Nov 16, 2014

Does the Compact Clause Require Presentment?

The Compact Clause of Article I, Section 10 provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

As a purely textual matter, it would not seem that the President must sign an interstate compact for it to be effective. The states only need the consent of Congress, which includes both houses. This is contrasted with the Article I, Section 7 presentment clause:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.

“Every bill” that passes both houses must be signed by the President to take the force of law. It is not clear that a “compact” is a “bill,” though it would seem to be some species of federal law for purposes of the Supremacy Clause.  Also, the phrase “Consent,” is quite different from “passed.” In other words “pass[ing]” a “Bill” seems quite different from providing “Consent” for a “Compact.” As a mater of text, I’m not sure if Presentment is necessary.

As a matter of precedent, the Court has never weighed in on whether the President must sign a compact. The Court’s compacts clause jurisprudence has been limited to a discussion of what types of agreements require Congressional approval.

In 1893, in Virginia v. Tennessee, Justice Field found for the Court that only compacts “which may encroach upon or interfere with the just supremacy of the United States” require the “Consent of Congress.”

Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.

The Court reaffirmed this in United States Steel Corp. v. Multistate Tax Commission (1978). Cursory research shows that no court has ever considered a compact that was consented to by both Houses of Congress, but not approved by the President. (If you know of any such precedents, please share them). It may have never been challenged–in the same way that no one before Noel Canning ever challenged appointments made to fill vacancies that didn’t arise during the recess.

As a matter of Congressional practice–which we learned in Noel Canning counts for a lot–the President has historically been viewed as having to sign compact.

Bradford Clark noted in the Virginia Law Review, that historically, compacts were treated as requiring presentment.

Although the Constitution does not specify the form that such consent must take, the established congressional practice has been to give consent by law using the ordinary constitutional process of bicameralism and presentment. For a list of interstate compacts approved by Congress between 1789 and 1925, see Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution–A Study in Interstate Adjustments, 34 Yale L.J. 685, 735-48 (1925). A review of the compacts cited in this study reveals that each was approved by legislation passed by both Houses of Congress and presented to the President. Congress appears to have continued this practice. See Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403, 508 (2003) (stating that “in practice the President’s role in approving compacts has been honored as in ordinary legislation”).

Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007).

Edward T. Swaine observes much the same.

“in practice the President’s role in approving compacts has been honored as in ordinary legislation.411

411 See Note, Charting No Man’s Land: Applying Jurisdictional and Choice Of Law Doctrines to Interstate Compacts, 111 Harv. L. Rev. 1991, 1993-94 n. 19 (1998) [hereinafter Note, Charting No Man’s Land] (citing Frederick L. Zimmermann & Mitchell Wendell, The Interstate Compact Since 1925, at 94 (1951)); see also, e.g., Holt Cargo Sys., Inc. v. Delaware River Port Auth., 165 F.3d 242, 243 n.1 (3d Cir. 1999) (noting that compact creating Delaware River Port Authority was “signed into law by Congress and the President under the Interstate Compact Clause”). The terms of an individual compact may also provide for presidential participation. See, e.g., West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27-28 (1951) (noting that compact terms provided for the President to appoint members of the compact commission). As Professor Tribe has previously noted, however, situating the power of international agreement in Article I would appear to give Congress the power to override the President’s veto. Tribe, Taking Text and Structure Seriously, supra note 22, at 1252-58.

Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403, 508 (2003)

It seems in the past, the threat of a presidential veto has stalled compacts:

Frederick L. Zimmermann & Mitchell Wendell, The Interstate Compact Since 1925, at 94 (1951). Zimmermann and Wendell note that the threat of a presidential veto has occasionally been an obstacle to compact formation. See Zimmermann & Wendell, supra note 13, at 24.

Charting No Man’s Land: Applying Jurisdictional and Choice of Law Doctrines to Interstate Compacts, 111 Harv. L. Rev. 1991, 2008 (1998)

But that, like Noel Canning, doesn’t prove how the Compact Clause was originally understood.

So here we are in an odd Noel Canning situation. For a very long time, Congress has presented compacts to the President, and the President has approved them, or vetoed them. Even though there is nothing in the Constitution saying that this is a requirement. Were the Court to ever find that Presentment was unnecessary, virtually nothing from the past would change. The President’s approval would be viewed an honorific surplusage.

But unlike Noel Canning, bypassing the Presentment requirement would enable both houses of Congress–such as this one–to work around the President, and give states the authority to do things that states could not otherwise do. Such an understanding would greatly shift the power of Congress and the states against the Executive.

This thought only occurred to me this morning while talking to a friend, so there may be a lot that I’m missing. I’m also not sure how I feel about it as a matter of policy. But I’ll think this open question through more.

On a related note, speaking of states, after last week’s elections, 27 states have both chambers of Congress controlled by the GOP. Article V provides that a constitutional convention can be called by an “Application of the Legislatures of two thirds of the several states.” In other words, we are still 6 states shy of the 33 states necessary where both houses of the Legislature are controlled by a single party.

Update: A colleague writes in, pointing to Article 1, Section 7, Clause 3?

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States …”

If a compact fits in with “order, resolution, or vote,” then compacts would have to be presented. The Art. I, S. 7, Cl. 3 argument is better than the straight-up bicameralism and presentment argument, as a “Compact” is definitely not a bill. It may be closer to a “vote.” (I haven’t seen this argument before, but I’ve only looked into it briefly)

But I don’t know that this resolves the issue entirely. Not all “votes” by Congress must be presented to the President, such as when Congress proposes constitutional amendments under Article V. Those go to the states. And specifying 2/3 of both houses sounds a lot more like a vote than “consent” of Congress. Though, the flipside is that Article V spells out in details how Amendments are to proceed. The Compact Clause is largely silent, beyond saying “Consent.”
I’m not sure how broadly to read “vote.”
As a purely textual matter, I don’t know that it is self-evident that compacts, subject to the Consent of Congress, are the types of “votes” presented to the President. There are some things Congress can do itself.
But this would give Congress a means to evade earlier federal laws. So I’m skeptical.

