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.
Federalism and the Senate
Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate
The Travel Ban and Inter-Branch Conflict
The real problem is the Trump Administration itself. What feels like damage today is largely the echo of damage that already happened, rather than something new.
Two Thoughts on the Government's Motion to Dismiss in the CREW Emoluments Case
Here’s a brief note on two things that struck me on a quick read of the government’s motion to dismiss in CREW v. Trump, filed yesterday. The first is about Mississippi v. Johnson, which the government cites as limiting the power of courts to grant injunctions against the President. The second is about the government’s more general claim that the only proper relief for an emoluments violation is political rather than judicial.
The Muslim Ban: Answering Tough Questions About Motive
The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.
Motive Matters in Assessing the Travel Ban
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.