Category: Uncategorized

“Today a Kindly President . . . Yet Tomorrow Another President.”

On the eve of the inauguration, while teaching Justice Douglas’s concurring opinion in Youngstown, I had a meta experience that is unlikely to ever recur.

We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade-unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.

Today and tomorrow.

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Update in U.S. v. Texas: Judge Hanen Extends Stay Until 3/17/17 “Given the Vagaries Involved in a Change of Administration”

On the eve the inauguration, DAPA likely has less than 24 hours left to live. Unlike DACA, which will be somewhat complicated to unravel, DAPA never took effect. With the stroke of a sharpie, President Trump can make good on his promise, and nullify it tomorrow.

In any event, the litigation following the remand from the Supreme Court proceeds. Around 4:30 Texas Standard Time, Judge Hanen issued an order, extending a previously agreed-upon stay from 2/27/17 to 3/17/17 (the order erroneously lists the date as 2016). Why? “This Court questions whether the time requested is adequate given the vagaries involved in a change of administrations.” Ever-green words for the transition: “vagaries.”

I was involved with this case from the outset. Never, would I ever have believed the twists and turns it took: a federal district court issued a nationwide injunction, the Fifth Circuit affirmed, due to Justice Scalia’s passing the Court affirmed that decision 4-4, and President Trump will nullify the order. This path is almost stranger than fiction.

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ConLaw Class 3 – The Separation of Powers

Class 3 – 1/19/17

The Separation of Powers

  • The Executive Power (503 – 509)
  • Youngstown Sheet & Tube (534 – 554)
  • Enumerated Powers (145-146)
  • Opinion of Secretary of State Thomas Jefferson (59 – 61)
  • Opinion of Secretary of the Treasury Alexander Hamilton (61 – 64)
  • Cabinet Battle #1 from Hamilton, an American Musical – Read the lyrics as you listen to the song
  • The Necessary and Proper Clause (100 – 102)
  • M’Culloch v. Maryland (102 – 114)

The lecture notes are here.

This is a postcard of the Youngstown Sheet and Tube Mill.


Here are photographs of the actual steel mill at issue in Youngstown, Ohio.




This is Secretary of Commerce Charles Sawyer, whom Truman ordered to seize the steel mill.


 The lead opinion in Youngstown was authored by Justice Hugo Black.


There were also concurring opinions written by five Justices. This is Justice Felix Frankfurter.


This is Justice William O. Douglas.


This is Justice Robert H. Jackson. Justice Jackson, who would serve as the lead prosecutor at Nuremberg, authored what has been seen as the definitive opinion in Youngstown.


This is Justice Tom C. Clark (a graduate of University of Texas at Austin).


Chief Justice Vinson dissented, joined by Justices Reed and Minton.


You can read Executive Order 10340, Executive Order 10340 – Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companiesm, here:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.

This was Marshall’s original draft opinion in M’Cullough v. Maryland.


This excellent video from the HBO John Adams Miniseries about the central banks is very well done.

Also, listen carefully to Cabinet Battle #1 from Hamilton, an American Musical – Read the lyrics as you listen to the song



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Prop1 Class 3: Law and Judges

Class 3 – 1/19/17

Law and Judges

  • Pierson v. Post, 18-23
  • Notes, 23-26
  • The Case of the Speluncean Explorers
    • Note: When you come to class, be prepared to identify which Justice you agree with most, and explain why. Also, keep in mind the rulings of the judges from Pierson v. Post when reading this article.

Today will be a slightly different class. We will cover Pierson v. Post, and the Case of the Spelunceuan Explorers. The focus of our class will be law and judges. Though the less will begin around the rule of capture, I hope the discussion eludes that narrow focus, and that we have a foxy talk.

The lecture notes are here.

Pierson v. Post

A few historical notes notes.

First, about the judges. Daniel Tompkins wrote the majority. He went on to serve as Governor of New York and Vice President for James Monroe. And where did Tompkins die? In a neighborhood of Staten Island, now known as Tompkinsville.


The author of the dissent was Brokholst Livingston, who later received a recess appointment to the Supreme Court from President Jefferson. He would be confirmed in 1807, and serve until his death in 1823. Livingston served a a secretary to future Chief Justice of the United States John Jay in Spain from 1779-1782.