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Nov 16, 2014

Malaysia Constitutional Law Professor Challenges Colonial-Era Sedition Act

Law Professors take for granted that when we criticize the government, the courts, or an opinion, usually nothing happens. I mean that in two senses. Nothing happens, because no one in power reads what we write. More importantly, even if someone in power reads what we write, nothing will happen to us. That isn’t the case elsewhere.

The New York Times profiles a constitutional law professor in Malaysia who is facing up to three years in jail for criticizing the government under a colonial-era Sedition Act. He is now trying to challenge the law through the Malaysian judicial process–a process that seems inconsistent with the rule of law.

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Nov 14, 2014

Hamilton and Story on the Recognition Power in Zivotofsky

One of the more enlightening exchanges in the oral argument in Zivotofsky v. Kerry focused on how Justice Story and Alexander Hamilton viewed the recognition power–was it only for the President, or did Congress have a role.

Justice Breyer, an unexpected originalist, kicks it off, with a quotation from Justice Story:

JUSTICE BREYER: If you take that position, 2 which explains it, then what do you think of Justice Story who writes in 1833 that, “The exercise of the prerogative of acknowledging new nations and ministers” ­­ and he makes clear that involves whether a city or a region is part of a country, et cetera, he says, it’s an executive function. Some argue, as we ­­ I think we’ve just heard, that Congress could make that decision, too, but that hasn’t been decided. And he  concludes that, “A power so extensive in its reach over our foreign relations could not properly be conferred on  any other than the Executive Department will admit of little doubt.” …

So he is saying, of course, you have to have one person deciding such a thing, and that has to be the Executive. That’s 1833, pretty knowledgeable about the founders’ intent.

The Chief took Breyer’s citation to Story, and raised him a Hamilton:

CHIEF JUSTICE ROBERTS: I suppose ­­ I suppose you could also say Hamilton in 1787 or whatever it was trumped Storey [sic] in 1830, right? I mean, he said pretty much the exact opposite, that the recognition provision was really just a trivial formality.

Alas, Ms. Lewin three some cold water on Alex:

MS. LEWIN: Hamilton also switched his position before he was in the administration and after he was in the administration.

If you wish to read more about the original understanding of the recognition power, please check out the 2015 Harlan Institute-ConSource Virtual Supreme Court competition, which focuses on just this question. The lesson plan is here.


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Nov 14, 2014

A 27-Line Breyer Page in Zivotofsky v. Kerry

We experienced a Breyer page–where Justice Breyer speaks uninterrupted for an entire page–in Zivotofsky v. Kerry. This Breyer page stretched across three pages, for a total of 27 lines. Note that there is not a single question, let alone a question mark, anywhere in the Breyer page.



See previous Breyer pages in EPA v. EME Homer, Medtronic v. Boston Scientific Corp (32 lines), and Bond v. United States (38 lines).

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Nov 14, 2014

Highlights from Justice Alito’s 2014 Federalist Society Gala

Thanks to a super-handy foldable bluetooth keyboard, I was able to live-tweet Justice Alito’s address before the Federalist Society Gala. Justice Alito was interviewed by his former law clerk, Adam G. Ciongoli. The discussion ranged from the FirSst Amendment, to the Fourth Amendment, to how Justice Alito works with his clerks. It was very enjoyable. Here are some of the highlights I tweeted.

They opened with some insights into Justice Alito’s career, time in New Jersey as a US Attorney, and as a 3d Circuit Judge.

And, to answer a question others have raised, Justice Alito did try one case in district court–it was the murder of an FBI agent.

We also learned that Justice Alito does not like an unnamed female Court Artist, who draws him, and Justice Kagan “horrible.”

Justice Alito also thought about taunting Justice Kagan and Ginsburg by spitting in his spitoon.

Justice Alito also opined that initially, his plan for oral arguments was to only interrupt at the end of paragraphs. That didn’t work. Then he tried at the end of sentence. That didn’t work. So now he is content to be rude.

For those who want to argue, they should string a single sentence that lasts 30 minutes. Recently Seth Waxman was chastised by Justice Scalia for not pausing for a breath between sentences.

THe next set of questions focused on the role of the law clerk.

I’m looking at you Justices Marshall and Blackmun. Alito has no interest of going back to cert pool.

Then, Alito was asked about legal education.

Next, the questions turned to the First Amendment, with a focus on his dissents in Snyder v. Phelps, Stevens, and Alvarez:

We were treated to this description of crush films.

Alito next explained that he does not view our society evolving in the right direction with respect to the protection of free speech, relating to the “Evolving Standards” in 8th Amendment jurisprudence:

Next, the questions turned to the 4th Amendment. Alito’s general position was that Legislatures, and not Courts should be in the business of deciding what practices are reasonable, or not, though at bottom courts interpret the 4th Amendment:

Then, in what seemed like a sleight to Justice Scalia’s opinion in Jones, he critiques the property view of 4th Amendment law (Nino was sitting in the front row):

Ultimately, it should be Congress who defines the contours of privacy for technology.

For the last question, Ciongoli noted that after Alito was appointed to the Court, the Philadelphia Phillies won the division several times, and the World Series. Can he help the Sixers?

Also, special shout-outs to the Supreme Court press corps who was in the back of the room on a dais (elevating the freedom of the press!).

And my bluetooth keyboard.

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Nov 14, 2014

Al Qaeda and ISIS Make Peace: Does 2001 AUMF Now Justify War Against ISIS?

