Blog

In 2017, I published (or have placed) 6 law review articles, delivered 7 academic presentations, given 50 lectures, written 62 pieces of commentary, and had 461 media hits. In addition, I released the Third Edition of Barnett/Blackman constitutional law casebook and a paperback edition of Unraveled. Plus, I have been involved in the Emoluments Clauses litigation, as well as the ongoing Defense Distributed litigation. Of course, these activities were on top of teaching two sections of Constitutional Law, one section of Property I, and one section of Property II. This was, by far, my busiest year to date. In contrast, in 2016, I had 35 pieces of commentary and 180 media hits. I look forward to an even greater 2018.

All of my accomplishments since 2009 can be found on my CV.

Law Review Articles

1. Self-Plagiarism, 45 Florida State Law Review __ (2018).
2. Presidential Maladministration, 2018 Illinois Law Review __ (2018)
3. Predicting the Behavior of the Supreme Court of the United States: A General Approach, PLOS One (April 12, 2017) (Peer Reviewed) (with Daniel Martin Katz & Michael James Bommarito II).
4. Reply: A Pause for State Courts Considering Model Rule 8.4(G) The First Amendment and “Conduct Related to the Practice of Law,” 30 Georgetown Journal of Legal Ethics 241 (2017).
5. Foreword: SCOTUS After Scalia, 11 NYU Journal of Law & Liberty 48 (2017).
6. The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump, 95 Tex. L. Rev. See Also 18 (2017).

Academic Presentations

1. Religious Liberty before and after Marriage Equality, The Role of Religion in Free Society, Classical Liberal Institute, NYU Law School (Nov. 10, 2017).
2. Lessons from the Failed Garland Nomination, Southeastern Association of Law School Conference (Aug. 2, 2017).
3. Presidential Maladministration at Federalist Society Junior Scholars Colloquium (Audio).
4. Sanctuary Cities and the Constitutionality of 8 U.S.C. 1373, Santa Clara Law Review Symposium (April 21, 2017) (Video).
5. “AALS Hot Topic Program: New Frontiers in Reproductive Rights and Justice,” Association of American Law Schools Annual Meeting (Jan. 6, 2017) (Video).
6. “Presidential Maladministration,” Federalist Society Annual Faculty Conference (Jan. 5, 2017) (Video).
7. “AALS Hot Topic Program: Federal Power Over Immigration,” Association of American Law Schools Annual Meeting (Jan. 5, 2017) (Video).

Lectures

1. Tarant County Federalist Society: The Trump Administration and the Separation of Powers (Dec. 8, 2017).
2. Legal Ethics, Harassment and Discrimination: The Role of the Rules, Administration Office of Pennsylvania Courts (Nov. 16, 2017).
3. Legal Ethics, Harassment and Discrimination: The Role of the Rules, The David E. and Constance B. Girard diCarlo Center for Ethics, Integrity and Compliance (Nov. 16, 2017).
4. Free Speech on College Campuses, Texas Southern University Federalist Society Chapter (Nov. 1, 2017).
5. Debate on Travel Ban, University of Houston Federalist Society & ACS Chapter (Oct. 30, 2017).
6. Panel on Collective Liberty at UNLV Federalist Society Chapter (Oct. 25, 2017).
7. Debate on the Travel Ban at University of Michigan Law School Federalist Society Chapter (Oct. 23, 2017).
8. Supreme Court Roundup at South Texas College of Law Houston Federalist Society Chapter (Oct. 19, 2017).
9. Discussion of the Travel Ban at the UMass Law Federalist Society (Oct. 13, 2017).
10. The Establishment Clause and Immigration Law, Roger Williams Law Review Symposium (Oct. 13, 2017).
11. Debate on the Travel Ban, Georgetown Federalist Society Chapter (Oct. 11, 2017).
12. Debate on the Travel Ban, George Mason Federalist Society Chapter (Oct. 10, 2017).
13. “The Legal Resistance,” Faulkner Law Review Symposium (Oct. 3, 2017).
14. Lecture on the Travel Ban at the University of Tennessee-Knoxville Federalist Society Chapter (Oct. 2, 2017).
15. Address on the Supreme Court and the Second Amendment at the Gun Policy Rights Conference (Oct. 1, 2017).
16. Discussion on the Travel Ban at Indiana University McKinney School of Law Federalist Society Chapter(9/27/17).
17. Debate on the Travel Ban, San Diego Federalist Society Chapter (Sept. 14, 2017).
18. Panel Discussion on the Travel Ban, Duke Law School Federalist Society Chapter (Sept. 11, 2017).
19. Original Defiance and Later Acquiescence, South Texas Law Review Symposium (Sept. 8, 2017).
20. Debate on the Travel Ban, Willamette Federalist Society Chapter (Aug. 30, 2017).
21. Discussion of Obamacare at Houston Dermatological Association (August 7, 2017).
22. Discussion of Obamacare repeal at Houston Property Rights Association (July 28, 2017).
23. Supreme Court Roundup at University of Houston Law Center (July 27, 2017).
24. Discussion on Obamacare at the Houston Downtown Pachyderm Club (July 27, 2017).
25. “The Spending Clause,” Texas Attorney General’s Conference on Constitutional Law (July 19, 2017).
26. Discussion on immigration at the Houston Downtown Pachyderm Club (July 13, 2017).
27. “Unraveled: Obamacare, Religious Liberty and Executive Power,” Houston Federal Bar Association (May 25, 2017).
28. Unraveled: Obamacare, Religious Liberty, and Executive Power, Waller County GOP Dinner (Apr. 28, 2017).
29. Free Speech on Campus, University of Massachusetts Law School Federalist Society Chapter (April 24, 2017) (Audio).
30. Free Speech on College Campuses, University of Massachusetts School of Law Federalist Society Chapter (Apr. 24, 2017) (Post, Audio).
31. “Unraveled: Obamacare, Religious Liberty and Executive Power,” St. John’s Federalist Society Chapter (Apr. 10, 2017).
32. “The Saving Construction at 5 Years,” St. Thomas Journal of Law & Public Policy Symposium (Mar. 31, 2017) (Video).
33. “The Travel Ban Litigation,” at the South Texas College of Law International Law Society (Mar. 30, 2017) (Audio).
34. Guest of Magic Circle Republican Women’s Club to discuss the travel ban litigation (Mar. 27, 2017) (Audio).
35. Free Speech on College Campuses, Barry University Federalist Society (Mar. 20, 2017).
36. Unraveled: Obamacare, Religious Liberty, and Executive Power at Houston Pachyderm Club (Mar. 14, 2017).
37. Panelist at National Constitution Center event on the Future of the Affordable Care Act (Mar. 6, 2017) (Video).
38. Debate on ABA Model Rule 8.4(g), Cardozo Law School Federalist Society Chapter (Mar. 6, 2017) (Audio).
39. The Constitutionality of the Travel Ban, Faulkner Federalist Society (Feb. 28, 2017) (Post, Audio).
40. “The Future of Federalism,” event co-sponsored at the Georgetown University Law Center by the National Constitution Society, the Georgetown Federalist Society, and the American Constitution Society (Feb. 23, 2017) (Audio).
41. “Unraveled: Obamacare, Religious Liberty and Executive Power,” Hoover Institution D.C. Office (Feb. 23, 2017) (Video).
42. Unraveled: Obamacare, Religious Liberty, and Executive Power, Florida State Federalist Society Chapter (Feb. 22, 2017) (Video).
43. University of Houston Federalist Society Chapter (Feb. 13, 2017). (Video)
44. Panelist on An Evening with Legendary Supreme Court Journalist Tony Mauro, The Mustang Bar Alumni Association (Jan. 31, 2017). (Audio)
45. Prediction Markets, Rice Federalist Society Chapter (Feb. 2, 2017).
46. “Religious Liberty for Doctors,” 9th Annual Conference on Jewish Medical and Legal Ethics, (Jan. 26, 2017) (Audio).
47. “The Fate of Obamacare“, University of Pennsylvania Federalist Society (Jan. 25, 2017) (Video).
48. “Bioethics and the Constitution,” Bioethics after the Holocaust, Houston Methodist Research Institute (Jan. 23, 3017) (Video, Audio, Slides).
49. Federalist Society Winter Counsels Summit (Jan. 14, 2017).
50. “The Future of the Supreme Court,” Baylor Law School Federalist Society Chapter (Jan. 10, 2017) (Audio).