Here is a map showing Post’s home in 1800 (courtesy of Professor Angela Fernandez of the University of Toronto).


Here are some drawings of fox hunts:


Here is a video about the controversy of the fox hunt in the UK:

The Case of the Speluncean Explorers

After you read “The case of the Speluncean Explorers,” please vote which Justice you agree with most. 

This is a picture of Lon Fuller, the author of the Case of the Speluncean Explorers.


A lot of authors have tried to write additional version of this article, but they are nowhere near as good as the original.  speluncean

By the way, for you musical fans, the case of Commonwealth v. Valjean is based, of course, on Victor Hugo’s Les Miserables (Les Miz as you may know it). Jean Valjean steals a loaf of bread to feed himself and his starving sister and neice. He is arrested, and spends 19 years as a “slave to the law.” The movie version of this musical was atrocious. The singing made me cringe. If you can ever see it on Broadway, you should. It is a fantastic parable of law, morality, and ethics.

Valjean and Javert sing about the crime in “Look Down” (starts at 2:29)

JAVERT: Now bring me prisoner 24601, Your time is up, And your parole’s begun, You know what that means.

VALJEAN: Yes, it means I’m free.

JAVERT: No! It means you get, Your yellow ticket-of-leave, You are a thief

VALJEAN: I stole a loaf of bread.

JAVERT: You robbed a house.

VALJEAN: I broke a window pane. My sister’s child was close to death, And we were starving.

JAVERT: You will starve again, Unless you learn the meaning of the law.

VALJEAN: I know the meaning of those 19 years, A slave . . .  of the law

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New in National Review: “How the States Can Help Trump Make Federalism Great Again”

Almost immediately after the election, progressive states that have cheerfully supported every manner of Barrack Obama’s incursions into federalism, flipped on dime. Now, California wants to become the new Texas–like orange is the new black–and rely on the principles of federalism to protect their sanctuary cities. What is Texas, and other likeminded states to do? Sit on the sidelines and laugh? Fall in line behind the Trump Administration? I argue they should help the cause of federalism, wherever it appeals, and hope to lock in precedents for a future administration that will be hostile to the states.

My latest piece in National Review is titled (with just the right degree of click-bait): “How the States Can Help Trump Make Federalism Great Again

Here is the introduction:

Over the last eight years, more than two dozen state attorneys general have mustered a veritable legal army to thwart the unconstitutional overreach of the Obama presidency. With the change in administrations, however, these elite forces should not disband, but rather must retool. If the Trump White House is to succeed in restoring constitutional governance, it will need the support, cooperation, and sometimes pressure from the states.

In the short term, state attorneys general can coordinate with the incoming Justice Department to identify the cases and appeals that should be dismissed or settled. Further, these legal officers should roadmap how Congress and the president can rescind unlawful executive actions. Going forward, when progressive states seek to resist federal incursions, conservative states should consider supporting the principles underlying those cases: state capitols, and not the central government, should decide local matters. Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.

And the conclusion:

I am not Pollyannaish. It is easy enough for a law professor to extoll the value of federalism, but on the ground, elected attorneys general may face a backlash if they actively challenge the Trump administration in court. Three important values should guide this important decision. First, Donald Trump will only be president for the next four to eight years. Sooner, rather than later, a progressive will be in the White House. The precedents that are established now will serve as a check on the havoc a President Elizabeth Warren cold unleash on the states. Second, there is a powerful value to gaining buy-in from the liberal justices — especially those who will serve for decades to come — for the principles of federalism. True, Justices Kagan or Sotomayor may be able to distinguish California’s present challenges with Texas’s future challenges — but the feebleness of those flip-flops will be visible to all.

Finally, and most importantly, state officials take an oath to the Constitution, not to the Republican party. They bear the unique responsibility for enforcing the Tenth Amendment, in all of its dimensions: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The mission of reining in the federal government’s powers, and restoring the Constitution’s separation of powers, should continue for the next four years, eight years, and beyond.