One of the leading arguments to explain why the President lacks the authority to attack ISIS under the 2001 AUMF against Al Qaeda is that Al Qaeda expelled ISIS. The two groups did not get along. Although the AUMF allows the President to determine who “Al Qaeda” is, and he has explained that ISIS is the true inheritor of Bin Laden’s legacy (descended in fee simple), it was always a stretch to claim that Al Qaeda and ISIS were one.

But now, in a scene out of the Godfather, it seems after a pow-wow at a farm house in Syria, ISIS and Al Qaeda are on the same page.

Militant leaders from the Islamic State group and al-Qaida gathered at a farm house in northern Syria last week and agreed on a plan to stop fighting each other and work together against their opponents, a high-level Syrian opposition official and a rebel commander have told The Associated Press. …

he Associated Press reported late last month on signs that the two groups appear to have curtailed their feud with informal local truces. Their new agreement, according to the sources in rebel groups opposed to both IS and Nusra Front, would involve a promise to stop fighting and team up in attacks in some areas of northern Syria.

If this is in fact the case, the President’s reliance on the 2001 AUMF just got a lot stronger. This underscores the argument made often–how can it be that the legality of the President’s war depends on the alliances ISIS forms. Although, this is the same President who recently sought to repeal the 2001 AUMF.

We will see if the President still goes to Congress. Between immigration, ISIS, and Obamacare, the next two years will be intense.

Update: Jack Goldsmith agrees that this new alliance makes the 2001 AUMF argument much stronger:

It is hard to know what this means.  But if IS and Nusra Front “work[ing] together against their opponents” includes working together against the United States or its military forces in the region, and if, as many believe, Nusra Front is part of or very closely related to al Qaeda, then the 2001 AUMF would more straightforwardly than previously thought authorize the President to use force against IS.


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Nov 13, 2014

Thomas Weighs In On Denial Of Stays in SSM Cases: “Our recent practice, however, gives me little reason to be optimistic.”

Today, the Supreme Court denied a stay of a 9th Circuit decision invalidating an amendment to the Arizona Constitution. Justice Thomas, joined by Justice Scalia, issued a statement with respect to the denial of the stay. While he agreed granting a stay was not appropriate here, he weighed in on the Court’s erratic denial of stays from opinions that invalidated state constitutional provisions:

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U. S. 321, 327 (1998); United States v. Gainey, 380 U. S. 63, 65 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177 (1996) (SCALIA, J., dissenting from denial of certiorari) (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U. S. ___ (2013); Cook v. Gralike, 531 U. S. 510 (2001); Saenz v. Roe, 526 U. S. 489 (1999); Renne v. Geary, 501 U. S. 312 (1991); Massachusetts v. Oakes, 491 U. S. 576 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ante, p. ___; Smith v. Bishop, ante, p. ___; Rainey v. Bostic, ante, p. ___; Walker v. Wolf, ante, p. ___; see also Otter v. Latta, ante, p. ___ (denying a stay); Par- nell v. Hamby, ante, p. ___ (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state consti- tutional amendment.

Of course, the Court has yet to act on a petition for a writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.

Wow. This is remarkable. Thomas and Scalia–who voted for a stay in the Kansas case–seem frustrated by the Court’s refusal to grant certiorari.

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Nov 13, 2014

Timing of Same-Sex Marriage Appeals

I am quoted in Bloomberg BNA Law Week piece about the timing of the same sex marriage appeals, titled “Mich., Ky. Same-Sex Marriage Bans Upheld; 6th Circuit Decision May Ring in High Court,” by Kimberly Robinson. The article is deeply behind a paywall, so I can’t even link to it. Here are my quotes:

Josh Blackman, assistant professor at the South Texas College of Law, Houston, explained: ‘‘Histori- cally, the latest a petition for certiorari could be granted, and heard in the same term, was by the begin- ning to middle of January.’’

‘‘Such cases are argued in April at the end of the Court’s normal calendar for arguments.’’

‘‘If certiorari is granted at the end of January, or be- ginning of February, the case is scheduled for argument the following October,’’ Blackman said.

‘‘But this is not a normal case.’’

‘‘First, the plaintiffs have announced they will file a petition for certiorari really soon, perhaps in the next week,’’ Blackman said.

‘‘While the states would have 30 days to reply, and can request an extension that would usually be granted, I’ve heard that the states do not plan on waiting, and may file their brief in opposition to certiorari before the 30 days are up.’’

‘‘If the plaintiffs then waive their reply, or file some- thing quickly, it is feasible that this case could be before the justices not too long after Thanksgiving, with a grant before Christmas,’’ Blackman said.

‘‘With such timing, the case would be argued in March or April, with a possible decision by June of 2015.’’

‘‘Second, even if the parties do not move this fast (which they probably will), the Court can always order expedited briefing, or add additional argument days as needed,’’ Blackman said.

‘‘In other words, it is possible this case will be heard this term if everyone moves really, really fast.’’

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Nov 13, 2014

Lewyn on the Ashby High Rise and Nuisance Law

Michael Lewyn, on the unzoned city of Houston, writes at Planetizen about the recent decision by a Texas jury, finding that the Ashby High Rise was a nuisance. Michael does not think the nuisance finding was correct (I agree). Here is an overview of his argument:

First, the public policy in favor of affordable rental housing dictates against such actions. … If (as in the Loughead action) homeowners are allowed to use nuisance law to keep multifamily housing out of their neighborhoods, the shortage of rental housing is likely to get worse, causing rents to continue rising. …

Second, the public interest in promoting infill should bar such nuisance suits. Because most land is zoned for single-family housing, most of urban America is near a single-family neighborhood. …

Third, in cities with zoning, the public interest in orderly planning should support strict limits on nuisance actions designed to stop new development. (Obviously, this argument does not apply to Houston, which lacks zoning.) …

The Loughead plaintiffs argue that their suit is necessary to prevent their neighborhood from being deluged with traffic. I don’t find this argument persuasive even in Houston, because if new residents and their cars are kept out of one neighborhood, they will merely create traffic somewhere else, and will probably wind up driving their cars through the plaintiffs’ neighborhood. But even if this argument is sensible in Houston, it does not justify nuisance actions in cities with zoning. In those places, arguments about traffic, noise, etc., should be made before city councils and zoning boards, who can balance neighborhood concerns against broader citywide interests.