Commentary

1. The Ninth Circuit Previews Why Article II Will Save The Travel Ban, Lawfare (Dec. 26, 2017).
2. A Better Way To Give Trump More Judgeships To Fill, National Review (Dec. 18, 2017).
3. Obstruction of Justice and the Presidency: Part III, Lawfare (Dec. 18, 2017).
4. Obstruction of Justice and the Presidency: Part II, Lawfare (Dec. 12, 2017).
5. For Judges, ‘Legality’ Is Their Only ‘Reality’, Lawfare (Dec. 11, 2017).
6. Obstruction of Justice and the Presidency: Part I, Lawfare (Dec. 5, 2017).
7. Can the President Obstruct Justice?, Politico Magazine (Dec. 4, 2017).
8. Republicans Should Not Pack The Courts, National Review (Nov. 27, 2017).
9. Richard Cordray’s Tempest in a Teapot, National Review (Nov. 27, 2017).
10. Let’s Settle the Legality of DACA Now, National Review (Nov. 22, 2017).
11. Is Trump Restoring the Separation of Powers?, National Review (Nov. 20, 2017).
12. College students should learn from the Supreme Court: Free speech protects everyone, Washington Times (Oct. 25, 2017).
13. The Travel Ban and the Rational Basis Test, Lawfare (Oct. 23, 2017).
14. Jeff Sessions Restores the Rule of Law, National Review (Oct. 16, 2017).
15. The ‘Resistance’ vs. George Washington, Wall Street Journal (Oct. 15, 2017) (with Seth Barrett Tillman).
16. A Nonchalant Conclusion to Trump v. IRAP, Lawfare (Oct. 13, 2017).
17. The Legal Resistance to President Trump, National Review (Oct. 11, 2017).
18. The emoluments clauses litigation, part 5 — problems with the complaints in CREW v. Trump, Washington Post (Oct. 1, 2017).
19. The emoluments clauses litigation, part 4 — an emolument is the “profit derived from a discharge of the duties of the office”, Washington Post (Sept. 29, 2017).
20. The emoluments clauses litigation, Part 3 — so what if the president does not hold ‘Office … under the United States’?, Washington Post (Sept. 28, 2017).
21. The Emoluments Clauses litigation, part 2 — the practices of the early presidents, the first Congress and Alexander Hamilton, Washington Post (Sept. 26, 2017).
22. Reality Sets in for Federal Courts: The Travel Ban Was a ‘Temporary Pause’, Lawfare (Sept. 25, 2017).
23. The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and offices, Washington Post (Sept. 25, 2017).
24. Trump Talks, Schneiderman Sues, Wall Street Journal (Sept. 13, 2017).
25. Trump’s DACA Decision Defies All Norms, Foreign Policy (Sept. 7, 2017).
26. ‘Neutral Principles’ and the ‘Presumption of Regularity’ in the Era of Trump, Lawfare (Sept. 7, 2017).
27. Collateral Damage: The Arpaio Pardon and Separation of Powers, Lawfare (Aug. 30, 2017).
28. The Solitary Executive, Lawfare (August 18, 2017).
29. The Solitary Executive, Foreign Policy (August 18, 2017).
30. Congress Should Fund Obamacare Subsidies — or Trump Must Stop Them, National Review (August 17, 2017).
31. The First Amendment on the Grounds in Charlottesville, Lawfare (August 14, 2017).
32. President Trump Must End Illegal Obamacare Payments to Congress and Insurers, National Review (July 31, 2017).
33. Yes, Trump Can Accept Gifts, New York Times (July 13, 2017) (with Seth Barrett Tillman).
34. Understanding the Supreme Court’s equitable ruling in Trump v. IRAP, SCOTUSBlog (July 12, 2017).
35. A Federal Judge Halts California’s Confiscation of High-Capacity Magazines, Fox Nation (July 3, 2017).
36. A Federal Judge Halts California’s Confiscation of High-Capacity Magazines, National Review (July 3, 2017).
37. Quick Decision on Health-Care Law, National Review (June 27, 2017).
38. The Scope of the Supreme Court’s Decision in IRAP v. Trump, Lawfare (June 27, 2017).
39. Six Possible Options for the Supreme Court’s Review of the Travel Ban, Lawfare (June 24, 2017).
40. America Needs Closure on the Travel Ban, N.Y. Times (June 11, 2017).
41. Senate Republicans put Trump on notice, Politico Magazine (June 8, 2017).
42. All The President’s Tweets, Lawfare (June 5, 2017).
43. Analysis of IRAP v. Trump Part V: Judge Shedd and Judge Agee’s Dissents, and the Government’s Petitions for Certiorari and Applications for Stay, Lawfare (June 2, 2017).
44. Analysis of IRAP v. Trump Part IV: Judge Niemeyer’s Dissent, Lawfare (June 2, 2017).
45. Analysis of IRAP v. Trump Part III: The Concurring Opinions of Judges Thacker, Keenan, and Wynn, Lawfare (May 30, 2017).
46. The Simple Answer to Judge Paez’s Question about Korematsu, Lawfare (May 19, 2017).
47. Hawaii v. Trump: What Would an “Objective Observer” Think of President Trump’s Travel Ban?, Lawfare (May 16, 2017).
48. Is This A Constitutional Crisis, Politico (May 9, 2017).
49. The wrong way to assess the travel ban: Trump’s words in interviews and on the stump should not decide an appeals court’s ruling, New York Daily News (May 9, 2017).
50. IRAP v. Trump: Applying The “Presumption of Regularity” in “Uncharted Territories,” Lawfare (May 9, 2017).
51. Why Courts Shouldn’t Try to Read Trump’s Mind, Politico Magazine (Mar. 16, 2017).
52. The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause, Lawfare (Mar. 15, 2017).
53. The Legality of the 3/6/17 Executive Order, Part II: The Due Process Clause Analysis, Lawfare (Mar. 12, 2017).
54. The Legality of the 3/6/17 Executive Order, Part I: The Statutory and Separation of Powers Analyses, Lawfare (Mar. 11, 2017).
55. Obamacare is unlikely to survive even if it is repaired, Philadelphia Inquirer (Mar. 5, 2017).
56. The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump: Part II, Lawfare (Feb. 14, 2017).
57. The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump: Part I, Lawfare (Feb. 13, 2017).
58. Why Trump Had To Fire Sally Yates, Politico Magazine (Jan. 31, 2017).
59. The Kennedy Whisperer, Politico Magazine (Feb. 1, 2017).
60. Fair-Weather Originalists, National Review (Feb. 20, 2017) (PDF).
61. Congress should rescind Social Security regulation that violates civil rights of those with disabilities, The Hill (Jan. 25, 2017) (with Samantha Crane and Dara Baldwin).
62. How the States Can Help Trump Make Federalism Great Again, National Review (Jan. 18, 2017).

