Tag: Constitutional Law

Tom Cotton’s Letter Is Exactly Right


Tom CottonTime for a primer on international agreements, thanks to the controversy over Senator Tom Cotton’s letter to Iran. Joined by almost all of the Senate’s Republicans, Cotton’s missive warned Tehran that any nuclear deal with President Obama would not last unless it went to Congress for approval:

…We will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

As a description of American constitutional law, Senator Cotton has it exactly right. It’s as if he’s just informing Iran about the text of the Constitution. There are three types of international agreements under U.S. law:

Curb Your Enthusiasm for Immigration Decision


Opponents of President Obama’s immigration policy may want to temper their praise of federal Judge Andrew Hanen’s decision this week, which blocked the administration’s unilateral policy of refusing to pursue the deportation of millions of illegal aliens. Unfortunately, I think it is likely that an appeals court will reverse Judge Hanen’s decision because it tried — too cleverly — to avoid the fundamental issue of the President’s duty to enforce the law by relying instead on a technical aspect of the law governing administrative agencies. But when the case returns to the trial court, the judge will have to face the critical conflict between the Obama policy and the executive’s constitutional duty to “take Care that the Laws be faithfully executed.”

Judge Hanen, who sits in Brownsville, Texas, issued a 123-page opinion explaining why Texas and 25 other states had the right to challenge the Department of Homeland Security. That part of the decision, which showed why the states were harmed by the federal policy, and so had “standing” to sue in federal court, is likely to be upheld on appeal. As I’ve argued before, the same logic that allowed Massachusetts to sue the EPA for failing to regulate greenhouse gases — on the speculative possibility that gases would lead to global warming, which would lead to rising seas, which would reduce the land mass of the state — would more powerfully support states who had to provide services to illegal aliens allowed to remain in the United States by the Obama Administration. Judge Hanen pointed out that Texas would suffer a sufficient harm to sue because it would have to bear expenses to provide illegal aliens with driver’s licenses. Hanen’s opinion straightforwardly rebuts the weak claims of Obama supporters who believed that states had no right to sue in court.

Cake Wars!


shutterstock_236291065So… this is apparently happening:

Two legal rivals that duke out religious freedom cases are in unusual positions after a Denver bakery refused to make a cake decorated with the words “God hates gays” and an “X” over two men holding hands.

The case involves Azucar Bakery owner Marjorie Silva, who told KUSA-TV that making such a cake would be “just very discriminatory and hateful.” In response, Bill Jack, a Christian, complained he was the victim of religious discrimination. Colorado officials have since launched a formal investigation.

Ferguson and the Overfederalization of Crime


As the federal investigation into Michael Brown deepens – FBI agents going door-to-door and now, a new federal autopsy on the victim (because two isn’t enough), our own Troy Senik raises an important point in his post below: What justification is there for the feds to be running a process parallel to state and local officials?

The federal involvement is doubly wrong because (1) federal jurisdiction over Michael Brown’s death is questionable; and (2) even if such jurisdiction exists, it is redundant (as Troy notes) of state and local efforts.

Member Post


That’s the title of a good Hitchcock film released in 1953. It concerns a Catholic priest who receives the confession of a murderer during the sacrament and then is pressured to reveal that confession to police.  Sixty years ago, that scenario was just strong dramatic fiction. Today, it’s a reality for one priest in Louisiana:  […]

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FIRE Files Four Free Speech Lawsuits in One Morning, Launches New Litigation Project


Today, my organization, the Foundation for Individual Rights in Education (FIRE), has a big announcement about a major step in the decades-long war against unconstitutional speech codes at America’s public colleges and universities. Below is my statement from FIRE’s press conference at the National Press Club in Washington, D.C.:

Twenty-five years ago we had reason to think that the “temporary insanity” of campus speech codes had come to an end.

Was the Bergdahl Deal Legal?


ObamaDeepThoughtsWas President Obama’s exchange of five Gitmo detainees for Army Sgt. Bowe Bergdahl illegal?  Some conservatives — most notably the editors of the Wall Street Journal — are defending the decision as a proper exercise of Obama’s Commander-in-Chief power. I am not so sure. In fact, rather than a sign of strength, I think President Obama’s decision will ultimately weaken the office over the long run.

