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Articles & Commentary

March 24, 2017

In the days ahead, there will likely be many questions raised about this GSA decision, such as why it was made by the contracting officer with a long relationship with the Trump Organization (rather than by a higher level officer) and why benefits delayed don’t qualify as a “benefit” under the lease.  But there’s one very important question that no one should forget: does this decision, which directly benefits the President, violate the Domestic Emoluments Clause?

March 21, 2017

It's not difficult to imagine the various ways in which the federal government may end up paying Trump's businesses. In fact, it's already happening.

March 20, 2017

Supreme Court Justices are the final bulwark against unchecked power and violations of the Constitution. At this flashpoint in American history, the Senate — including Senators McCaskill and Blunt — must strictly measure Donald Trump and Neil Gorsuch against Hamilton’s and Madison’s founding ideals, as well as the hard-won rights protected by the text, history, and structure of the whole Constitution.

March 20, 2017

As we learned from the Bork nomination, there’s nothing politicized or inappropriate about such scrutiny; to the contrary, a failure by the Senate to engage in such an examination as to any Supreme Court nominee could have profoundly harmful consequences.

March 20, 2017

When Judge Gorsuch appears to testify before the Senate Judiciary Committee this week, he will have a heavy burden to meet: he cannot simply call himself an originalist. Instead, he must demonstrate that he truly is one—and that his brand of originalism respects the whole Constitution, and that he will follow it wherever it leads. He must demonstrate his fidelity to the Second Founding Amendments that protect fundamental rights and ensure equal dignity under the law for all persons. And if he doesn’t, senators on the Judiciary Committee ought to ask him why.

March 18, 2017

One rising group of liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues strengthened rules against racial animus in jury deliberations. Justice Kennedy’s opinion for the court squarely relied on a C.A.C. amicus brief and the historical scholarship it showcased, by James Forman Jr., a professor at Yale Law School.

March 18, 2017

As we’re certain to hear during this week’s Senate Judiciary Committee confirmation hearing, conservatives insist that Judge Neil Gorsuch of the Denver-based 10th Circuit should be confirmed because he is an originalist who will decide cases by following the Constitution’s text and history. But a review of his record — both his opinions and his nonjudicial writings — suggests that he is a selective originalist.

March 8, 2017

[Senators] will be on solid ground to question whether Gorsuch’s professed “textualism” means fidelity to the whole text of a law, or using a-contextual readings, as Sen. Patrick Leahy observed in a 2008 hearing, “turning these laws on their heads and making them protections for big business rather than for ordinary citizens.”

February 28, 2017

Do litmus tests help explain a Supreme Court nominee’s judicial philosophy or do they offend the idea of an independent judiciary? As President Donald Trump prepares to speak to Congress tonight, that question casts a shadow over whatever he might say about his nominee to the Supreme Court, Judge Neil Gorsuch.

February 20, 2017

The fundamental question in Hernández v. Mesa is whether Hernández’s family can seek redress for this tragic abuse of power. Under the Constitution’s text and history, the answer is yes. The role of the courts in our system of separation of powers is to check official abuse of power and maintain the rule of law. There is no “border shooting” exception to these foundational principles.

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