Media

1. Guest on The Lawfare Podcast: Lawfare Questions (20:15) (Dec. 30, 2017).
2. Cited in Wisdom of the Crowd Accurately Predicts Supreme Court Decisions, MIT Technology Review (Dec. 26, 2017).
3. Quoted in Supreme Court justices may give away their votes with their voices, Economist (Dec. 21, 2017).
4. Quoted in Extra Obamacare subsidies renew battle over taxpayer funding of abortion, Washington Post (Dec. 19, 2017).
5. Quoted in HHS defends withholding comments critical of abortion, transgender policy, Politico (Dec. 18, 2017).
6. Quoted in Three Trump judicial nominees stumble — with Republicans, The Hill (Dec. 17, 2017).
   Guest on Bloomberg Law Radio – Court Throws Out Case Over Trump Tweets (Dec. 13, 2017).
7. Guest on the American Way with Ian Swanson to discuss the Masterpiece Cakeshop Case (December 9, 2017).
8. Quoted in What happens if Trump sacks Mueller?, Weekly Standard (Dec. 8, 2017).
9. Quoted in The Mueller Investigation Is in Mortal Danger, New York Magazine (Dec. 8, 2017).
10. Quoted in Concealed-Carry Reciprocity Could Face Major Constitutional Challenges, The Trace (Dec. 6, 2017).
11. Guest on the Michael Berry Show to discuss the Masterpiece Cakeshop Case (Dec. 5, 2017).
12. Guest on France 24 to Discuss the Supreme Court’s travel ban decision (Dec. 5, 2017).
13. Guest on Fox News Channel – The Daily Briefing with Dana Perino – Discussing Obstruction of Justice (Dec. 5, 2017).
14. Quoted in Trump’s lawyer sparks intense debate on obstruction of justice, The Hill (Dec. 5, 2017).
15. Guest on The Morning Drive w/Dave & Amy, KLIF 570 AM to discuss the Travel Ban ruling (Dec. 5, 2017).
16. Guest on the Michael Berry Show, 740AM KTRH Houston to discuss Obstruction of Justice (Dec. 4, 2017).
17. Quoted in Supreme Court allows full enforcement of Trump travel ban, Washington Times (Dec. 4, 2017).
18. Quoted in Supreme Court lets Trump fully impose latest travel ban, Politico (Dec. 4, 2017).
19. Quoted in GOP’s court-packing spree: It’s only the beginning, Salon (Dec. 3, 2017).
20. Quoted in Trump hate diminishes the press, Toledo Blade (Dec. 3, 2017).
21. Quoted in Is Chief Justice Roberts A Secret Liberal, FiveThirtyEighty (Nov. 27, 2017).
22. Quoted in Courts use Trump’s pontificating to rule against his policies, Washington Times (Nov. 21, 2017).
23. Quoted in “Watchdog Group May Have Exaggerated Key Claims In Anti-Trump Lawsuit,” Daily Caller (Nov. 10, 2017).
24. Quoted in Watchdog Group Appears to Exaggerate Standing Claims in Trump Suit, National Review (Nov. 10, 2017).
25. Quoted in Richard Blumenthal concerned Trump may be colluding with China, Washington Examiner (Nov. 7, 2017).
26. Quoted in Trump’s Tweets Stymie Trans Military Ban In Lower Courts, Law 360 (Nov. 7, 2017).
27. Quoted in Senator claims Trump preparing to cripple individual mandate, but WH says it wants legislative solution, Washington Examiner (Nov. 6, 2017).
28. Guest on WBUR Public Radio “Here and Now,” One Legal Scholar On Trump Calling For Death Penalty In New York Terror Case (Nov. 2, 2017) (Audio).
29. Quoted in Topsy-Turvy at Main Justice, National Law Journal (Nov. 1, 2017).
30. Guest on 91.5 KJZZ Public Radio (Arizona) to discuss President Trump’s court battles (Oct. 31, 2017) (Audio).
31. Guest on WBAP Radio (Dallas) to discuss FantasySCOTUS (Oct. 29, 2017) (Audio).
32. Guest on National Constitution Center Podcast to discuss the Emoluments Clauses litigation (Oct. 26, 2017).
33. Cited in DOJ Headed in the Right Direction on Foreign Emoluments Clause, National Review (Oct. 26, 2017).
34. Cited in Trump, Emoluments, and the Professoriate, The Weekly Standard (Oct. 24, 2017).
35. Quoted in In Rare Move, DC Circuit to Livestream Arguments in Immigrant Abortion Case, National Law Journal (Oct. 19, 2017).
36. Quoted in Here’s how two judges’ rulings against Trump’s newest travel ban differ, Washington Examiner (Oct. 18, 2017).
37. Guest on BBC 5’s Up All Night to discuss the Travel Ban ruling (Oct. 18, 2017).
38. Quoted in Trump’s Business Empire Sends Court Into Uncharted Legal Terrain, Bloomberg Politics (Oct. 18, 2017).
39. Guest on The Morning Drive w/Dave & Amy, KLIF 570 AM to discuss U.S. v. Microsoft (Oct. 17, 2017).
40. Quoted in Trump’s travel ban in court (again), but with a difference, Christian Science Monitor (Oct. 16, 2017).
41. Quoted in Constitutional Lawyer: Yes, Obama’s Affordable Care Act Subsidy Provision Was Illegal, Town Hall (Oct. 16, 2017).
42. Quoted in States’ lawsuit to continue cost-sharing payments faces a challenging road, Modern Healthcare (Oct. 16, 2017).
43. Quoted in How Senate Republicans might make it easier to push through Trump’s judge picks, Vox (Oct. 13, 2017).
44. Quoted in Trump gives Congress a kick in the rear to finally act on health care, Fox News (Oct 13, 2017).
45. Quoted in Will ‘sore-loser litigiousness’ against Trump produce bad precedent?, ABA Journal (Oct. 12, 2017).
46. Quoted in Trump’s Cure for Obamacare Is Worse Than the Disease, Bloomberg (Oct. 11, 2017).
47. Cited in Texas legislator shouted down at Texas Southern University law school; speech called off by university president for lack of central campus authorization, Washington Post (Oct. 10, 2017).
48. Children of Japanese American legal pioneers from World War II fight travel ban, USA Today (Oct. 10, 2017).
49. Guest on The American Way with Ian Swanson to discuss the Supreme Court’s Term (Oct. 6, 2017).
50. Guest on 740AM KTRH Houston to discuss the start of the Supreme Court Term (Oct. 3, 2017).
51. Quoted in Supreme Court begins new session with immigration case, Washington Times (Oct. 2, 2017).
52. Guest on 1A, National Public Radio, to discuss the Supreme Court’s Term (Oct. 2, 2017) (Audio).
53. Quoted in Supreme Court faces blockbuster term — and Trump, USA Today (Oct. 1, 2017).
54. Quoted in With Gorsuch on the bench, the Supreme Court’s new term will address hot-button issues, ABA Journal (October 1, 2017).
55. Quoted in The Supreme Court’s new term, The Economist (Sept. 30, 2017).
56. Quoted in ‘Hamilton’ Signature Clouds Trump Emoluments Clause Case, Bloomberg BNA (Sept. 25, 2017).
57. Guest on Bloomberg Law Radio to discuss the Travel Ban (Sept. 26, 2017) (Audio).
58. Guest on ABC The World to talk about the Travel Ban (Sept. 26, 2017) (Video).
59. Quoted in What does third Trump travel ban mean for Supreme Court case?, Christian Science Monitor (Sept. 25, 2017).
60. Quoted in Supreme Court cancels travel ban arguments, The Hill (Sept. 25, 2017).
61. Quoted in How Obama knee-capped his own health reform, Washington Examiner (Sept. 25, 2017).
62. Cited in ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, N.Y. Times (Sept. 25, 2017).
63. Quoted in What Trump does with expiring travel ban will shape Supreme Court fight, Washington Examiner (Sept. 23, 2017).
64. Cited in Was Alexander Hamilton a Zombie? Experts Say No, National Review (Sept. 21, 2017).
65. Quoted in Senate confirms Trump’s solicitor general Noel Francisco, Washington Times (Sept. 19, 2017).
66. Quoted in The Five Most Outrageous Legal Arguments Against DACA Repeal, Lifezette (Sept. 18, 2017).
67. Guest on Bloomberg Law Radio to discuss the travel ban (Sept. 13, 2017).
68. Quoted in The Supreme Court joins another battle over Donald Trump’s travel ban, The Economist (Sept. 12, 2017).
69. Guest on CTV to discuss DACA (Sept. 9, 2017).
70. Guest on The American Way with Ian Swanson to discuss the Supreme Court’s term (Sept. 9, 2017).
71. Guest on Making Money, Fox Business Network, to discuss the 9th Circuit’s ruling in the travel ban case(Sept. 7, 2017).
72. Cited in Where Amazon Should Go, N.Y. Times (Sep. 8, 2017).
73. Quoted in DACA suits could cause static for Trump travel-ban opponents at Supreme Court, Politico (Sept. 6, 2017).
74. Guest on Airtalk, 89.3 KPCC Public Radio, to discuss DACA (Sept. 6, 2017) (Audio).
75. Guest on the Michael Berry Show, 740AM KTRH Houston to discuss DACA (Sept. 5, 2017).
76. Quoted in Legal fight to preserve DACA takes shape, Politico (Sept. 5, 2017).
77. Quoted in Thorny Battles Loom for Lawsuits Against Trump’s DACA Repeal, National Law Journal (Sept. 5, 2017).
78. Guest on 570AM KLIF, The Morning Drive with Dave and Amy, Dallas, to discuss DACA (9/5/17).
79. Quoted in “The Complete Power to Pardon” and “the Sole Power of Impeachment”, Cato At Liberty (Sept. 1, 2017).
80. Quoted in Take the Pledge of Allegiance out of School, Ozy (Sept. 1, 2017).
81. Quoted in Leftist Lawyers Argue Arpaio Pardon Invalid, Lifezette (Aug. 31, 2017).
82. Quoted in Supreme Court Preview: Blockbuster Cases Likely to Deliver a Contentious, Consequential Fall Term, National Law Journal (Sept. 1, 2017).
83. Quoted in Why Trump’s Arpaio pardon is different, Christian Science Monitor (Aug. 29, 2017).
84. Quoted in Transgender troops have constitutional right to serve, civil rights groups say, Washington Times (Aug. 28, 2017).
85. Quoted in Trump’s Legal U-Turns May Test Supreme Court’s Patience, N.Y. Times (Aug. 28, 2017).
86. Quoted in Federal judge strikes down Texas’ voter ID law for having a discriminatory intent, Washington Times (Aug. 23, 2017).
87. Quoted in Trump under the gun as Dreamers deadline looms, Politico (Aug. 23, 2017).
88. Quoted in The trap the Supreme Court set for Democrats’ best health care ideas, Think Progress (Aug. 23, 2017).
89. Quoted in Post-Charlottesville, Justice Roger Taney Statues Are Removed, but Not at the Supreme Court, National Law Journal (Aug. 22, 2017).
90. Guest on KTRH 740AM Morning News to Discuss the ACLU’s position on the First and Second Amendment(Aug. 21, 2017).
91. Guest on 740AM KTRH to talk about the Convention of states (August 16, 2017) (Audio).
92. Quoted in Facebook bans Daily Stormer, alt-right site, from platform, Washington Times (August 16, 2017).
93. Quoted in La legge al tempo degli algoritmi, Wired Italy (August 16, 2017).
94. Cited in Judging A Book: Kopf Reviews Posner’s ‘Federal Judiciary’, Law 360 (August 16, 2017).
95. Guest on Bloomberg Law Radio to discuss Battle of Charlottesville (August 15, 2017) (Audio).