I think that a blanket legislative ban on the release of Guantanamo Bay prisoners would violate the President’s authority as Commander-in-Chief to control prisoners of war. Control of prisoners of war has long remained an important aspect of tactical and operational decisions on the battlefield; their detention and release can influence the morale of the enemy and their treatment of own soldiers. I make this case in greater detail in my 2006 book, War by Other Means, where I argued that President Bush should have had full constitutional authority as Commander-in-Chief to set policy on the capture and detention of al Qaeda operatives.

On the other hand, I think that Congress can use its spending power to decisively influence military policy. It could, for example, have closed Gitmo long ago by refusing to fund it. It can also prevent the transfer or release of prisoners by refusing to pay for it. In fact, it has done this for transfers of prisoners to the continental United States. I believe that Congress’s power of the purse is plenary and that the President cannot override it, even with the Commander-in-Chief power.

The Coming Clash on Benghazi


GowdyWith the formation of the House Select Committee on Benghazi, I predict that there will be a constitutional collision between the Obama administration and Congress — one that the executive will eventually win.  

Obama’s aides will refuse to testify on sensitive matters involving the facts of the 2012 attacks on the U.S. consulate, which killed the U.S. ambassador to Libya and several other U.S. officials. While some of the information might be protected by executive privilege, most of it isn’t. But even if Congress holds the witnesses in contempt, there is little doubt that Attorney General Eric Holder — who himself has already been held in contempt of Congress — will order prosecutors to refuse to enforce the legislative branch’s judgment in federal court.

This administration, after all, has systematically refused to enforce federal laws to suit its own political agenda — in contrast to the few occasions in the past where presidents have questioned federal law for constitutional reasons. Unless Congress uses its own inherent power to enforce contempt, to which it has not turned in many years, the Obama administration may be able to run out the clock on Benghazi, waiting for the next presidential election.

The Libertarian Podcast: The Second Amendment and Mass Shootings


shutterstock_124466629In the wake of last week’s shooting rampage by Elliot Rodger in California, there’s been a predictable firestorm over the Second Amendment and whether America makes it too easy to access guns. In this episode of the Libertarian podcast from the Hoover Institution, Professor Epstein addresses some of those issues: Was the Second Amendment meant to protect individual rights or collective ones? Has the Supreme Court’s recent jurisprudence on the issue gotten us closer to, or further away from, the original meaning? And, even if the critics have their way, do the kind of gun control regulations we most frequently hear proposed have any real prospect of curbing violence like what we saw last week? Listen to hear Richard’s take.


Responding to Classical Liberalism’s Critics


shutterstock_164117816As has been noted here at Ricochet, my former University of Chicago colleague, Cass Sunstein, recently authored a review of my new book, The Classical Liberal Constitution: the Uncertain Quest for Limited Government, in the pages of The New Republic. The review itself is thoughtful, though you’d never know that from the titles chosen by the editors of The New Republic. The print version is headlined “Tea Party Constitutionalism: The Unexamined Dogmas of the Libertarian Right.” Online, it’s even worse: “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.”

The magazine’s hysterics aside, Professor Sunstein’s criticisms still fall short in my view. As I note in my column this week for Defining Ideas at the Hoover Institution:

Sunstein’s review never challenges any of the particular places where I claim that the classical liberal approach is superior to its progressive alternative, as both theories relate to government structure or individual rights. Instead, Sunstein notes that many contemporary thinkers have rejected my basic constitutional orientation. He even invokes the authority of Oliver Wendell Holmes, Jr. to push for popular democracy: “If my fellow citizens want to go to Hell I will help them. It’s my job.” After expressing some sympathy with some of my (unidentified) positions, he concludes emphatically that “a judicially engineered constitutional revolution is not what America needs now.”

Misguided Priorities on First Amendment Fights


Yesterday, in Town of Greece v. Galloway, a 5-4 majority of the Supreme Court upheld ceremonial prayers at the start of a town’s board meetings, as noted in Adam’s earlier post. Two thoughts occurred to me while reading the decision.  

First, I continue to be impressed at how much effort both sides put into fighting over simple, symbolic signs of religion that do not come remotely close to running afoul of the Establishment Clause. It is hard to believe that the Town of Greece — or any of the many cities and states that have been sued over similar religious symbolism — is trying to found a mandatory state religion of the kind commonly seen in Europe.  

