Category: Constitutional Law

Our Crisis of Faith on Constitution Day

Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves.  Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.

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The New Federalist Party: Biden Move Forward With the Greatest Federalization Push Since Adams

President Joe Biden has long pledged to “build back better” but in the last few months it has become clear that his transformative plans go beyond mere infrastructure and extend to our very structure of government.

From abortions to elections to rents, Biden is seeking to federalize huge areas to displace state law. Not since John Adams and his Federalist Party has the country faced such a fundamental challenge to our system of federalism. Continue reading “The New Federalist Party: Biden Move Forward With the Greatest Federalization Push Since Adams”

Bubble Wrapping History: The National Archives Moves To “Reimagine” The Founding

Below is my column in the Hill on the recommendations of the anti-racism task force to “reimagine history” at the National Archives. It appears that the Archives are moving forward with warnings and other reforms.

Here is the column: Continue reading “Bubble Wrapping History: The National Archives Moves To “Reimagine” The Founding”

“What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing

Justice Stephen Breyer has been a target of liberal groups for months as billboards and commentators call for his immediate resignation. It has backfired with Breyer pushing back on such pressure and reaffirming that he will stay on the Court so long as he is capable of carrying out his duties. Breyer has also opposed the same groups and a number of leading Democrats pushing for court packing.  Breyer just reaffirmed his position (and that of other justices like the late Ruth Bader Ginsburg) in opposition to court packing.

 

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Admission Against Interest: White House Chief of Staff Admits Vaccine Mandate is a “Work Around” the Constitutional Objections

In the law, it is called an admission against interest or an out-of-court statement by a party that, when uttered, is against the party’s pecuniary, proprietary, or penal interests. In politics, it is called just dumb. White House chief of staff Ronald Klain offered a doozy this week when he admitted that the announced use of the authority of the Occupational Safety and Health Administration (OSHA) for a vaccine mandate was a mere “work around” of the constitutional limit imposed on the federal government. The problem is that the thing being “worked around” is the Constitution. Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional protections. Continue reading “Admission Against Interest: White House Chief of Staff Admits Vaccine Mandate is a “Work Around” the Constitutional Objections”

“MyPillow Guy” Becomes a Nightmare for a Jan. 6 Rioter — and for Free Speech

Below is my column in The Hill on the re-arrest of an Iowa man who took part in the January 6th riot. The case raises a growing concern over the way courts are weighing the political views of defendants a matter for bail and sentencing.  While raising such concerns inevitably brings out an Internet mob and accusations of being a “fellow traveler,” free speech often demands the protection of the least popular individuals in our society. Many of those who long denounced the censorship of suspected Communists in the 1950s now support censorship or blacklisting of individuals on the right. Others remain conspicuously silent in the face of speech sanctions or censorship. The Jensen case reflects a new sense of license in weighing the political views of defendants in determining whether to release or to jail them.

Here is the column: Continue reading ““MyPillow Guy” Becomes a Nightmare for a Jan. 6 Rioter — and for Free Speech”

Australia High Court Delivers Major Blow to Free Speech In Defamation Ruling

Free speech has always held a precarious position in Australia which does not have an equivalent to the First Amendment in guaranteeing free speech as a constitutional right. Despite this history, a new decision out of the High Court is still shocking in its implications for further attacks on free speech. The court ruled that newspapers and television stations that post articles on social media sites like Facebook are liable for other third party comments on those posts. The ruling, if replicated in other countries, could accelerate the censorship of viewpoints on the Internet. Continue reading “Australia High Court Delivers Major Blow to Free Speech In Defamation Ruling”

Federal Court Rules Against SUNY-Binghamton in Important Free Speech Challenge

There is an interesting ruling this week out of New York where a federal court has ruled in favor of a conservative student group alleging that the State University of New York at Binghamton has engaged in a pattern of censorship of conservative speakers and events. We previously discussed the controversy. What makes this lawsuit by the Young America’s Foundation particularly significant is the allegation that SUNY-Binghamton barred events by allowing protesters to shut them down. Lawrence Khan, a U.S. district judge denied SUNY Binghamton’s motion to dismiss. I discuss this type of failure to protect public forums in my forthcoming law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, 45 Harvard Journal of Law and Public Policy (2021). Continue reading “Federal Court Rules Against SUNY-Binghamton in Important Free Speech Challenge”