96. Quoted in Vermont’s Anti-Bias Rule Vote An Outlier In Heated Debate, Law 360 (August 14, 2017).
97. Quoted in Clashes over Title VII protection of sexual orientation make way toward Supreme Court, Washington Times (August 13, 2017).
98. Quoted in Obamacare Lives But Your Hospital Is Dying, American Spectator (August 7, 2017).
99. Guest on CTV News to discuss leaks in the Trump administration (August 3, 2017).
100. Quoted in Rules protecting special counsel may not be enough if Trump decides to fire him, L.A. Times (August 3, 2017).
101. Quoted in SovietCare Looks Good to Investors, American Spectator (August 3, 2017).
102. Quoted in Just Do It: Trump Preparing to Axe Congress’ Illegal ObamaCare Exemption?, Fox Nation (August 1, 2017).
103. Quoted in Don Willett’s Lone Star Legal Show, Governing Magazine (August 1, 2017).
104. Quoted in We Were Just Getting Used to Scaramucci, Slate (July 31, 2017).
105. Quoted in Conservatives challenge Trump to revoke Obamacare subsidy for members of Congress, Washington Times (July 31, 2017).
106. Quoted in Trump’s threat to end Obamacare subsidies would hurt middle class the most, experts say, Dallas Morning News (July 31, 2017).
107. Quoted in Gagging Attorneys: A Critical Look at the ABA “Anti-Discrimination” Rule, Jurist (July 31, 2017).
108. Quoted in Trump threatened to take away health care from members of Congress. Can he do that? Newsweek (July 30, 2017).
109. Quoted in What the GOP Can Learn from Hillarycare, Lifezette (July 27, 2017).
110. Quoted in LGBTQ Groups Threaten to Sue Trump Over Trans Military Ban, National Law Journal (July 26, 2017).
111. Guest on 570AM KLIF – The Morning Drive with Dave & Amy – Dallas to talk about sanctuary cities (July 26, 2017).
112. Quoted in What could happen if Jeff Sessions is pushed out of office?, Associated Press (July 25, 2017).
113. Guest on Federalist Society Teleforum to discuss Hawaii v. Trump (July 25, 2017) (Audio).
114. Quoted in Slapdash ACA Repeal Risks Insurance Market Chaos, Law 360 (July 24, 2017).
115. Quoted in Supreme Court decisions hurt opponents of Trump’s travel ban, legal expert says, Washington Examiner (July 23, 2017).
116. Guest on KLRD News Radio Dallas to discuss President’s ability to pardon himself (July 20, 2017).
117. Guest on Making Money, Fox Business Network to discuss SCOTUS travel ban ruling (July 19, 2017).
118. Quoted in Supreme Court lets Trump restore strict limits on refugees, expands ‘close relatives’ category, Washington Times (July 19, 2017).
119. Guest on AM740 KTRH Houston to discuss signing wills via text message (July 13, 2017) (Audio).
120. Guest on The Bridge to discuss immigration, Radio Dabang 105.3FM Houston (July 13, 2017).
121. Quoted in 4 Reasons Why Gay Marriage Is Safe, Even After Justice Kennedy Retires, Above The Law (July 12, 2017).
122. Quoted in Right-leaning legal experts predict Trump Supreme Court win on travel ban, if it doesn’t become moot, Washington Examiner (July 12, 2017).
123. Guest on 570AM KLIF – The Morning Drive with Dave & Amy – Dallas to talk about President’s Twitter (July 12, 2017).
124. Guest on Houston Matters, Houston Public Media to discuss religious liberty (July 11, 2017) (Audio).
125. Guest on Houston Matters, Houston Public Media to discuss Texas redistricting trial (July 10, 2017) (Audio).
126. Guest on “The Rod Arquette Show,” KNRS 105.9 FM/570AM to talk about SCOTUS (July 7, 2017).
127. Quoted in A Federal Judge Upholds Second Amendment Rights — But The Case Is Heading For The Ninth Circuit, Forbes (July 7, 2017).
128. Guest on Airtalk with Larry Mantle, 89.3 KPCC to discuss the Supreme Court and Second Amendment (July 5, 2017) (Audio).
129. Guest on The American Way with Ian Swanson, 1420 AM The Answer (July 5, 2017).
130. Guest on KLIF 570AM with Dave & Amy to talk about Texas’s DACA Challenge (July 6, 2017) (Audio).
131. Quoted in Houston Ruling No Invitation To Alter Same-Sex Benefits, Law 360 (July 5, 2017).
132. Quoted in Texas forces Trump to pick sides on Dreamer amnesty, Washington Times (July 3, 2017).
133. Quoted in The Most Talkative Justice Of The High Court Term, Law 360 (June 28, 2017).
134. Quoted in The Sharpest Dissents From This Supreme Court Term, Law 360 (June 27, 2017).
135. Quoted in How Trump’s Latest Tweets Undermine His Travel Ban Case, Law 360 (June 5, 2017).
136. Quoted in 5th Circ. Won’t Rehear 3-D Gun Printing Restriction Dispute, Law 360 (March 5, 2017).
137. Quoted in Guessing Game: The Inexact Science Of High Court Predictions, Law 360 (October 2, 2016).
138. Quoted in 5th Circ. Told Obama Abdicated Oath With Executive Actions, Law 360 (May 11, 2015).
139. Quoted in Kennedy’s Gridlock Comments Spook ACA Backers, Law 360 (March 23, 2015).
140. Quoted in New Term Doesn’t Ensure Obama Chance To Revamp High Court, Law 360 (November 6, 2012)
141. Quoted in Trump applauds Supreme Court, feels ‘gratified’ by ruling to revive travel ban, Washington Times (June 26, 2017).
142. Quoted in Supreme Court to hear case of Christian baker who refused to make cake for same-sex wedding, Washington Times (June 26, 2017).
143. Quoted in Supreme Court gives Trump partial travel ban victory, Financial Times (June 26, 2017).
144. Quoted in Houston reacts to Supreme Court decision on Trump’s travel ban, Houston Chronicle (June 26, 2017).
145. Quoted in Trump gets green light for partial travel ban, The Hill (June 26, 2017).
146. Quoted in Justice Gorsuch immediately asserts himself on right of Supreme Court, Washington Times (June 26, 2017).
147. Quoted in Why The Supreme Court Travel Ban Ruling Is A Win For Trump, The Daily Caller (June 26, 2017).
148. Cited in The Travel Ban in the Supreme Court: Crafting a Workable Remedy, Lawfare (June 26, 2017).
149. Cited in SCOTUS Ruling On the Travel Ban Is A Win For President Trump – And A Loss For Activist Judges, Independent Journal Review (June 26, 2017).
150. Cited in Why the Supreme Court is Allowing Trump’s Travel Ban to Go Into Effect, Roughly Explained (June 26, 2017).
151. Guest on KRLD Radio 1080 AM Dallas, discussing the Supreme Court’s term (June 26, 2017).
152. Guest on Breaking News, Canadian Broadcasting Corporation to discuss the travel ban (June 26, 2017) (Video).
153. Guest on All Things Considered, National Public Radio, to discuss the travel ban case (June 26, 2017) (Audio).
154. Guest on “To The Point,” KCRW Public Radio, to discuss the travel ban case (June 26, 2017) (Audio).
155. Guest on Federalist Society Teleforum Podcast to discuss the travel ban case (June 26, 2017) (Audio).
156. Guest on Bloomberg Law on Bloomberg Law Radio to discuss the Supreme Court’s term (June 26, 2017) (Audio).
157. Guest on News, BBC World Service to discuss the Supreme Court’s term (June 26, 2017) (Audio).
158. Guest on the Michael Berry Show to discuss the travel ban case, KTRH AM 740 Houston (June 26, 2017) (Audio).
159. Guest on the Michael Berry Show to discuss Trinity Lutheran Church v. Comer, KTRH AM 740 Houston (June 26, 2017) (Audio).
160. Guest on News, Fox 26 Houston to discuss Supreme Court’s travel ban ruling (June 26, 2017) (Video).
161. Guest on The Sam Walker Show, BBC Radio 5 to discuss the Supreme Court’s term (June 26, 2017) (Audio).
162. Guest on WWL First News with Tommy Tucker to discuss the Supreme Court’s term (June 27, 2017) (Audio).
163. Guest on WBAL News Now with Bryan Nehman to discuss the Supreme Court’s term (June 27, 2017) (Audio).
164. Cited in Breaking Down the Senate Health-Care Bill, Supreme Court Rulings, National Review (June 27, 2017).
165. Quoted in Praise, Criticism Of Supreme Court Decision On Temporary Travel Ban Newburgh Gazette, Newburgh Gazette (June 27, 2017).
166. Quoted in Supreme Court on Trump’s travel ban: Why its tone sounds a bit different, Christian Science Monitor (June, 27, 2017).
167. Quoted in US imposes modified travel ban, Financial Times (June 27, 2017).
168. Guest on 710 KURV McAllen to discuss the Supreme Court’s Term (June 27, 2017). (Audio).
169. Quoted in DC tries to read the tea leaves on whether Kennedy will retire from Supreme Court, Washington Examiner (June 30, 2017).
170. Guest on Houston Matters, Houston Public Media to discuss Supreme Court’s term (June 30, 2017) (Audio).
171. Guest on Houston Public Media to discuss Texas Supreme Court’s decision in Pidgeon v. Turner (June 30, 2017) (Audio).
172. Guest on AM740 KTRH Houston to discuss the Senate Health Care bill (June 23, 2017) (Audio).
173. Cited in What’s Happening With The Travel Ban At The Supreme Court?, Buzzfeed (June 22, 2017).
174. Quoted in New York attorney general scours social media to sue pro-life protesters, Washington Times (June 21, 2017).
175. Guest on the Michael Berry Show, AM740 KTRH Houston, to discuss Matel v. Tam (June 19, 2017).
176. Quoted in Supreme Court ruling against censoring The Slants’ name bolsters Washington Redskins trademark case, Washington Times (June 19, 2017).
177. Guest on Houston Public Media, Implications For Texas As Supreme Court Considers Gerrymandering Case(June 19, 2017) (Audio).
178. Cited in If Trump Is Violating Emoluments Clause, So Did George Washington, Polizette (June 19, 2017).
179. Quoted in Trump Tweets Pose Increasingly Serious Political, Legal Risks, Polizette (June 19, 2017).
180. Quoted in Federalist Society becomes progressives’ new bogeyman, Washington Times (June 18, 2017).
181. Guest on Canadian Broadcasting Channel to discuss special counsel investigation (6/14/17) (Vide0).
182. Guest on WJIM’s The Steve Gruber Show to discuss Attorney General Session’s testimony (6/14/17) (Audio).
183. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Attorney General Jeff Session’s testimony (6/14/17) (Audio).
184. Guest on Canadian TV News Channel to discuss Attorney General Jeff Session’s testimony, CTV (6/13/17) (Vide0)
185. Guest on Guest on Lou Dobbs Tonight to Discuss AG Session’s Testimony, Fox Business Network (6/13/17) (Video).
186. Quoted in Notable & Quotable: Gorsuch and Gorsuch, Wall Street Journal (June 14, 2017).
187. Guest on Australian Broadcasting Channel News to discuss the travel ban (June 14, 2017) (Video).
