What would it look like for the executive branch to defy a court order? Typically, we picture a dramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there’s another, less dramatic scenario, which has been largely overlooked in recent commentary.Suppose the administration simply defies a district court
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Nino's Paradox
I have posted a draft of my latest article, Nino’s Paradox, on SSRN. Here is the abstract:This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in…
The Mystery of Neil Gorsuch
In his new book Over Ruled: The Human Toll of Too Much Law, Supreme Court
Justice Neil Gorsuch makes an important and valuable point: in recent decades,
we have vastly increased the number of laws in the United States, producing
such complexity that even lawyers are sometimes unable to tell what the law is.
Unfortunately,…
Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)
Genevieve LakierAt this point in the Trump presidency,
it is quite clear that a central way in which the administration wields power
is by threatening those who speak and associate in ways that it dislikes with
economic or legal harm if they do not stop. These threats and promises of
payback are obviously intended to…
Birthright Citizenship and the Rosenbergs
Ethel and Julius Rosenberg had two children, both born in New York City. When their children were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union.Under the “allegiance” theory of birth citizenship, it seems clear that David and Robert Rosenberg (who are both still living) are…
How to combat social media platform power
Following Donald Trump’s election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured…
Comparative Reflections on Mahmoud Khalil's Case
The statute invoked in Mahmoud Khalil’s case brings to mind cases
from other jurisdictions. That statute provides (in the part relevant here)
that deportation is permissible if “the Secretary of State personally
determines that the alien’s presence would compromise a compelling United
States foreign policy interest.” Is such a determination conclusive? Or may it…
How to Bungle a Budget
Congress yesterday
enacted a continuing resolution (CR) to fund the federal government through the
six-plus months remaining in this fiscal year.
The measure cleared the House 217-213, essentially on party lines (with
one Member on each side voting against their parties). It passed the Senate 54-46, with two senators
that caucus with Democrats voting…
A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)
By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson,
Jeremy Kessler, Gillian Metzger, and David Pozen
On Thursday, the president of
Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and Human
Services, and the Department of Education. The letter states that the
university must meet numerous requirements by…
Sondheim and the N word
John Wilkes Booth was a racist murderer, but that apparently wasn’t the worst thing about him. The worst thing was that he used “the N-word.”Isn’t that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim’s classic musical…