I hope this generates food for thought. The elite legal teams built up by Republican Attorneys General still have an important mission to help restore constitutional governance, even if the Trump Administration is not willing.

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Interview on Fault Lines – “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

On this blog I go out of my way not to write about myself. I don’t think my personal story is particularly interesting, nor do I think it is relevant to understand my perspective on the law. Yet, for reasons only he knows, Scott Greenfield asked me to sit down for a (virtual) cross-examination on the Mimesis Fault Lines blog. The questions are fairly involved, and inquire about my path from college to law school to clerking to teaching. For readers who would like to learn more about me, please go through the cross, with the provocative title, “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

Even worse is Scott’s tweet:

Perhaps most relevant to this blog’s usual audience is the penultimate question, which touches on concerns of academic freedom:

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).


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ConLaw Class 2- Why is the Constitution Supreme?

Class 2 – 1/17/17

Why is the Constitution Supreme?

  • The Federalist Papers (25)
  • Federalist No. 51
  • Federalist No. 78 (32-35)
  • Evidence of the Meaning of Judicial Power (93-97)
  • Foundational Cases on Constitutional Structure: The Marshall Court (83)
  • The Judicial Power (84-86)
  • No Advisory Opinions (672 -674)
  • Marbury v. Madison (86-93)
  • Ex Parte Merryman (512 – 518)
  • Cooper v. Aaron (to be discussed in class)

The lecture notes are here.

Today’s class will focus on these clauses of the Constitution:

Article II, Section 2: He shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United State, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Article II, Section 3: He  . . . shall Commission all the Officers of the United States

Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution .

Ex Parte Merryman was authored by Chief Justice Roger Taney, though in his capacity as Circuit Justice for Maryland.

This is the most famous portrait of Taney.

Here is Taney later in life:

This bust of Taney appears in the Supreme Court’s Great Hall.

As we will discuss later, Taney is a controversial Justice. Recently, the city of Frederick, Maryland agreed to remove his bust from public grounds. It was previously vandalized.

Please take a moment to look at this slideshow of the Little Rock Nine.

The Little Rock 9:




06 Sep 1957, Little Rock, Arkansas, USA --- Elizabeth Eckford ignores the hostile screams and stares of fellow students on her first day of school. She was one of the nine negro students whose integration into Little Rock's Central High School was ordered by a Federal Court following legal action by NAACP. --- Image by © Bettmann/CORBIS

Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”


A very worthwhile trip if you ever make it to Little Rock.

During my recent trip to Little Rock, I visited the Little Rock Central High School. This is the locus of Cooper v. Aaron, and the school where the famous Little Rock 9 were escorted into the desegregated school by federal troops. What makes this national park site remarkable is that it is *still* an active high school.

Across the street from the school, they refurbished a gas station to appear as it did during the 1950s. It was at this gas station that the media filed their reports.


Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.


As I approached the school, and climbed those famous steps, I was overcome by a very powerful feeling. Constitutional history was made right here. Looking across the street, I imagined the lynch mobs tormenting those poor students. As I came to the front door of the school, I peered inside, and imagined what those students felt when they entered. (I understand they were rushed to the Principal’s office so they were not intercepted). As chance would have it, classes were in session, so I could not enter the school.


The school is huge. It takes up an entire block, and has many sections.






Across the street from the High School was a visitor center that had some interesting exhibits.

Alas, this sign states an inaccuracy–We the People , as written in in 1787, “included only white male landowners.” I understand the point they were trying to make, but the Constitution itself was not so limited. In fact, it spoke in broad terms of people, and not men. It didn’t even use the word “slave,” but reverted to other euphemisms (other persons, etc.). At the time of the framing, in New Jersey at least, women had the right to vote. They may have even participated in the Constitutional ratification conventions. It would be more accurate for the Museum to have explained how the Constitution was interpreted. But it is not accurate–and somewhat misleading–to state it like this.


One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.


Here is a PDF of the original, courtesy of the National Archives:

When I became President, I took an oath to support and defend the Constitution of the United States. The only assurance I can give you is that the Federal Constitution will be upheld by me and by every legal means at my command.


Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.



This was the original docket sheet for Cooper v. Aaron.



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