188. Guest on AM740 KTRH Houston to discuss Trump blocking people on Twitter (June 13, 2017) (Audio).
189. Guest on AM740 KTRH Houston to discuss Trump blocking people on Twitter (June 13, 2017) – Short (June 13, 2017) (Audio).
190. Do Recent Voting and Immigration Laws Mean Texas is Racist?, Houston Matters on Houston Public Media (June 13, 2017) (Audio).
191. Quoted in SCOTUS faces tight timeline to hear travel ban appeal this summer, Politico (June 13, 2017).
192. Cited in The Ninth Circuit’s Refugee EO Decision: Methodically Misreading the Immigration Statute, Lawfare (June 13, 2017).
193. Cited in If Trump Fires Mueller (Or Orders His Firing), Lawfare (June 13, 2017).
194. Cited in Can the president fire special counsel Robert Mueller? (And then what?), Washington Post (June 13, 2017).
195. Quoted in Knives coming out: Trump fans float idea of firing investigator Mueller, The Canadian Press (June 12, 2017).
196. Quoted in Are the courts treating Trump differently than other presidents?, The Christian Science Monitor (June 12, 2017).
197. Quoted in What’s in Neil Gorsuch’s first SCOTUS opinion?, Conservative Review (June 12, 2017).
198. Guest on AirTalk with Larry Mantle to discuss Maryland and District of Columbia’s Emoluments Clause suit, KPCC National Public Radio (June 12, 2017) (Audio).
199. Cited in Politico symposium on the Comey hearing, Washington Post (June 8, 2017).
200. Guest on Canadian Broadcasting Channel to discuss Comey’s testimony (June 8, 2017)  (Video).
201. Guest on the Heritage Foundation’s SCOTUS 101 Podcast to discuss Trump’s Short List (June 6, 2017) (Audio).
202. Quoted in Harris County takes bail suit to U.S. Supreme Court, Houston Chronicle (June 6, 2017).
203. Quoted in Harris County appeals bail case ruling to U.S. Supreme Court, Houston Chronicle (June 6, 2017).
204. Quoted in Legal experts to Trump on travel ban: Twitter hurting cause, Associated Press (June 5, 2017).
205. Guest on Making Money with Charles Payne to talk about the Travel Ban and the President’s Tweets, Fox Business Network (June 5, 2017) (Video, Post).
206. Quoted in Trump undercuts his lawyers with tweets about travel ban, L.A. Times (June 5, 2017).
207. Quoted in Trump calls it a travel ban — lawyers call it sabotage, The Hill (June 5, 2017).
208. Quoted in Trump Promotes Original ‘Travel Ban,’ Eroding His Legal Case, N.Y. Times (June 5, 2017) (Page A1, above the fold).
209. Quoted in Trump’s ‘TRAVEL BAN’ tweets may hurt his case at Supreme Court, USA Today (June 5, 2017).
210. Quoted in George Conway Cautions Trump About His Travel Ban, The Atlantic (June 5, 2017).
211. Cited in Trump’s Monday Morning Tweets Cause A Travel Ban Crisis, Buzzfeed (June 5, 2017).
212. Quoted in Trump tweets might undercut travel ban case, The Hill (June 5, 2017).
213. Quoted in Trump’s tweets could hurt his Supreme Court case on immigration: Experts, Washington Examiner (June 5, 2017).
214. Quoted in Will the Supreme Court take up Trump’s travel ban?, Washington Examiner (June 3, 2017).
215. Quoted in Trump’s Travel Ban Is Far from Dead, Vice News (June 3, 2017).
216. Quoted in SEE YOU IN COURT indeed, Mr. President, Vox (June 2, 2017).
217. Quoted in Supreme Court is asked to give an early verdict on Trump’s travel ban, L.A. Times (June 2, 2017).
218. Cited in A New Jurisprudence for an Oathless Presidency, Lawfare (June 2, 2017).
219. Guest on Seattle KOMO NewsRadio to discuss the travel ban appeal (June 2, 2017) (Audio).
220. Quoted in Could Trump turmoil affect Justice Kennedy’s retirement plans?, Washington Examiner (May 21, 2017).
221. Cited in The Bizarre, Endless, and Oh-So-Disturbing Week that Was: All of Lawfare in One Endless Post, Lawfare (May 20, 2017).
222. Cited in GHS students win first in national SCOTUS competition, Greenwich Times (May 19, 2017).
223. Quoted in High School Students, in Moot Competition, Argue a Supreme Court Case, Education Week School Law (May 19, 2017).
224. Quoted in States seek to intervene in House Republicans’ cost-sharing payments lawsuit, Modern Healthcare (May 18, 2017).
225. Guest on Houston Matters to Discuss Texas’s new sanctuary city law, Houston Public Media (May 18, 2017) (Post, Audio).
226. Quoted in GOP Lawmakers Warn Special Counsel Could Harm Trump Admin, The Daily Caller (May 18, 2017).
227. Guest on KURV 710AM McAllen to discuss obstruction of Justice (May 17 2017).
228. Guest on France 24 to discuss standards of impeachment, France 24 Cable News (May 17, 2017) (Post, Video).
229. Quoted in What is obstruction of justice?, CNN (May 17, 2017).
230. Guest on NPR’s All Things Considered, Trump’s Flexing Of Executive Power Raises Legal Questions (May 16, 2017) (Audio).
231. Quoted in Travel ban: Is a nationwide injunction on behalf of one person overkill?, The Christian Science Monitor (May 15, 2017).
232. Quoted in Trump’s Long-Shot, Machiavellian Option for FBI, Polizette (May 15, 2017).
233. Quoted in The Garland Gambit, The Atlantic (May 12, 2017).
234. Cited in Top Ten from Texas Bar Today: DiMaggio, Sinatra, and Justice Scalia, Texas Bar Today (May 12, 2017).
235. Guest on NPR’s 1A to discuss Comey and Constitutional Crises (May 11, 2017) (Post, Audio).
236. Guest on Late Afternoons with Mike Schikman, 550 WSVA-AM Harrisonburg, VA (May 11, 2017) (Audio).
237. Quoted in Trump-Comey Conversations Spark Democratic Hysteria, Polizette (May 11, 2017)
238. Quoted in Removal of Trump’s Muslim Comments Raise Travel Ban Questions, The National Law Journal (May 11, 2017).
239. Quoted in How to probe the Trump campaign’s Russian links?, The Economist (May 11, 2017).
240. Quoted in Comey Firing Could Wake a Constitutional Wolf, Bloomberg BNA Law (May 11, 2017).]
241. Quoted in Does Comey’s Dismissal Fit the Definition of a Constitutional Crisis?, The Atlantic (May 11, 2017).
242. Quoted in Lawsuits piling up against Trump, The Hill (May 11, 2017).
243. Guest on We the People Podcast, National Constitution Center, to discuss “Is the firing of James Comey a constitutional crisis?” (May 11, 2017) (Audio, Post).
244. Quoted in Here’s What Libertarian Legal Scholars Think About Comey’s Firing, Reason (May 10, 2017).
245. Quoted in James Comey Admits Trump Had The Right To Fire Him, Western Journalism (May 11, 2017).
246. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s firing of Comey (May 10, 2017).
247. Quoted in Was It Legal? What Scholars Are Saying About the James Comey Firing, Fortune (May 10, 2017).
248. Guest on AM740 KTRH Houston to discuss “Fake Law” (May 10, 2017).
249. Quoted in Firing the FBI Director Is Not a ‘Constitutional Crisis’, Reason (May 10, 2017).
250. Guest on NewsRadio 790 WAEB Allentown, PA with Bobby Gunther to discuss Obamacare (May 10, 2017) (Audio).
251. Cited in Politico symposium on the firing of James Comey, Washington Post (May 10, 2017).
252. Quoted in Those Ever-Moving Goalposts, Library of Law & Liberty (May 10, 2017).
253. Guest on Making Money with Charles Payne, Fox Business Network (May 9, 2017) (Video, Post):
254. Guest on Bloomberg Law Radio, Travel Ban Faces Tough Review in Virginia Court (May 9, 2017) (Audio, Post).
255. Quoted in Stop saying Yates owned Cruz, your legal ignorance is showing, Conservative Review (May 9, 2017).
256. Cited in Containing the Weapon of Mass Disruption, Library of Law & Liberty (May 9, 2017).Cited in The Fourth Circuit Argument on the Refugee EO: Second-Guessing the President or Safeguarding Individual Rights?, Lawfare (May 9, 2017).
257. Guest on The Michael Berry to discuss testimony of Sally Yates and IRAP v. Trump, AM740 KTRH Houston (May 8, 2017) (Audio, Post).
258. Quoted in Trump’s Rhetoric Causes Trouble in Court, Roll Call (May 2, 2017).Cited in Justice by algorithm: AI predicts the results of Supreme Court trials better than a human, U.K. Daily Mail (May 5, 2017).
259. Quoted in Alaska Senator: Breaking Up 9th Circuit Court ‘Long Overdue’, Newsmax (May 3, 2017).
260. Cited in Artificial intelligence prevails at predicting Supreme Court decisions, Science (May 2, 2017).
261. Quoted in Breaking up the 9th Circuit would not necessarily benefit Trump, experts say, Washington Examiner (Apr. 30, 2017).
262. Quoted in Trump Can’t Win His Battle Against the Judges, Slate (Apr. 27, 2017).
263. Quoted in Trump’s Losing Streak in Courts Is Traceable to Conservative Judges, New York Times (Apr. 27, 2017).
264. Quoted in The Sanctuary Cities Ruling Is Much Ado About Nothing, The Federalist (Apr. 26, 2017).
265. Quoted in A Trump Lawsuit Gets a Boost from Restaurants, Bloomberg Business Work (April 24, 2017) (PDF).
266. Guest on Houston Matters, Houston Public Media to Discuss the Separation of Powers (April 24, 2017) (Audio).
267. Quoted in Winning! Trump, GOP Congress Are 0-4 On Major Campaign Pledges, Talking Points Memo (April 21, 2017).
268. Quoted in Republicans Eye New Path Out of Health Care Wilderness, Lifezette (April 20, 2017).
269. Quoted in Bill Would End Online Porn As We Know It, Unless You Pay The Gov’t, The Daily Caller (April 20, 2017)
270. Guest on AM740 KTRH, Houston, discussing the Affordable Care Act (April 20, 2017) (Audio).
271. Quoted on KRLD Radio 1080 AM Dallas, concerning the Affordable Care Act (April 18, 2017) (Audio).
272. Cited in Researchers Predict SCOTUS Decisions With Improved Accuracy, Illinois Tech Today (April 18, 2017).
273. Quoted in Trump’s message to Democrats: Negotiate Obamacare, or payments to insurers will be cut, The Washington Times (April 16, 2017).
274. Quoted in “Neil Gorsuch has first day as an associate justice on the Supreme Court,” CBS News (April 14, 2017).
275. Quoted in “Gorsuch begins first day at Supreme Court,” The Washington Examiner (April 13, 2017).
276. Quoted in “Judge Richard Posner’s unimpeachable honesty,” USA Today (April 10, 2017).
277. Quoted in “How will the ‘nuclear option’ affect future Supreme Court selections?,” The Washington Examiner (April 10, 2017).
278. Cited in “Legal issues involved in the Trump immigration travel order,” Constitution Daily (April 10, 2017).
279. Quoted in “The Conservative Pipeline to the Supreme Court,” The New Yorker (April 2017 Issue).