Michael’s last point is an interesting one. In a city like Houston that lacks zoning, should the city turn to nuisance as an alternative? There are no zoning boards to appeal to. In a piece I’m working on, I argue no, this is still a bad idea. Redefining nuisance law in this manner gives neighbors an ex post rationale to stop construction, when there is no way to know ex ante whether a specific building will be a nuisance or not.


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Nov 13, 2014

President Obama to Bypass Congress And Defer Deportations for 5 Million

The NY Times reports what has long been rumored to happen–the President is going to excuse five million people from the enforcement of the immigration laws.

President Obama will ignore angry protests from Republicans and announce as soon as next week a broad overhaul of the nation’s immigration enforcement system that will protect up to five million undocumented immigrants from the threat of deportation and provide many of them with work permits, according to administration officials who have direct knowledge of the plan.

Asserting his authority as president to enforce the nation’s laws with discretion, Mr. Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.

That part of Mr. Obama’s plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.

I have rejected the notion that it is within the President’s discretion to offer such wide-ranging relief from the immigration laws. See my article, Gridlock and Executive Power, and my recently-updated essay, The Gridlock Clause.  At this point he is not enforcing the laws with discretion, but not enforcing them at all. It strains credulity to suggest that the only people subject to the laws are those who the President deems dangerous. That goes far beyond the argument that Congress only appropriates a small amount of money for a small number of deportations. The President doesn’t agree with the law Congress passed, and the fact that Congress wouldn’t give him what he wants, so he is doing it anyway.

What is the legal basis here? We’ll find out soon enough, but it is “unassailable.”

Most of the major elements of the president’s plan are based on longstanding legal precedents that give the executive branch the right to exercise “prosecutorial discretion” in how it enforces the laws. That was the basis of a 2012 decision to protect from deportation the so-called Dreamers, who came to the United States as young children. The new announcement will be based on a similar legal theory, officials said.

The White House expects a chorus of outside legal experts to back it up once Mr. Obama makes the plan official. In several “listening sessions” at the White House over the last year, immigration activists came armed with legal briefs, and White House officials believe those arguments will quickly form the basis of the public defense of his actions.


Officials said one of the primary considerations for the president has been to take actions that can withstand the legal challenges that they expect will come quickly from Republicans. A senior administration official said lawyers had been working for months to make sure the president’s proposal would be “legally unassailable” when he presented it.

I wasn’t invited to any of these “listening sessions.”

Further, it is not the case that Congress is gridlocked on such a wide-ranging blanket exemptions:

Many pro-immigration groups and advocates — as well as the Hispanic voters who could be crucial for Democrats’ hopes of winning the White House in 2016 — are expecting bold action, having grown increasingly frustrated after watching a sweeping bipartisan immigration bill fall prey to a gridlocked Congress last year.

But unlike DACA, which missed cloture by one vote, there is no Congressional support for such wide-ranging exemptions. As I wrote in National Review yesterday:

If President Obama expands this non-enforcement to five, six, seven, or eight million immigrants, in the absence of enabling legislation and in the face of congressional opposition, it would stand as a repudiation of his oath to take care that the laws are faithfully executed. The chief executive may not frustrate the laws he dislikes simply by choosing not to enforce them — especially when Congress is on record opposing that change. While the vote on the DREAM Act was quite close, blanket amnesty would be a political non-starter. Here, in the words of Justice Robert H. Jackson in the landmark separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the president’s inherent powers are at their “lowest ebb.”

Finally, the fact is that once these five million people are granted status, no future President will be able to remove it. Call it immigration estoppel. As I wrote in National Review:

While they were not granted formal amnesty, as a matter of policy, future presidents will be hard-pressed to tamper with their “temporary” status.

The Times alludes to this fact. First, the President seems to think this broad-ranging executive action will push Republicans to act.

But the president and his top aides have concluded that acting unilaterally is in the interest of the country and the only way to increase political pressure on Republicans to eventually support a legislative overhaul that could put millions of illegal immigrants on a path to legal status and perhaps citizenship. Mr. Obama has told lawmakers privately and publicly that he will reverse his executive orders if they pass a comprehensive bill that he agrees to sign.

That’s rich. Second, even if Republicans don’t act, a future President will be unable to roll back this status:

Although a Republican president could reverse Mr. Obama’s overhaul of the system after he leaves office in January 2017, the president’s action at least for now will remove the threat of deportation for millions of people in Latino and other immigrant communities. Immigration agents are to instead focus on gang members, narcotics traffickers and potential terrorists.

Short of a blocking the budget, and causing a shut down, I don’t see how this program is stopped. In truth, I don’t even think a shutdown would stop it, because the President would continue not to enforce the law. But his AG candidate may very well not be confirmed. I’m not sure if that is a big enough cudgel.

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Nov 13, 2014

Video: Hobby Lobby and Religious Liberty at University of Houston Law Center

On November 4, 2014, I spoke to the University of Houston Law Center Federalist Society Chapter on religious liberty and Hobby Lobby. Here is the video, and some photos.





