Every week I get a call from a reporter asking if we are in a constitutional crisis. In this week’s edition of “No,” let me sketch out a scenario for the Abrego Garcia case. First, a brief history lesson.After Worcester v. Georgia, Georgia refused to effectuate Worcester’s release from jail. President Jackson did nothing.
Jack M. Balkin
Website:
https://jackbalkin.yale.edu/
Jack M. Balkin Blogs
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The Bank of the United States and the Unitary Executive
I’m sure somebody must have said this before, but anyway.Under the unitary executive theory, why was the Bank of the United States constitutional? The Bank was led by a Director who could not be removed by the President. It was the most “independent” independent agency in our history. This was, of course, one reason why…
Can the Supreme Court Remove a Solicitor General?
I introduce the following as an interesting hypothetical. Rule 8 of the Supreme Court’s Rules states:1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the Court will enter an order suspending…
When "Good" Laws are Given to Bad People
I’m about to “defend” the statute that’s being used to remove Mahmoud Khalil from the United States. But I have to begin by saying as forcefully as I can that I don’t believe for a moment that the Trump administration is using the statute in good faith. Yet I also don’t believe that any judge,…
Balkinization Symposium on Legal Pathways Beyond Dobbs– Collected Posts
Here are the collected posts for our Balkinization Symposium on Legal Pathways Beyond Dobbs. 1. Jack Balkin, Introduction to the Symposium2. Cary Franklin, History and Tradition’s Equality Problem3. Mary Ziegler, The History and Tradition of Criminalization4. Michael C. Dorf, Enumerating a Post-Dobbs Pathway5. Evan D. Bernick, Cthulhu and the Constitution6. B.…
The Other Footnote
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.Courtney Cahill[1]
Some scholars say
that constitutional equality law was built in the shadow of a footnote: “famous
footnote four” from the 1938 Supreme Court decision United States v.
Carolene Products Co. If recent transgender jurisprudence is any indication,
then constitutional sex equality law…
Emergency?
This week on “Supreme Court ER” we have new requests on an erroneous deportation and (I would think) on overruling Humphrey’s Executor. Next week we may see one appealing a TRO blocking tariffs.My observation is that if any of these situations present genuine emergencies, the correct course of action would be for the Court…
The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.
Neil S. Siegel
Lacking
theoretical ambition in the current moment, I want to make a point about
methodological inconsistency that will include but extend beyond equal
protection law in the context of sex, sexual orientation, and gender identity.
Last
Term, the U.S. Supreme Court decided…
Letter to the Brazilians, 1977
By Unknown
I have never signed an open letter, for the usual reasons people adopt this policy. But the recent proliferation of law faculty letters made me curious about their history and impact. So, as one does in 2025, I asked ChatGPT for a Deep Research report on this question. The most interesting example it turned up…
Biological Parenthood and Inequality
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.
Douglas NeJaime
The law too often treats parenthood as simply a biological fact—one that
naturally flows from birth or DNA. Indeed, courts refer to the birth parent or
genetic parent as the “natural” parent. The law
routinely treats biological parents as legal parents, regardless of…