280. Guest on Lou Dobbs Tonight, Fox Business Network to discuss Gosuch confirmation (Apr. 7, 2017) (Video, Post).
281. Quoted in The post-constitutional world of Judge Richard Posner, The Washington Post (Apr. 7, 2017).
282. Guest on Matt Patrick Show to discuss Electoral College, AM 740 KTRH Newsradio to discuss Gorsuch Confirmation (Apr. 7, 2017) (Audio).
283. Guest on News Now with Bryan Nehman on WBAL Newsradio 1090, Baltimore, to discuss the Gorsuch confirmation (Apr. 6, 2017).
284. Quoted in Conservatives hope Gorsuch seated before next Supreme Court oral arguments, The Washington Examiner (Apr. 6, 2017).
285. Guest on KNX 1070 NEWSRADIO Los Angeles, to discuss Gorsuch confirmation (Apr. 3, 2017).
286. Guest on The Michael Berry Show to discuss incitement claim against President Trump, KTRH Houston Talk radio (Apr. 3, 2017).
287. Quoted in “How Trump Could Gut Obamacare Without Congress,” Lifezette (Apr. 3, 2017).
288. Featured in “South Texas Law Prof Becomes Go-To Guy for National Media,” The Texas Lawyer (Apr. 1, 2017) (PDF, Post)
289. Quoted in “With new court filings, Trump’s travel ban appears more likely to reach Supreme Court,” L.A. Times (Mar. 31, 2017)
290. Guest on Lou Dobbs Tonight to discuss the travel ban litigation, Fox Business Network (Mar. 31, 2017) (Post, Video).
291. Guest on CNBC Nightly Business Report to discuss Affordable Care Act (Mar. 28, 2017) (Post, Video).
292. Quoted in Lingering Obamacare court cases are troubling insurers, CNBC (Mar. 28, 2017).
293. Cited in The U.S. Commission on Civil Rights Announces the Appointment of Advisory Committee Members for Four States, PR Newswire (Mar. 27, 2017).
294. Quoted in Overview Of SCOTUS Nominee Neil Gorsuch’s Background And Record, Lawyers.com (Mar. 27, 2017).
295. Quoted in What If Keeping Out “Bad and Dangerous” Muslims is the President’s National Security Purpose? And Other Vexing Questions, Lawfare (Mar. 24, 2017).
296. Cited in A better constitutional basis for the Concealed Carry Reciprocity Act of 2017, The Washington Post (Mar. 23, 2017).
297. Quoted in Did Gorsuch Tip Hand On Travel Ban?, Bloomberg BNA (Mar. 23, 2017).
298. Guest on The Michael Berry Show, AM740 KTRH Houston (Mar. 22, 2017) (Post, Audio).
299. Quoted in ‘You’re Fired, Judge’: Sanctioning Federal Judges for Bad Behavior, American Thinker (Mar. 22, 2017).
300. Guest on Lou Dobbs Tonight to discuss Judge Gorsuch’s confirmation hearing, Fox Business Network (Mar. 21, 2017) (Post, Video).
301. Cited in Day One of the Neil Gorsuch hearings was not about Neil Gorsuch, The Washington Examiner (Mar. 21, 2017).
302. Quoted in Trump Comments Highlight Need for a Plan When Clients Go Rogue, The National Law Journal (Mar. 20, 2017).
303. Quoted in 5 times Gorsuch referenced ‘Hunger Games’ and other literary works in his legal writing, PBS Newshour (Mar. 20, 2017).
304. Guest on KRLD 1080AM Dallas to discuss Judge Gorsuch’s confirmation hearing (Mar. 20, 2017).
305. Cited in No, there is no way to force Supreme Court nominees to give revealing answers, The Washington Post (Mar. 20, 2017).
306. Quoted in The Failures of the American Health Care Act, Reason (Mar. 19, 2017).
307. Quoted in Immigration: Les déclarations de Trump sur un «muslim ban» se retournent contre lui, 20 Minutes (French) (Mar. 17, 2017).
308. Quoted on the Rush Limbaugh Show about the travel ban litigation, EIB Network (Mar. 17, 2017) (Post, Audio).
309. Quoted in 5 Problems With The Hawaii Judge Halting Trump’s Travel Ban, The Federalist (Mar. 16, 2017).
310. Guest on Lou Dobbs Tonight to discuss Hawaii v. Trump, Fox Business Network (Mar. 16, 2017) (Post, Video).
311. Quoted in Trump’s Second Bid at Travel Ban Knocked Down by Two Judges, Bloomberg (Mar. 16, 2017).
312. Guest on All Things Considered, National Public Radio, to discuss travel ban (Mar. 16, 2017) (Post, Audio).
313. Quoted in Judge Watson’s Decision Was Reckless, National Review (Mar. 16, 2017).
314. Quoted in Trump Is His Own Travel Ban’s Worst Enemy, The Atlantic (Mar. 16, 2017).
315. Cited in The Revised Refugee EO in the Courts II: The Flawed Maryland District Court Decision, Lawfare (Mar. 16, 2017).
316. Cited in Revised, resubmitted, rejected, Vox (Mar. 16, 2017).
317. Guest on Making Money with Charles Payne to discuss travel ban litigation, Fox Business Network (Mar. 15, 2017).
318. Guest on AM740 KTRH, Houston to discuss health care (Mar. 15, 2017).
319. Cited in Don’t Dreamers Have Rights?, Slate (Mar. 15, 2017).
320. Guest on Supreme Court Twitter Chat, Bloomberg BNA (Mar. 14, 2017).
321. Cited in Full Repeal Would Cover More People than House GOP’s ObamaCare-Lite Bill, Cato At Liberty (Mar. 14, 2017).
322. Cited in Voters Won’t Ignore This CBO Score, Bloomberg View (Mar. 13, 2017).
323. Quoted in The Legal Questions Facing Trump’s New Travel Ban, The Daily Signal (Mar. 13, 2017).
324. Guest on KTSA Radio, San Antonio, to discuss Texas redistricting case (Mar. 13, 2017).
325. Interviewed on WHDT News to discuss American Health Care Act (Mar. 12, 2017).
326. Quoted in Legal Experts: Lawsuit Over Trump’s DC Hotel Conflicts Is Uphill Climb, TPM (Mar. 10, 2017).
327. Guest on Australian Broadcasting Channel program “The World” to talk about travel ban (Mar. 7, 2017) (Video).
328. Quoted in Trump’s revised ban less restrictive but will still face suits, The Houston Chronicle (Mar. 6, 2017).
329. Quoted in President Trump’s new travel ban is much narrower — and possibly courtproofed, Vox (Mar. 6, 2017).
330. Quoted in Trump’s Revised Travel Ban Is Less Restrictive But Will Still Face Suits, Bloomberg Politics (Mar. 6, 2017).
331. Guest on National Constitution Center “We the People” Podcast to discuss the future of federalism (March 2, 2017) (Audio).
332. Featured on KIRO 97.3 FM Seattle, The Tom and Curly Show, to discuss Sanctuary Cities and Federal Funding (Feb. 28, 2017) (Audio).
333. Guest on Houston Matters, Houston Public Media, to discuss Texas Supreme Court oral arguments in Pidgeon v. Turner (Feb. 28, 2017) (Audio).
334. Cited in Alexa’s responses to customers are protected by the First Amendment, Amazon argues in murder case, ABA Journal (Feb. 27, 2017).
335. Quoted in GOP goes after Social Security gun rule, The Northwoods River News (Feb. 25, 2017).
336. Guest on Making Money with Charles Payne, Fox Business Network (Feb. 24, 2017) (Video).
337. Guest on Cato Daily Podcast, If States Don’t Play Ball, How Much Cash Can Feds Withhold? (Feb. 24, 2017).
338. Quoted in Party politics play out in courts in Texas, nationally, USA Today (Feb. 23, 2017).
339. Quoted in Trump Rescinds Obama-Era Guidance on Transgender Students, Roll Call (Feb. 22, 2017).
340. Cited in Vox Sentences, Vox (Feb. 22, 2017).
341. Quoted in Trump Targets Criminals, Late Arrivals in Immigration Enforcement, The Daily Signal (Feb. 21, 2017).
342. Quoted in Appropriators Watch Trump’s Next Move on Obamacare Lawsuit, Roll Call (Feb. 21, 2017).
343. Guest on The Mike Hart Show to discuss Unraveled, WXJC-AM (850 AM) Birmingham, AL (Feb. 20, 2017).
344. Guest on AM740 KTRH to discuss libel law (Feb. 20, 2017) (Audio).
345. Guest on the Brian Thomas Morning Show, 55KRC AM to discuss Unraveled (Feb. 17, 2017) (Video).
346. Quoted in Price’s Conundrum: Pull The Plug On Obamacare Or Keep It On Life Support?, TPM (Feb. 14, 2017).
347. Immigration order court battle just beginning, World News Group (Feb. 13, 2017).
348. Cited in Protecting consumers from swindlers, The Washington Times (Feb. 12, 2017).
349. Guest on NPR’s Weekend Edition Saturday with Nina Totenberg, “Trump’s Criticism Of Judges Out Of Line With Past Presidents” (Feb. 11, 2017) (Post, Audio).
350. Quoted in “Fixing Trump Executive Order’s Legal Problems Is No Easy Task,” Bloomberg Politics (Feb. 11, 2017).
351. Quoted in “Trump reportedly considers new immigration order after court defeat,” Fox News (Feb. 10, 2017).
352. Guest on “Making Money” with Charles Payne, Fox Business Network, to discuss immigration Appeal (Feb. 10, 2017) (Post, Video).
353. Quoted in “Precedented: Is Trump uniquely awful? Some historic perspective,” Washington Examiner (Feb. 10, 2017).
354. Quoted in “Trump Weighs New Immigration Order With Next Legal Moves Unclear,” Bloomberg Politics (Feb. 10, 2017).
355. Guest on KURV 710AM McAllen to discuss Trump’s executive action on immigration (Feb. 10, 2017).
356. Quoted in “Trump’s Court Battle in Perspective,” Canada Free Press (Feb. 10, 2017).
357. Quoted in “‘See You In Court,’ Trump Says. OK, Now What?“, FiveThirty Eight (Feb. 10, 2017).
358. Quoted in “Trump’s Court Battle in Perspective,” Accuracy in Media (Feb. 10, 2017).
359. Guest on Tom Bernard Podcast to discuss nomination of Judge Gorusch (Feb. 10, 2017) (Audio).
360. Featured on KDKA Radio Pittsburgh, discussing travel ban (Feb. 9, 2017).
361. Cited in “Dems seize on court rebuke of Trump’s immigration ban,” Politico (Feb. 9, 2017).
362. Guest on Houston Matters, Houston Public Radio, to discuss President Trump’s regulatory rollback (Feb. 9, 2017) (Audio).
363. Guest on Lou Dobbs Tonight to discuss Washington v. Trump (Feb. 9, 2017) (Post, Video).
364. Quoted in “US appeals court refuses to reinstate President Trump’s travel ban,” Associated Press (Feb. 9, 2017) (Translated in Spanish, German, Portuguese)
365. Quoted in The Threat to the Integrity of an Independent Judiciary, National Review (Feb. 9, 2017).
366. Quoted in “6 times when presidents besides Trump weighed in on court rulings,” Los Angeles Times (Feb. 8, 2017).
367. Guest Lou Dobbs Tonight to discuss Washington v. Trump (Feb. 8, 2017) (Post, Video).
368. Guest on Heartland Institute Podcast to Discuss Obamacare in the Trump Administration (Feb. 7, 2017) (Post, Audio).
369. Quoted in “Lawyers clash at hearing over future of Trump’s immigration ban,” The Globe and Mail of Canada (Feb. 7, 2017).
370. Guest on Fox Business “Making Money” to talk about 9th Circuit Arguments in Washington v. Trump (Feb. 7, 2017) (Post, Video).
371. Guest on Houston Matters, “Vote Reignites Debate Over Teaching Evolution and Creationism in Texas Schools” Houston Public Radio (Feb. 7, 2017) (Audio).