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Nov 12, 2014

King v. Burwell, NFIB v. Sebelius, and the Coercive Spending Power

Under the petitioner’s reading of the ACA, states were presented with a choice: (a) establish an exchange, so your residents can receive tax subsidies, or (b) don’t establish an exchange, thereby denying your residents tax subsidies. The former was the carrot, the latter was the stick. In the absence of subsidies, insurance would become unaffordable, millions would drop out of the market, and the insurance markets would go into a tailspin. Let’s assume for a moment this reading is correct (and for purposes of my post, a majority of the Justices would have to agree for this argument to make any sense).

If this is the right reading of the statute, is there really a meanigful choice? Your options are either (a) establish an exchange or (b) make insurance in your states unaffordable, sending your market into an adverse selection death spiral. Under the Medicaid Expansion opinion in NFIB v. Sebelius, would this choice be coercive under the spending power? I think the argument follows from NFIB, though it would require some extension of the doctrine.

Brian Beutler (not Jeff Rosen) sums up the issue:

Because if that’s how you read the statute, then you’re positing that Congress has used its spending power to compel states to set up their own exchanges. But if it’s unconstitutionally coercive for the federal government to say “take this [i.e. Medicaid expansion money], or lose all of your existing federal Medicaid funds,” it might also be unconstitutional for the federal government to say, “do this [i.e. set up an exchange] or we’ll break the insurance markets in your state.”

Rosen notes that several states, that have established exchanges, have argued that the Petitioner’s reading of the ACA would be unconstitutional:

In a similar spirit, several states, including swing states like Virginia and North Carolina, along with conservative redoubts like Arkansas and Mississippi, have argued in an Amicus brief that the challengers’ reading of the statute renders the subsidy scheme unconstitutional because Congress can’t use its spending power to penalize states without a heads up. “Congress must give States clear notice of conditions imposed under Spending Clause statutes,” the brief reads. “But there was no such clear notice here.”

The states seem to use this argument to reject the idea that Congress could have designed the statute to set up a spending clause violation. But this neglects the fact that the Medicaid expansion worked in a very similar function–accept the expansion or stand to lose all of your funding. As I explain in this piece, the Medicaid expansion of Obamacare was designed to punish uncooperative states. Granted, there were some differences between old Medicaid and new Medicaid. But the general idea is the same. Join Obamacare or throw your state into turmoil. Congress was not concerned about the constitutional violation for Medicaid, so why would they be concerned about it for the subsidies. (They weren’t really concerned about any constitutional issues, but see Unprecedented for more details on that).

This argument may be more helpful to petitioner than Respondents. The presence of this issue, which is lurking in the background, could provide an alternate route to victory for King. Follow me here. If there were five votes to find a violation of the Spending Clause, the entire provision would be invalidated. Regardless of whether a state builds an exchange, or not, subsidies cannot be condition on those grounds. Congress could have passed a statute giving subsidies to all states, but they did not. In the absence of a new statute, no subsidies could be paid out to any state residents. That is effectively what the joint dissent did in NFIB–invalidate the Medicaid expansion, even for those states that wanted to join. Texas and California would be equally exempt.

But the Chief Justice, along with Justices Breyer and Kagan, did something else. Rather than invalidating the Medicaid expansion as applied to all states, they split the difference. States could choose to opt in would. States that did not want to opt in would not. They chose a narrow approach that gave states an option. Texas could stay out, but California could join.

The spending clause option presents similar dynamics. If there are five votes who find that the choice between setting up an exchange or going into a death spiral is coercive, that would be a broad judgment that affects all states. But, a more narrow option remains. Simply invalidating the IRS rule (the relief King seeks) leaves the statute in place, and those states that have established an exchange would still be able to receive subsidies. Texas would not be bound, but Californians would receive subsidies.

Jeff Rosen alludes to this, calling it a JGR middle finger:

But if the Court’s reading of the subsidy scheme renders the statute unconstitutionally coercive or injurious, then, per U.S. v Booker, the Court should ask “what ‘Congress would have intended’ in light of the Court’s constitutional holding.” And in so doing, Roberts et al would probably have to make the establishment of an exchange optional, with no penalty for using the federal fallback, just like they did when they made the Medicaid expansion optional. Along similar lines, Roberts could find for the government by invoking the principle that the Court ought to interpret the statute in a plainly constitutional way, rather than trespass into difficult constitutional questions.

The beauty of this scenario is that in addition to being a logically and intellectually consistent conclusion for Roberts to reach, it would also raise an elegant middle finger to all of the people on the right who called his integrity into question after he saved the ACA. I wouldn’t bet on this outcome. But let’s hope he doesn’t read this article anyhow.

I don’t think this answer is crazy. If there are five votes to expand NFIB, and find a spending clause violation, the Court could act moderate and only invalidate the rule. And in truth, striking down the rule here will not serve as much of a precedent for any future cases. But, for the Chief to lay down some spending clause dicta may be keeping with his commerce clause dicta in NFIB. Maybe we’ll get another 4-1-4.

This term, and my next book, is shaping up to be more interesting every day.

Update: I dashed this post off before running to catch a flight, and I missed an important point which makes most of this argument incorrect. If the Court invalidates the IRS rule, then all we are left with is the coercive statute. In other words, the IRS rule obviates the coercion problem. I’ll leave the post up as is, but please read it with this caveat.

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Nov 12, 2014

Detainee Released From Guantanamo To Attend “Yearlong Rehabilitation Program”

In Charlie Savage’s report about the Kuwaiti detainee, recently released from Guantanmo, we learn this interesting fact about his future accommodations:

In an agreement with the Kuwaiti government, Mr. Odah, whose name is sometimes spelled Fouzi al Awda, will now live in custody there as part of a yearlong rehabilitation program, officials said.

What is this rehab program? Charlie tweeted links to leaked cables that discuss these Rehab centers.