“The Light is Better Here”: Garland Pledges To Protect Abortion Clinics From “Attack”

Did The Biden Administration Commit to a Knowingly Unconstitutional Act? New Evidence Surfaces on the Farm Debt Relief Provision

We have been discussing a growing list of losses of the Biden Administration in court, a record that began soon after inauguration. Most concerning is the litigation of legal claims that most legal experts viewed as unsustainable given recent Supreme Court precedent. In one such case on the eviction moratorium, President Biden admitted that his own White House counsel and their favorite legal experts all told him that the moratorium would clearly fail but he listened to Professor Laurence Tribe at the urging of Speaker Nancy Pelosi.  Despite the pledge to return to a respect for the “rule of law,” Biden openly suggested that they could use the litigation to get as much money out of the door as possible before being barred by the courts. They lost as many of us predicted. Now however there is a new email that suggests that the Biden Administration may have pushed another program that it viewed as presumptively unconstitutional under controlling precedent: the exclusion of white farmers under the debt relief program during the pandemic.

Continue reading “Did The Biden Administration Commit to a Knowingly Unconstitutional Act? New Evidence Surfaces on the Farm Debt Relief Provision”

The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law

Magnum Chaos

Below is my column in The Hill on reaction to the refusal of the Supreme Court to enjoin the Texas abortion law. The order of the Court expressly did not reach the merits and certainly did not, as claimed, overturn Roe v. Wade. The Texas law is not even the greatest threat to Roe. Not only is there a pending case on the docket of the Court that has long been viewed as a serious threat to Roe, but the White House and the House of Representatives are threatening immediate actions that could also create new challenges for pro-choice litigants.

Here is the column: Continue reading “The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law”

Klobuchar Calls For The Killing of Filibuster Despite a Call for its Full Restoration During The Kavanaugh Confirmation

Supreme Court Rejects Injunction of Texas Abortion Law . . . Media Erupts With Roe Obituaries

For many waking up yesterday, they must have thought that they had a real Rip Van Winkle of a snoozer for the last 50 years.  Across the spectrum, legal experts were declaring the death of Roe v. Wade after the Supreme Court refused to enjoin a Texas anti-abortion law in an emergency filing. Rep. Alexandria Ocasio-Cortez announced that the Supreme Court just  “overturned” Roe in the order. The mainstream coverage ranged from the outright death of Roe to its being rendered to a vegetative state. Even more reasoned analysis asked “Is this how Roe v. Wade dies?” The answer is no.  This is how legal analysis dies. Continue reading “Supreme Court Rejects Injunction of Texas Abortion Law . . . Media Erupts With Roe Obituaries”

Subpoena Tsunami: House Democrats Issue Hundreds of Secret Subpoenas Targeting GOP Colleagues and Others

Below is my column in The Hill on the subpoena tsunami coming out of the House Select Committee investigating the Jan. 6th riot in Congress. The list of hundreds of targets include not only GOP members of Congress but demands for secrecy from these companies on the identity of targets. Just two months ago, the Democrats denounced such secret orders by the Justice Department as a threat to our civil liberties.

Here is the column: Continue reading “Subpoena Tsunami: House Democrats Issue Hundreds of Secret Subpoenas Targeting GOP Colleagues and Others”

Thousands of Doctors and Health Professionals Sue the Biden Administration Over New Gender Transition Policy

There is an interesting constitutional challenge brewing in Tennessee where 3,000 physicians and health care professionals are suing the Biden Administration over the mandate for doctors to perform gender transition procedures. One of the first changes ordered by the Biden Administration was redefine the discrimination laws to include the denial of such gender transition procedures.  The case could force courts to address a direct conflict between anti-discrimination laws and religious values–a medical version of cases like Masterpiece Cake shop.. The Defendants include the U.S. Department of Health and Human Services and the Office for Civil Rights of the HHS, including Xavier Becerra, the secretary of the HHS, and Robinsue Frohboese, acting director and principal deputy of the Office for Civil Rights of the HHS.

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