372. Quoted in “Please stop calling everything Trump does ‘unprecedented,’” The New York Post (Feb. 7, 2017).
373. Quoted in “What’s Next in Hot-Button Travel Ban Litigation?,” The National Law Journal (Feb. 7, 2017).
374. Cited in “The Refugee Executive Order, the Immigration Act, and the Government’s Bottom Line,” Lawfare (Feb. 7, 2017).
375. Quoted in “Liberals exploiting anti-Obama tactics to thwart Trump’s travel ban,” Politico (Feb. 7, 2017).
376. Quoted in “Battle over Trump’s travel ban appears destined for Supreme Court,” The Financial Times (Feb. 7, 2017).
377. Quoted in “The legal battle over Trump’s immigration ban, explained,” Vox (Feb. 7, 2017).
378. Quoted in “Understanding the Legality of Trump’s Refugee Action,” Lifezette (Feb. 7, 2017).
379. Cited in “The case for Trump’s ban would be much stronger without Trump,” Fox (Feb. 6, 2017).
380. Quoted in “Trump’s tweets against judges worry legal community,” CNN Politics (Feb. 6, 2017).
381. Quoted in CNN’s Selective Outrage on Judicial Criticism, Lifezette (Feb. 6, 2017).
382. Guest on “To The Point,” KCRS Public Radio, to discuss President Trump’s Executive Order (Feb. 6, 2017) (Audio).
383. Quoted in “This Is What’s Happening On Trump’s Refugee Order,” The Daily Caller (Feb. 6, 2017).
384. Guest on BBC Radio 4 to discuss the Separation of Powers (Feb. 6, 2017) (Post, Audio).
385. Guest on BBC One – Breakfast to discuss the travel ban (Feb. 6, 2017) (Post, Video)
386. Guest on the BBC World News to discuss the travel ban (Feb. 6, 2017) (Post, Video).
387. Quoted in “Federal appeals court will not immediately reinstate executive orders on immigration,” the Christian Science Monitor (Feb. 5, 2017).
388. Guest on The Bill Cunningham Show, 700 AM WLW Cincinnati to discuss nomination of Judge Gorsuch (Feb. 5, 2017) (Audio).
389. Quoted in “Trump Officials File Appeal to Overturn Ruling Blocking Immigration Order,” The New York Times (Feb. 4, 2017).
390. Quoted in “The deadly serious accusation of being a ‘so-called judge,’” Washington Post  (Feb. 4, 2017).
391. Quoted in “Sauce For The Goose? Judge Cites Anti-Obama Ruling To Block Trump’s Immigration Order,” Forbes (Feb. 4, 2017).
392. Quoted in “Hyller Donald Trumps valg,” Nettavisen (Feb. 4, 2017).
393. Quoted in “Die kurzfristige Macht der Richter,” Zeit Online (Feb. 4, 2017).
394. Guest on Popp Off, KAHI-AM Sacramento to discuss Supreme Court nomination (Feb. 3, 2017).
395. Quoted in “Detentions’ Immediacy Forgives Class Flaws,” Bloomberg BNA Class Action Litigation Report (Feb. 3, 2017).
396. Guest on WILS-AM Lansing MI with Dave Ackerly to discuss Supreme Court nomination (Feb. 2, 2017) (Audio).
397. Quoted in “Federal Judges to Hear Arguments Defending Trump Travel Ban,” Associated Press (Feb. 2, 2017).
398. Guest on 1A, WAMU Public Radio, “Before The Court: A Vacant Seat And The Current Caseload” (Feb. 1, 2017) (Audio).
399. Quoted in “Trump’s Immigration Order Might Be Constitutional, But Its Hasty Construction Will Hurt Him,” The Federalist (Feb. 1, 2017).
400. Guest on News Now with Bryan Nehman on WBAL Newsradio 1090, Baltimore to discuss the Supreme Court (Feb. 1, 2017).
401. Quoted in “President Trump taps conservative Neil Gorsuch for Supreme Court,” Christian Science Monitor (Feb. 1, 2017).
402. Guest on CNBC Squawk Box to discuss Supreme Court nomination (Jan. 31, 2017) (Video).
403. Guest on The Larry O’Connor Show to discuss Supreme Court nomination, WMAL 630 AM Washington, D.C. (Jan. 31, 2017) (Audio).
404. Quoted in “Democrats should use the coming court fight to spotlight Trump’s authoritarianism. Here’s how.,” Washington Post (Jan. 31, 2017).
405. Quoted in “Picking and choosing: Fired AG defended Obama’s unlawful immigration amnesty,” Washington Times (Jan. 31, 2017).
406. Quoted in “From reality TV clown to Nixon on steroids: ‘You’re fired!‘” Newsworks (Jan. 31, 2017).
407. Quoted in “Trump had to fire Sally Yates, Hillary blames Obama and other notable comments,” New York Post Editorial Board (Jan. 31, 2017).
408. Guest on Bloomberg Law Radio to discuss “Sally Yates Out After Disagreement With Trump” (Jan. 31, 2017) (Audio).
409. Quoted in “Will Trump’s SCOTUS pick disappoint Trump?,” Politico (Jan. 31, 2017).
410. Quoted in “Trump’s AG Pick Once Told Yates to ‘Say No’ to Improper Demands,” National Law Journal (Jan. 31, 2017).
411. Quoted in “Here is who prediction markets favor for Trump’s Supreme Court pick,” Washington Examiner (Jan. 31, 2017).
412. Guest on the Mildred Gaddis Show, Am 1200/99.9 FM WCHB Detroit, to discuss Trump’s firing of Yates (Jan. 31, 2017).
413. Guest on BBC World Service: “President Trump Replaces Acting Attorney General” (Jan. 31, 2017) (Audio).
414. Quoted in “Trump Fires Acting AG Who Refused to Enforce Refugee Order,” The Daily Caller (Jan. 30, 2017).
415. Quoted in “Trump’s ACA Executive Order Won’t Affect Obamacare Litigation,” Bloomberg BNA Health Blog (Jan. 30, 2017).
416. Guest on “Airtalk,” 89.3 KPCC National Public Radio to discuss “Debating constitutionality, intent and efficacy of Trump Executive Order on immigration” (Jan. 30, 2017) (Audio).
417. Guest on “This World” on Australian Broadcasting Channel to discuss Trump’s executive order on immigration (Jan. 30, 2017) (Post, Video).
418. Guest on AM740 KTRH to discuss the Supreme Court and immigration (Jan 30, 2017).
419. Guest on WHDT Naples to discuss Supreme Court nomination, (Jan. 29, 2017).
420. Quoted in Obamacare Executive Order Has Little Effect on Litigation, Bloomberg BNA Health Reporter (Jan. 27, 2017).
421. Quoted in Will Politics Derail Suit Over Trump Business Deals? Bloomberg BNA Law Week (Jan. 26, 2017).
422. Guest on KURV 710AM McAllen to discuss Trump’s executive action on immigration (Jan. 26, 2017).
423. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s executive action on immigration (Jan. 26, 2017).
424. Quoted in Fans have fantasy sports, Supreme Court nerds have FantasySCOTUS, USA Today (Jan. 26, 2017).
425. Guest on To The Point (KCRW Public Radio), to discuss Trump’s executive action on immigration (Jan. 26, 2017) (Audio).
426. Quoted in Employers’ ACA burden: Overlooked, or oversimplified, in Trump executive order?, ACA Insights (Jan. 25, 2017).
427. Guest on KRLD 1080AM Dallas to discuss the Emoluments Clause (Jan. 25, 2017).
428. Quoted in Lawyers are being replaced by machines that read, Quartz (Jan. 25, 2017).
429. Quoted in Democrats-linked ethics group sues Trump over ‘unconstitutional’ DC hotel, RT (Jan. 24, 2017).
430. Quoted in Law Profs Butt Heads Over Suit Filed Against Trump, National Law Journal (Jan. 23, 2017).
431. Quoted in Trump’s Foreign Dealings Violate Constitution, Suit Claims, Bloomberg Politics (Jan. 23, 2017).
432. Quoted in What is the ‘Emoluments Clause’? Does it apply to President Trump?, Washington Post (Jan.23, 2017).
433. Quoted in Taxpayers Will Defend Trump in Suit Charging Constitutional Violations, New York Times (Jan. 23, 2017).
434. Quoted in Why the New Ethics Lawsuit Against Trump Is Probably Dead on Arrival, The Fiscal Times (Jan. 23, 2017).
435. Quoted in Does the emoluments clause lawsuit against President Trump stand a chance?, Washington Post (Jan. 23, 2017).
436. Quoted in ‘Emoluments’ Lawsuit Against Trump May Get Kicked Out Of Court, Huffington Post (Jan. 23, 2017).
437. Cited in Can President Trump’s executive order unravel the Affordable Care Act?, The Washington Post (Jan. 23, 2017).
438. Quoted in Exclusive: Andy Slavitt’s next mission is saving Obamacare, Politico (Jan. 23, 2017).
439. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s executive action on Obamacare (Jan. 23, 2017) (Audio).
440. Quoted in Trump May Use Obama’s Executive Branch Power Grabs to Destroy Obamacare, Reason (Jan. 23, 2017).
441. Quoted in Neil Gorsuch Said to be a Leading SCOTUS Contender, ABA Journal (Jan. 23, 2017).
442. Quoted in Donald Trump hérite d’un large pouvoir présidentiel, La Libre – Belgium (Jan. 23, 2017) (PDF).
443. Quoted in Predicting Donald Trump’s pick for the Supreme Court, The Economist’s Democracy in America Blog (Jan. 23, 2017).
444. Quoted in Trump says lawsuit claiming he violated the Constitution is ‘without merit’, Politico (Jan. 22, 2017).
445. Quoted in How Trump can use Obamacare to kill Obamacare, Politico (Jan. 22, 2017).
446. Quoted in How Will Trump Shrink Obamacare? The Same Way Obama Did, Forbes (Jan. 21, 2017).
447. Guest on the Texas Standard to discuss How Trump’s Supreme Court Nominee Could Affect Texas Cases(Jan. 20, 2017).
448. Quoted in GOP has an opportunity to make Obama’s legacy a mere BLIP in American history, Conservative Review (Jan. 20, 2017).
449. Guest on Chris Oaks Morning Show, WFIN AM1330 Toledo, to discuss Obamacare (Jan. 19, 2017) (Audio).
450. Interviewed, “Cross: Josh Blackman, A Fearless Constitutional Contrarian,” Fault Lines (Jan. 18, 2017).
451. Guest on Brainfood from the Heartland with Louie B. Free on WYCL-AM 1540, Ohio to discuss Unraveled (Jan. 18, 2017) (Audio, Post).
452. Guest on The Tom Amis Show on WCXZ-AM/Knoxville to Discuss Unraveled (Jan. 18, 2017) (Audio, Post).
453. Quoted in Game of Robes: Rampant Speculation over a Supreme Court pick, CQ Roll Call (Jan. 11, 2017).
454. Guest on We The People, AM Talk Radio WAMV-AM/Lynchburg, VA with Bob Langenstaff (Jan. 11, 2017) (Audio, Post).
455. Guest on The Frankie Boyer Show to discuss Unraveled, BizTalk Radio (Jan. 11, 2017) (Audio, Post).
456. Quoted in “Judge Danny Boggs to Take Senior Status,” National Review Bench Memos (Jan. 10, 2017).
457. Quoted in “Trump SCOTUS Short-Lister Gorsuch: Five Things to Know,” Bloomberg BNA United States Law Week (Jan. 9, 2017).
458. Guest on “It’s Your Turn” with Dave Malarkey, WISB 680 AM, to Discuss Unraveled and SCOTUS (Jan. 6, 2017) (Post, Audio).
459. Quoted in “Handicapping Donald Trump’s Supreme Court Shortlist,” Above The Law (Jan. 6, 2017).
460. Quoted in Trump Vows Action on Obamacare as GOP Weighs Options, Lifezette (Jan. 4, 2017).
461. Guest on AM740 KTRH to discuss federal court vacancies to be filled by President Trump (Jan 2, 2017) (Audio 1, Audio 2).