SCOTUS Decision on Legislative Prayer Doesn’t Go Far Enough—Adam Freedman


Yesterday was a good day for religious liberty at the Supreme Court, where five justices beat back an attempt to declare prayers at town meetings unconstitutional. It could have been a great day, however, if only the Court had accepted Justice Thomas’ invitation to declare the Establishment Clause completely inapplicable to state and local governments. But I’ll get to that in a minute.

The decision in Town of Greece v Galloway  involved a small city in upstate New York (Greece) in which town board meetings open with a roll call, a recitation of the Pledge of Allegiance, and – brace yourself – a prayer given by a rotating selection of local clergymen. Two town residents sued, arguing that the predominately Christian nature of the prayers (reflecting the composition of the local clergy) violated the First Amendment’s Establishment Clause. The Court’s liberal bloc (Breyer, Ginsburg, Sotomayor, and Kagan) would have banned the town’s prayer tradition, relying on a dominant theory in many earlier cases that the First Amendment prohibits any government action that might appear to “endorse” religion. 

Splitting Up California? Not So Fast


One of the more talked about political developments of late here in California is a proposed ballot initiative that would split the state into six new entities. With the widespread unhappiness about how the state is governed, the proposal has received plenty of attention in the press. But can it work? As Ricochet editor Troy Senik and I explain over at City Journal, the answer to that question is a definitive no.

First of all, the complaint that California can’t be governed in its present state has some serious problems:

The Libertarian Podcast: Cell Phones, Privacy, and the Fourth Amendment


On this week’s installment of The Libertarian podcast for the Hoover Institution, Richard leads us through a conversation about the two cases heard by the Supreme Court yesterday on whether police can search a cell phone without a warrant in the course of an arrest. Just how far should the Fourth Amendment’s protections extend? What’s the right balance between law enforcement’s interest in providing security and the individual right to privacy? Professor Epstein is characteristically insightful in answering these and other questions.

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Distinguishing Between Law and Politics on Affirmative Action


In my latest weekly column for Defining Ideas at the Hoover Institution, I look at last week’s Supreme Court ruling in the Michigan affirmative action case, Schuette v. BAMN. My view: that the legal considerations and the policy considerations raise very different issues. As I write:

As a constitutional matter, I think that Justice Kennedy made the right call [to uphold the voter-approved ban on affirmative action]. It is too much to say that the Equal Protection Clause instructs states on how to organize their internal governance structures. The questions of electoral motive really have to be put to one side, lest every electoral decision be subject to scrutiny for some hidden electoral bias. The decisions made at one time have to be reversible at some later time, by whatever means the state chooses to do so, including the referendum.

Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo


Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.

Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.

Understanding Congress’s Subpoena Power


With the House Ways and Means Committee voting earlier this week to send the Justice Department a criminal referral for Lois Lerner, the former IRS official at the heart of the Tea Partying target scandal, I’ve received a number of questions about how Congress’s power to hold someone in contempt works and what its effects can be. As it happens, I wrote about this for the Wall Street Journal way back in 1997. You can’t find the original article online anymore, but here’s a relevant excerpt that should shine some light on what’s going on:

If an individual refuses to cooperate, the law requires that the congressional committee first vote to hold the person in contempt. The committee’s inquiries must further an independent legislative purpose related either to legislation, possible legislation or oversight into government administration.

The Libertarian Podcast: The Supreme Court and Campaign Finance — Troy Senik


In this week’s installment of the Libertarian podcast from the Hoover Institution, Richard discusses the Supreme Court’s decision last week in McCutcheon v. FEC; what level of campaign finance restrictions — if any — the government should impose; and why the recent Brendan Eich controversy should lead us to rethink transparency requirements for political donors.

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Justice Breyer’s Campaign Finance Mistake


In my latest weekly column for Defining Ideas at the Hoover Institution, I examine the Supreme Court’s decision last week in McCutcheon v. FEC, overturning the aggregate limits that donors can give to political candidates in any given election cycle. As I’ve noted in the past, I generally have a strong aversion to the McCain-Feingold law, which, in my judgment, only aggravates distortions in the political market.

As I note in the piece:

SCOTUS Campaign Finance Ruling: Right Outcome, Wrong Reasoning


Yesterday, the Supreme Court occasioned much gnashing of liberal teeth by striking down one more piece of the federal campaign finance laws. At issue was the fact that, while the law limited an individual’s contributions to any candidate to $2,600 per election, it also sets a ceiling of $48,600 in cumulative giving to candidates.