of the healthcare repeal failure.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

The Senate Intelligence Committee will not investigate whether President Trump attempted to obstruct justice, leaving the inquiry to special counsel Robert Mueller. Questions remain about the legal basis for Attorney General Jeff Sessions’s refusal to answer questions before the Senate Intelligence Committee.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Despite the Republican majority, Democrats in Congress have important tools to oppose President Trump's policies.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

The Senate passed a spending bill to avert government shutdown. Republican Senators criticized President Trump's rant against Senate rules.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

Rep. Adam Schiff (D-Calif.) writes that the NSA and U.S. Cyber commend should be split and the government released its annual FISA Court report.

Take Care

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

Congress continued its investigations of former National Security Advisor Michael Flynn. One Representative argued that Congress should block the administration’s proposed budget cuts to the State Department.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

Commentators continued to discuss the implications of the invocation of the "nuclear option" to confirm Judge Neil Gorsuch, President Trump's Supreme Court nominee.

Updates | The Week of July 31, 2017

8/6/17  //  Daily Update

The Senate confirmed several administration nominees, including Christopher Wray for FBI Director. Republican Senator Jeff Flake's new book publicly criticizes President Trump.

Updates | The Week of July 10, 2017

7/16/17  //  Daily Update

The Senate Judiciary Committee began hearings for Christopher Wray, President Trump's nominee for FBI Director, and passed along four other nominees.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Rep. Devin Nunes, Chairman of the House Intelligence Committee, disclosed that he made a visit to the White House to view intelligence files regarding President Trump's wiretapping claims. Commentators argued that this disclosure makes it hard for Republicans to claim impartiality as they investigate Russian interference.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

This week, a government shutdown loomed as President Trump proposed to condition funding for the increasingly-popular ACA on funding for the border wall.