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Nov 12, 2014

New Article in National Review: “The Gridlock Clause”

National Review has published an updated version of my essay from the September 8 edition, “The Gridlock Clause.” This article is based on my law review article, “Gridlock and Executive Power,” which I plan on submitting for the Spring Law Review cycle.

I revised the essay to include recent developments in the immigration debate, with a focus on DACA and whatever executive action the President has in mind. I try to place Congressional opposition to the President’s plans, and the pursuant gridlock, in terms of Youngstown, and how how it impacts the President’s executive powers. In short, the President’s prosecutorial discretion is at its “lowest ebb” when Congress openly opposes the policy which (arguably) requires statutory authorization.

Here is the introduction:

Since 2010, when the Democrats lost their majority in the House and their filibuster-proof majority in the Senate, President Obama’s ability to pursue legislative changes has ground to a halt. With the Republicans taking control of the Senate in January, we can expect to see many more headlines blaring that the “do-nothing Congress” has passed the fewest laws in decades. But that gridlock hasn’t halted the president’s plans to implement his policies. In fact, he claims it has strengthened his power to act alone — if Congress won’t act, he can, and will.

President Obama routinely cites Congress’s obstinacy regarding his agenda as justification for a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.

Here are the new paragraphs I added concerning immigration, which views prosecutorial discretion along a spectrum of taking care that the laws are faithfully executed. Wide-ranging amnesty, in the absence of statutory authorization, would be an affront to that constitutional duty of the first order.

The administration justified the policy as a reprioritization of immigration enforcement. But the scale of this “discretion,” in the absence of any antecedent legislation for the Dreamers, was unprecedented. There is nothing inherently unconstitutional about prosecutorial discretion; it is virtually impossible for the executive to prosecute all immigration offenses. Beyond logistical difficulties, Congress simply does not appropriate nearly enough funds to deport everyone who is here unlawfully. But there is a stark difference between prioritizing some deportations over others due to administrative concerns and choosing not to enforce the deportation power against a class as a means to adopt a policy that Congress opposed. Prosecutorial discretion exists along a continuum. DACA represented a quantum leap across the spectrum, as a million people whom Congress chose not to protect were protected from the immigration laws. While they were not granted formal amnesty, as a matter of policy, future presidents will be hard-pressed to tamper with their “temporary” status. …

Throughout the summer recess, rumors swirled that the president would grant legal status to many millions more, including relatives of the Dreamers. Ultimately — much to the chagrin of immigrant groups — the issue was not urgent enough to resolve before the election, as that would have put vulnerable Senate races in jeopardy. But now that the president is entering his final two years, with his party controlling neither house of Congress and no momentum for immigration reform, the circumstances are ripe for further unilateral executive action. Recent reports suggest the president will unveil his plan, whatever it is, in December.

If President Obama expands this non-enforcement to five, six, seven, or eight million immigrants, in the absence of enabling legislation and in the face of congressional opposition, it would stand as a repudiation of his oath to take care that the laws are faithfully executed. The chief executive may not frustrate the laws he dislikes simply by choosing not to enforce them — especially when Congress is on record opposing that change. While the vote on the DREAM Act was quite close, blanket amnesty would be a political non-starter. Here, in the words of Justice Robert H. Jackson in the landmark separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the president’s inherent powers are at their “lowest ebb.”

The article is currently leading the homepage of


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Nov 12, 2014

Prop1 Class 23 – Landlord-Tenant Relationship II

The lecture notes are here and the live chat is here.

Here is a photograph of the historical Victoria Centre in Indianapolis.

The Victoria Center, one of Indianapolis’ preservation success stories, has been around in its current incarnation for nearly 30 years. What is actually a melding of two historic buildings (the Marrott’s Shoes Building c.1900 and the Lombard Building c.1892); the preservation of the facades and rehabilitation of the interiors were finished in 1984 by the Realty Investments Company out of Silver Springs, Maryland.




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Nov 12, 2014

Prop2 Class 23 – Regulatory Takings I

Today, we will cover the two main regulatory takings case, both of which involve the word Penn–Penn Coal v. Mahon and Penn Central v. NYC.

The lecture notes are here, and the live chat is here.

Subsidence describes the proces whereby land shifts down due to under-ground mining.

This image courtesy of Wikimedia illustrates subsidence:

Here are photographs of Grand Central station, the site of the famous Penn Central Transportation Company v. City of New York.













When teaching Penn Central Co. v. NYC, it is very important to stress that the proposed construction atop Grand Central Station must be viewed in the context of the then-recently built Pan-Am Building (now the Met Life building). 

Here is a map of where Grand Central Station is located:

View Larger Map

The Pan-Am Building stands immediately behind Grand Central Station, and blocked any conceivable view of downtown Manhattan. The Commission noted that building above Grand Central would cut off “the dramatic view of the Terminal from Park Avenue South.”




To give you a sense of where Grand Central is, and how it would fit into the city, this diagram is helpful:

Here are blueprints of the two proposed designs to build above Grand Central. The first design, Breur I, would have preserved the exterior and built a tower. “The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal.”

The second design, Breur II, would have stripped the facade and built the tower. “The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building.”

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Nov 11, 2014

President George W. Bush on Justices Souter, Thomas, Roberts, And Alito

In his new memoir about his father, 41, President George W. Bush weighs in on the Justices he, and his father appointed to the Supreme Court.

On Justice Souter, 43 heaps even more opprobrium on John Sununu:

Like Presidents before him, Dad also had an opportunity to influence the third branch of government, the judiciary. He replaced Supreme Court Justices William Brennan and Thurgood Marshall, two of the most liberal Justices of the twentieth century, with David Souter and Clarence Thomas. Souter, a former New Hampshire Supreme Court Justice recommended by John Sununu and Senator Warren Rudman, unexpectedly turned out to be almost as liberal as Brennan and Marshall.

