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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Appearance on Fox News Channel to Discuss U.S. v. Texas

January 24th, 2016

On Saturday I appeared on the Fox News Channel to discuss the Court’s consideration of U.S. v. Texas. I also got a question about FantasySCOTUS, which was a treat.

 

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Fox News Channel Saturday at 2:20 To Talk About Immigration

January 22nd, 2016

Unless I got bumped (which happened last week with Iran), I should be on the Fox News Channel on Saturday at 2:20 ET to discuss the Supreme Court’s grant in U.S. v. Texas.

Only One Candidate Responded to Charlie Savage’s 2016 Executive Power Survey

January 22nd, 2016

As he did in 2007 and 2011, New York Times reporter Charlie Savage sent an executive power survey to each of the Presidential campaigns. In 2007, 9 out of 12 campaigns replied, including McCain and Obama. In 2011, 5 out of 7 campaigns replied, including Romney. In 2015, out of 10 campaigns, only one responded: Rand Paul. I will let you draw your own inferences from Savage’s observation about why the rest did not reply, but I will say that I am proud that Sen. Paul did reply. Also, as noted in Paul’s response, I am on the Rand Paul Law Professor Advisory Committee, and contributed to the positions taken, though I stress that I do not personally share all of the views in the survey.

Sen. Paul’s answer for why he submitted the survey speaks for itself:

Over the last decade we have seen the power of the President increase dramatically by Congress’s unconstitutional delegation of power to the executive branch and by unconstitutional claims of authority by the President. Because our Founders recognized that unbridled power can corrupt anyone, they enshrined a system of government separated powers among three co-equal branches and between the federal government and the states, thereby preventing too much power being held in the hands of the few. Because we have strayed far from their design, we are today witness- ing the corruption and abuses they sought to avoid.

When the President and executive branch officials employ the discretion that has too often been given to them by Congress – or claim powers that exceed even this vast delegation — we have moved away from the rule of law and into a government of unrestrained regulation proffered by the unelected elite. If we are to have a truly free, equal, and just society, we must restore the balance of power in Washington.

I am willing to answer these questions because I seek to restore our constitutional system of separation of powers, which allows the American people to decide how they are to be governed and creates a diverse and free nation that empowers individuals to make the most out of their lives as they see fit.

In particular, I’d like to highlight Sen. Paul’s statement on prosecutorial discretion (the first question Savage asked).

All of the President’s authority, including over prosecutorial discretion, can derive only from acts of Congress, or from the Constitution itself. When Congress does not appropriate enough funding for the President to strictly enforce every law, this constitutes a delegation of power to the President to set enforcement priorities. However, the Constitution imposes a duty on the President to “take care that the laws be faithfully executed.” The Take Care Clause imposes on the President a requirement to act in good faith. To use the discretion granted by Congress for the purpose of undercutting the laws enacted by Congress is to act in bad faith. For this reason, the President cannot systematically exclude an entire class of people from enforcement or—as President Obama has repeatedly done—turn individualized discretion into a rubber stamp, effectively exempting millions from the rule of law. These faux-priorities are designed to bypass Congress and such a motive for exercising presidential discretion constitutes bad faith. Moreover, publicly announcing a policy of non-enforcement provides undermines Congress. When Congress enacts a law given limited enforcement resources, it expects that the deterrent threat of prosecution—however unlikely—will compel compliance with the law. For these reasons inaction with the purpose of bypassing Congress and undermining its enactments constitutes an abdication of the Chief Executive’s statutory responsibilities, a breach of the separation of powers, and a violation of the President’s duty under the Take Case Clause.

I hope the next President adopts a similar position.

In a campaign that has been a wild ride, I am proud of my colleagues who worked with the campaign to submit this letter for the public.

Update: Savage told me that he also sent it a total of 16 campaigns–6 of which were not mentioned in the article–including Walker, Graham, Huckabee, Santorum, Fiorina and Webb.

Update 2: Eric Posner writes that no one really cares about limits on presidential power, unless the President is of a different party:

The major presidential candidates refused to answer Savage’s survey of their views about executive power. Why not? They did in 2011 and 2007. The survey was designed from the beginning to force candidates to acknowledge limits on their power if elected. Savage, like most commentators, has persuaded himself that Americans think that presidents have too much power. He made his name by documenting Bush-era executive-power abuses, and he has just published a book about Obama’s abuses as well. But it seems to be dawning on him that Americans want limits on executive power only when they don’t like the president in office. Today, Republicans complain about presidential power; eight years ago, Democrats complained. The opposition is tactical, skin-deep, which is why serious limitations on executive power—either self-imposed in response to public opinion, or imposed by the other branches—will not take place anytime soon. Americans want a strong president to solve their problems, and the candidates know this.

Clinton: “l’ll appoint Supreme Court justices who recognize that Citizens United is bad for America”

January 22nd, 2016

In a CNN op-ed, Hillary Clinton has once again reiterated her Citizens United litmus test for appointing a Justice to the Supreme Court.

That starts with reversing Citizens United. And that’s where my comprehensive plan to restore common sense to campaign finance begins. As president, I’ll appoint Supreme Court justices who recognize that Citizens United is bad for America. And if necessary, I’ll fight for a constitutional amendment that overturns it.

Her first option is to appoint a Justice who will reverse it. That will take 51 votes in the Senate. (Don’t pretend for a second she will keep the filibuster in place). Option two is to  persuade 2/3 of both Houses of Congress, and 3/4 of the states to ratify an amendment. I think Option 1 is easier. Really, if you can’t persuade 51 Senators, an amendment is a nonstarter. Although, it would be a first for a President to overturn a constitutional decision that went against her.

I will eventually write something about the insanity of Sanders and Clinton openly imposing litmus tests on Justices. After decades of ranting about Roe v. Wade litmus tests, we have devolved to this. The current state of American politics is bewildering on all fronts.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here, here, here, here, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

Donald Trump Tweets about Eminent Domain, Natural Born Citizens, and the Naturalization Act of 1790

January 22nd, 2016

Just another day in the race for the White House.

Disclosure: I advise the Rand Paul campaign.