To Save Obamacare, Repeal the Mandate
If congressional intent is the key to the Texas decision invalidating the Affordable Care Act, Congress can intervene. And the best way for it to do so is not to enter the litigation. It’s to legislate.
Versus Trump: Versus Whitaker, In-Depth
On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Versus Trump: Versus Whitaker (JH solo)
On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Versus Trump: N.Y. Versus Wilbur Ross
On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census. Listen now!
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
Versus Trump: Texas & Trump Versus The ACA
This week, Jason, Charlie, and Easha are back with a regular episode to discuss a stunning recent development in Texas v. United States, a case by Texas seeking to invalidate the Affordable Care Act (Obamacare). Last month, the Trump Administration not only agreed with Texas that the individual mandate is unconstitutional, but it also told the district court that the requirement to cover everyone with a pre-existing condition on the same terms as healthy folks should be struck down as well. Listen now!
Updates | The Week of January 15, 2018
While the President holds an obligation to ensure faithful execution of the laws, Congress holds sole authority to appropriate resources for that power’s exercise and is therefore not duty-bound to provide resources necessary for the executive branch’s fulfillment of its constitutional functions.
Update | The Week of November 27, 2017
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."
Update | Week of October 30, 2017
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.
Updates | The Week of October 16
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.
It Was Legal for the President to Fire Comey. That’s the Problem.
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.
The Nuclear Option and Democratic Deterioration
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.
Versus Trump: The FOIA Spectacular!
On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!
Congress’s Personnel Power
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
Versus Trump: Judges of Christmas Future
On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!
Donald Trump's New Intelligence Slush Fund
The continuing resolution that was signed by President Trump contains a provision that permits his intelligence agencies to spend billions of dollars on anything they want, without having to inform Congress about what they are doing. This seems like a bad idea.
The Comey Firing in (Comparative) Context
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?
Versus Trump: Keeping the DREAM Alive
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!
The Constitution of Talk
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.
Why Trump’s Firing of Comey is Terrifying
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.
Trump and North Korea: Where's Congress?
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.
Encouraging Legislative Expertise-Forcing
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
Ten Questions for a New FBI Director
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.
The Faces of Congressional Power
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.
Goodbye, U.S. Senate?
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.
The Audacity of The President’s "Hope"
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.
A Reply to Larry Solum
A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.
The Constitutional Challenge To The CFPB
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.
Versus Trump: Versus Mueller
After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel. Listen now!
Real Reasons To Worry About Filibuster Repeal
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.
Chafetz and the Separation of Powers
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
Confusion Over The Essential Health Benefits
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.
The Acosta Hearing & the “Deconstruction” of Federal Agencies
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.
Versus Trump: "What About Congress? + Steven Wu"
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!
Attacking North Korea Would Be Illegal
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.
An introduction to the Take Care symposium on my new book, Congress's Constitution
By Kate Shaw: Congress must find new opportunities for successful engagement with the public, by both individual members and the body as a whole
Versus Trump: To End a Presidency? (Interview with Joshua Matz)
On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment. Listen now!
Why Did Trump Believe the Syria Strike Was Lawful?
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.
Law, Politics, and Interbranch Conflict
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?
How Might Congress Reinforce NATO?
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.
Congress’s Vital Power of the Purse
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.
Versus Trump Podcast: Prosecuting Trump FAQ + James Williams
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.
Congress’s Constitution, the President’s Politics?
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?
Youngstown Zone Zero
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
Partisan Gerrymandering Returns to the Supreme Court
Partisan gerrymandering at its core is viewpoint discrimination pure and simple, and it cannot be squared with our Constitution’s promise that voters choose their representatives, not the other way around.
Updates | The Week of June 12, 2017
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 May 1, 2017
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
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.
Updates | The Week of March 20, 2017
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.
Updates | The Week of April 10, 2017
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
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
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
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
This week, a government shutdown loomed as President Trump proposed to condition funding for the increasingly-popular ACA on funding for the border wall.