Bush calls Thomas “one of hte most consistent and principled Justices.”

Clarence Thomas, an African-American who had grown up in rural poverty in Pin Point, Georgia, before working his way through Holy Cross College and Yale Law School, emerged as one of the most consistent and principled Justices of the Supreme Court.

And Thomas endured “one of the most unfair confirmation proceedings.”

To join the Court , Justice Thomas endured one of the most unfair confirmation proceedings in the history of the Senate. The focus of the hearings quickly turned away from his legal qualifications and judicial opinions to vicious personal smears. Democrats in the Senate called a parade of witnesses to impugn the nominee’s character with lurid details about alleged sexual harassment— a shameful display that Clarence Thomas rightly described as a “high-tech lynching.” During the hearing, the pressure to withdraw the nomination was enormous. I knew George Bush would never abandon a good man like Clarence Thomas.

And we gain this insight into the President’s mind during the confirmation process:

I remember talking to him after watching the coverage of the hearings on TV.

“This Thomas stuff is getting pretty nasty,” I said.

“You know what, son,” he said, “the worse they treat him, the more determined I am to get him confirmed.”

Dad meant what he said. After a lot of lobbying and hard work, the Senate confirmed Justice Thomas fifty-two to forty-eight, with eleven Democrats voting in his favor.

Next, 43 turns to his own experiences selective Justices. We can confirm that in 2005 he invited 5 Jurists for interviews. In his previous book, Decision Points, he wrote they were Samuel Alito, Edith Brown Clement, Michael Luttig, John Roberts, and J. Harvie Wilkinson.

Watching my father’s experience with Supreme Court nominations proved beneficial when I had the opportunity to appoint new Justices. I learned that it is essential for a President to fully vet nominees. Early in my presidency, I directed my counsel’s office to research potential Supreme Court nominees . When Justice Sandra Day O’Connor announced her resignation in 2005, I invited five jurists for one-on-one interviews at the White House Residence.

He wanted to check if their “philosophy would change with time.”

I had reviewed their judicial philosophies; what I really wanted to learn was their character and whether their philosophy would change with time. While all the candidates were outstanding, I was especially impressed by Judge John Roberts, a generous and humble man who had argued dozens of cases before the Supreme Court and was widely considered one of the best lawyers of his generation. I first nominated John for Justice O’Connor’s seat and later resubmitted his nomination for Chief Justice Rehnquist’s seat after the Chief Justice died.

The verdict is still out if JGR fits the mold. As for Alito, GWB hit it off due to a shared love of baseball.

For Justice O’Connor’s seat, I chose Sam Alito, a soft-spoken and brilliant judge whose love of the law was matched only by his passion for the Philadelphia Phillies.

Bush is still proud of both of them.

Both men have done me proud during their time on the Court.


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Nov 11, 2014

Video: “Collective Liberty” at Loyola Chicago Constitutional Law Colloquium

I recently gave a talk at the fantastic Constitutional Law Colloquium on a topic I’ve been developing, called “Collective Liberty.” Much of my talk uses the divide within the ACLU over McCutcheon as a lens to explain diverging views of the protection of free speech when it contrasts with what I broadly term “social justice.” Here is the abstract of the paper, and a video of my talk:

In McCutcheon v. FEC, Justice Breyer referred to the freedom of speech, not only as an “individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” This notion of a collective First Amendment was emphatically rejected by the majority opinion that explained that “the First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.” Chief Justice Roberts retorted, “there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.”

The conflict between individual liberty and collective liberty is not new. But, Justice Breyer’s opinion may signal a shifting trend in broader thought on speech, and liberty more generally, on the left. This is evident in the ACLU’s decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the dissent offers a “very troubling vision of free expression” and is “deeply disquieting.” With respect to speech, modern-day liberalism seems to be drifting away from protecting individual freedom, and more towards constitutionality guaranteeing equality.

Historically, liberals favored broad conceptions of individual rights, with respect to protecting obscene and unpopular speech, minority religious groups, the right to private association, and others. But in recent years there has been a switch in positions. Now, conservatives advocate robust views of individual expression to promote corporate and campaign speech. Liberals, as exemplified by Justice Breyer’s dissent advocate for free speech that serves a collective good. Today, conservatives rely on a broad reading of RFRA, a law designed to protect the rights of religious minority groups, to justify denying contraceptives to employees under the Affordable Care Act. While once the membership lists of the NAACP, and the right to privately associate were held sacrosanct, today liberal groups seek to unmask those who signed petitions opposing gay marriage. Not quite fitting into that mold, but consistent, is the Second Amendment: viewed by conservatives as an individual right, and viewed by liberals as a collective right.

Collective Liberty chronicles the juxtaposition of positions among liberals and conservatives between collective, and individual views of rights, and explains what this means for the First Amendment on the Roberts Court.

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Nov 11, 2014

If you have $80,000 to Drop, a First Edition of The Federalist Is Up For Auction

first-federalistThis First Edition of the Federalist is up for auction for the low, low price of $80,000.

Lot 152
The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787
. New-York: Printed and sold by J. and A. M’Lean, 1788. First edition, signed on the title of volume I by Michael Hillegas, first Treasurer of the United States. Two volumes. Volume I in red gilt lettered library cloth, volume II in black gilt lettered library cloth. Vol. I: 6 1/2 x 3 7/8 inches (16.5 x 9.8 cm), retains 3 front blanks (the first with an early printed slip affixed attributing the essays, see below), vi, 227 pp. 2 rear blanks; Vol. II: 6 3/8 x 3 3/4 inches (16.2 x 9.5 cm), later blank, vi, 384 pp., rear blank, entry LXX misprinted as “LXXX” on page 240, the Constitution printed at end. The title page signed faintly in ink by Hillegas and with neat ink initials attributing the first ten essays likely in Hillegas’ hand. Internally, a very fresh and clean copy with minor flaws including some chipping to blanks and minor chipping to titles, faint ownership stamps of the Bar Association to titles as well as two very small and faint stains to title, faint numbers stamped on final leaf of Vol II, very intermittent short closed tears to a few margins, some toning, Cc3 in vol 2. with a small repair.

A superb association: this copy bears the signature of patriot Michael Hillegas, who had overseen the finances of the American Revolution and was the first Treasurer of the United States in the period before the ratification of the Constitution and the appointment of Alexander Hamilton as the first Secretary of the Treasury. Michael Hillegas (1729-1804) was Philadelphia born and served ten years in the General Assembly before being elected in 1775 to the Pennsylvania Committee of Safety alongside Benjamin Franklin. Hillegas and Franklin were frequent correspondents, especially during Franklin’s tenure in Paris during the Revolution. In 1776, Hillegas and George Clymer were jointly named Treasurer of the United Colonies, but Clymer left the post shortly thereafter to become a delegate to the Continental Congress. Hillegas remained Treasurer for the duration of the war and the period immediately following, his title changing in 1783 from Continental Treasurer to United States Treasurer. It was not until late 1789, after the appointment of Hamilton as the first Secretary of the Treasury, that Hillegas was replaced.
The Federalist presents the arguments for ratification in essays by Hamilton, Madison and Jay, though Hamilton is often viewed as the key promoter of Federalism. Thus, the present is a highly evocative and germane association copy of The Federalist for its tangible link between the fledgling governments of the Revolution, the Congress of the Confederation, and the creation and adoption of the Constitution, which ushered in the Federal era. While Hamilton is most associated with the establishment of the Treasury Department, the fourteen year service of Hillegas cannot be diminished as he oversaw the payment of the Continental Army, the collection of taxes during the Revolution, the payment of Franklin and other agents of the United States while abroad, and other difficult tasks associated with fiscally uniting the colonies into states. An interesting feature of this copy is the neatly penned initials of the authors of the first ten essays, a feature noted by Church in Hamilton’s own copy of the book. Also present is an early printed slip addressed to a Mr. Oldschool (likely excised from acirca 1804 newspaper) attributing the essays as per the notations found in Hamilton’s copy of The Federalist upon his death. Important association copies of the work are scarce at auction particularly when the owner was as prominent as Hillegas. Sabin 23979; Howes H114; Printing and the Mind of Man 234; Church 1230; Evans 21127; Streeter Sale 1049.

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Nov 10, 2014

Rand Paul: ISIS War is Illegal and “We can’t be for the rule of law at our own convenience.”

Citing Bruce Ackerman, Sen. Rand Paul argues that the war against ISIS is illegal.

Yale Professor Bruce Ackerman puts it succinctly: “The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end ‘hostilities’ within 30 days if he failed to do so. This 90-day clock expired this week.” And yet, there’s been no consent, and no end to the fighting.

I believe the president must come to Congress to begin a war. I also believe the War Powers Act is misunderstood; President Obama acted without true constitutional authority even before the 90 days expired, since we were not under attack at that time.

But in either case, this war is now illegal. It must be declared and made valid, or it must be ended.

Congress has a duty to act, one way or the other.


But perhaps more importantly, he seeks consistency with respect to the rule of law when Republicans and Democrats approach the executive powers.

Conservatives have rightly decried President Obama’s unconstitutional executive action on Obamacare—and his promises to do the same with immigration. With both branches of Congress now under Republican control, we should act to halt those power grabs, too.

But conservatives can’t simply be angry at the president’s lawlessness when they disagree with his policies. They should end their conspicuous silence about the president’s usurpation of Congress’ sole authority to declare war—even if (especially if) they support going after ISIS, as I do.

This is important. We can’t be for the rule of law at our own convenience. It matters how we act both when we agree and when we disagree with the president.

Conservatives who blast the president for ignoring the separation of powers on immigration display a fatal inconsistency by embracing unlimited war-making powers.

Paul, in calling John Yoo an apologist, blasts those who favor unlimited presidential war powers:

Conservatives should realize, though, what unfettered presidential power means. Proponents of this theory argue that congressional laws cannot limit the president’s power to perform warrantless searches, carry out wiretaps, detain perceived enemies of the state, or even torture people—not just of enemy soldiers, but American citizens not engaged in combat.

Apologists for unlimited presidential war power, like former Bush administration official John Yoo, claim that no law “can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” Yoo further argues for unchecked executive power by claiming that the explicit constitutional power for Congress to declare war is really not a check at all. In a remarkable work of double-speak, Yoo writes that the Declare War Clause does not grant Congress any power to initiate war, but only the “judicial power” to recognize whether “the nation was [already] in a legal state of war” for purposes of “domestic” law.

And for good measure, Paul gets a serious dig in at John Kerry, who in case you didn’t know served in Vietnam:

Secretary of State Kerry became famous as an anti-war liberal decades ago, when he asked Congress “who will be the last to die for a mistake.”

That same man is now probably the most visible liberal proponent of unlimited war-making powers, as a member of this administration.

When I asked him at a Senate Foreign Relations Committee hearing how on God’s green Earth a resolution to use force against the perpetrators of  9/11 in Afghanistan could be construed to apply to the Islamic State in Iraq in 2014, he replied that it didn’t matter. The president could justify basically any war making as an “Article II” power. …

This argument is vital to a larger argument: Do we obey the rules set up to constrain government or not? Do we survive as a constitutional republic, or not?

Prominent Republicans from the interventionist wing of the party parrot and applaud Kerry’s position. If ever there was too much bipartisanship, it would be the bipartisan acceptance of unlimited presidential war-making power.

This is not George W. Bush’s Republican party.

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