In Part I of this series, I concluded that the “president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” For purposes of either a criminal conviction, or an impeachment trial, I wrote, “the question of whether the president obstructs justice will turn on whether his actions are supported by Article II itself.”

Part II advanced a framework to understand how the Constitution’s negative limitations on Congress’s powers and positive vestings of power to the president both limit the scope of what can constitute “high Crimes and Misdemeanors.” With respect to the negative limitations, if the Constitution limits Congress’s power over certain areas—such as the religious test clause or the free speech clause—Congress lacks the power to define “high Crimes” on those bases. In a similar fashion, because the Constitution disables the president from, for example, violating a person’s life, liberty, or property, without due process of law, such conduct could give rise to “high Crimes.” On the flip side, when the Constitution grants the president and vice president certain positive powers, Congress cannot then define “high Crimes” on those bases.

This third installment will consider how “obstruction of justice” can serve as the predicate for “high Crimes,” with respect to the impeachments of Presidents Richard Nixon and Bill Clinton. Finally, this entry will discuss how the positive vestings of power over foreign affairs in President Trump, combined with his absolute power to remove a principal officer, could serve as the basis for his defense against obstruction of justice charges, either in a criminal court or a court of impeachment.

“Obstruction of Justice” and Presidents Nixon and Clinton

Professor Charles L. Black, Jr., in his classic volume on impeachment, concluded that obstruction of justice could be an appropriate ground for impeachment “when it occurs in connection with governmental matters, and when its perpetrator is the person principally charged with taking care that the laws be faithfully executed.” As I noted in Part I of this series, historical practice bears out Black’s determination that obstruction of justice can constitute a “high Crime[]” for purposes of the impeachment power; but not in all contexts. The first article of impeachment against President Nixon asserted that “in violation of his constitutional duty to take care that the laws be faithfully executed, [Nixon] has prevented, obstructed, and impeded the administration of justice.” Specifically, the president, “using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.” This conduct included “counselling witnesses with respect to the giving of false or misleading statements” and “[a]pproving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses.” In other words, Nixon told his subordinates to lie, and he sanctioned the payment of bribes as hush money.

There were no discernible negative limits on Congress’s authority to impeach and remove President Nixon for this conduct. Congress has a longstanding practice of criminalizing bribery, witness tampering, and related offenses. Nor are there any positive limits on Congress’s determination that obstruction of justice constitutes a “high Crime[].” Specifically, why did the House of Representatives conclude Nixon took these actions? “[F]or the purpose of securing political intelligence.” In no sense can that purpose be chalked up to one of Article II’s affirmative grants of power. Nixon could not—and did not—cite any of his positive Article II powers to justify interfering with the investigations, including bribing witnesses and instructing others to lie, that would contract the scope of impeachable offenses.

The articles of impeachment against President Clinton asserted several different grounds on which he obstructed justice. Article I, for example, provided that Clinton “willfully corrupted and manipulated the judicial process of the United States” by “impeding the administration of justice.” For what purpose did the House of Representatives conclude Clinton “willfully provided perjurious, false and misleading testimony to the grand jury”? “[F]or his personal gain and exoneration.” Like with Nixon, there are no negative limits on Congress’s authority to include this conduct under the umbrella of “high Crimes.” Further, there was no conceivable positive Article II power to justify Clinton lying under oath about his peccadillos, that would contract the scope of “high Crimes.” Though neither Nixon nor Clinton was convicted, these articles of impeachment were both negatively and positively proper.

The Positive Limits on “Obstruction of Justice”

After months of swirling rumors and baby-cannon fires about collusion, President Donald Trump’s critics now view obstruction of justice as the leading ground for criminal prosecution or impeachment. Specifically, they assert that President Trump unlawfully interfered with the investigation into L’Affaire Russe. The primary predicate offense for this claim is Trump’s firing of FBI Director James Comey. Everyone—even the president’s staunchest critics—concede that Trump had the absolute power to remove Comey from office. Rather, what renders it criminal, or impeachable (I will treat the two interchangeably for purposes of this analysis), is Trump’s justification for the decision.

For example, Daniel Hemel and Eric Posner assert that the removal would be improper if it was done for improper motives: namely “personal, pecuniary, or purely partisan ends.” (I do not accept this framework in all of its respects—especially the conclusion that an elected official is barred from taking “purely partisan” actions—but I will work with it here.) The authors, though, concede that few actions are ever motivated by a single cause. In a complicated world, difficult decisions are made based on an array of factors.

In their thorough article, they consider possible complications that could arise when the president acts on mixed motives. “Imagine that the president intervenes in an investigation both,” they write, “because he fears that it will bring to light information that might stymie a critically important diplomatic effort and because he fears it will reveal evidence that a foreign power meddled in the last election to bolster his own bid.” Drawing from case law concerning non-presidential obstruction, Hemel and Posner posit a “but-for motive” standard to resolve such cases: “If the president would have taken the challenged action for national security reasons or in executing his responsibility to take care that the laws are faithfully executed, then that fact should immunize him from obstruction liability,” even if other motives are provable. They add, “[t]he application of the obstruction statutes to the president should not prevent him from carrying out his constitutional role.”

Hemel and Posner’s framework lends itself well to understanding Trump’s firing of Comey. We know from the president’s own words that the initial proffered reason for the termination—Comey’s role during the investigation into Hillary Clinton’s email server—was not the true justification. “I was gonna fire [Comey] regardless of [the] recommendation,” Trump told NBC anchor Lester Holt. The president’s critics assert that once this pretextual justification is smoked out, we are left only with what Hemel and Posner would call “personal, pecuniary, or purely partisan ends.” The analysis does not end here. Rather, a careful study must be made about whether there are any negative or positive limits on charging Trump’s conduct as obstruction of justice. If such limits exist, then President Trump’s action would receive constitutional immunity. The groundwork for such a defense has already been laid, and it begins, of all places, with James Comey’s own testimony to Congress.

Removing Comey and the “Cloud”

In testimony to the Senate intelligence committee, James Comey recalled a March 30 phone call that the president placed to his FBI office:

He described the Russia investigation as “a cloud” that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to “lift the cloud.” I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.

Comey also recounted one his final phone conversation with the President on April 11, 2017:

On the morning of April 11, the President called me and asked what I had done about his request that I “get out” that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that “the cloud” was getting in the way of his ability to do his job.

During an exchange with Sen. Dianne Feinstein, Comey elaborated on his impression that the president viewed the Russia investigation as posing a “cloud” on his ability to govern:

FEINSTEIN: You describe two phone calls that you received from president trump. One on March 30th and one on April 11. He, quote, described the Russia investigation as a cloud that was impairing his ability, end quote, as president, and asked you, quote, to lift the cloud, end quote. How did you interpret that? What did you believe he wanted you to do?

COMEY: I interpreted that as he was frustrated that the Russia investigation was taking up so much time and energy. I think he meant of the executive branch, but in the public square in general. It was making it difficult for him to focus on other priorities of his. But what he asked me was actually narrow[er] than that. I think what he meant by the cloud — and, again, I could be wrong — but the entire investigation is taking up oxygen and making it hard for me to focus on what I want to focus on. The ask was to get it out that I, the president, am not personally under investigation.

Ironically enough, Comey’s account that Trump viewed the Russia investigation as a “cloud” was confirmed by—of all people—the Russians. On May 10, 2017, the day after firing Comey, the president met with several Russian officials in the Oval Office. The New York Times recounted that Trump told the Russians that firing Comey “had relieved ‘great pressure’ on him.” According to the report, Trump said “I just fired the head of the FBI. He was crazy, a real nut job … I faced great pressure because of Russia. That’s taken off.” As Comey explained, the Russian investigation was placing a cloud over the president’s ability to govern on foreign policy.

Sean Spicer, then the White House press secretary “did not dispute the account.” Rather, Spicer said “[b]y grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia.” Once again, framed as pressure, this rational bolstered the “cloud” argument that Comey recalled.

At the time, Neal Katyal suggested in a series of tweets that the Trump administration may defend the firing of Comey based on such foreign policy concerns:

[White House] is exploring mounting (or creating) a foreign policy defense for firing Comey. They are trying to develop the story that Comey was creating foreign policy problems, that his investigation was undermining closer relationships with Russia, and that the Pres[ident] has the prerogative in foreign affairs to do as he sees fit. Put simply, it appears that the rationale for firing Comey will be “it’s not obstruction of justice, it’s foreign policy.”

I flagged these tweets in my Lawfare post about whether Trump could fire Special Counsel Robert Mueller, but they are even more relevant here. Specifically, the argument Katyal raised forms the basis for a positive limitation on Congress’s power to impeach the president for obstruction of justice. Indeed, there is historical precedent here, though not a particularly glorious one. Attorney General Elliot Richardson, who resigned rather than fire Special Counsel Archibald Cox, recalled a similar entreaty from President Nixon during the Saturday Night Massacre:

I met with [Nixon] in the Oval Office. He knew I was going to resign rather than fire Cox, and he tried to talk me out of it. He painted a dire picture of the international crisis precipitated by the Yom Kippur War, the nuclear alert he had invoked the night before, and the possibility that Brezhnev would think that he has lost control of his administration. All of that was very disturbing. He urged me to delay my resignation until after this crisis had abated.

Nixon argued that the ongoing investigation into Watergate diminished his reputation on the international stage, and would make it tougher to interact with—of all foreign powers—the Russians (some things never change). This argument is not without merit. While Americans often get bogged down in the nuances of day-to-do domestic squabbles, in the foreign press, an investigation into the presidency resonates on a very profound level. Such an investigation suggests that the current president cannot be trusted, that his administration may soon come to an end, and that deals struck with that president are to be fleeting. In Zivotofsky v. Kerry, the Supreme Court explained that “Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights.” All of these questions hinge on the stability of the Commander in Chief. Questions abroad about the unity of the executive can frustrate American foreign interests. As Hamilton explained in Federalist No. 70, a lack of unity in the presidency can frustrate “[d]ecision, activity, secrecy, and dispatch”—essential attributes of any foreign policy, where the United States must speak with “one voice.”

Zivotofsky and the Positive Limits on Obstruction of Justice

Comey’s testimony, the leaked conversation with the Russians, and Spicer’s statement, lay the grounds for the (inevitable) positive defense against a criminal prosecution, or an article of impeachment: specifically, that the Article II powers over foreign affairs precludes Congress from punishing President Trump for his conduct in firing Comey. Here, Zivotofsky v. Kerry bolsters Trump’s case. Zivotofskyconcerned whether Congress could require the secretary of state to update a passport to signify that a person born in Jerusalem was, in fact, born in Israel. Until this month, the United States did not recognize the city of Jerusalem as part of the nation of Israel. Thus, the court had to consider whether Congress improperly interfered with the president’s power to recognize foreign nations; that is, whether the recognition power is “exclusive” or one that is shared between the legislative and executive branches.

Though the phrase “recognition” appears nowhere in the Constitution, Justice Anthony Kennedy’s majority opinion derived from Article II’s structure that this power is exclusive. For instance, “it is a logical and proper inference,” Kennedy wrote, “that a Clause directing the President alone to receive ambassadors would be understood to acknowledge his power to recognize other nations.” In addition, he supported his conclusion based on the President’s power to initially “makeTreaties”—that is, the “sole power to negotiate treaties”—a precondition to seeking subsequent senatorial consent. Critically, “the President himself has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers.” As relevant to the present case, “[t]he Constitution thus assigns the President means to effect recognition on his own initiative.”

The power to “open diplomatic channels simply by engaging in direct diplomacy,” is without question, a positive grant of power to the president, and thus a limitation on the scope of what can constitute a “high Crime[].” To put it in terms of the Supreme Court’s opinion in Morrison v. Olson, which I discussed in my previous post, the president would be immune from an obstruction charge if such a restriction would “impermissibly interfere with the President’s authority under Article II.” Impermissibly interfering with the president’s ability to maintain “diplomatic channels” and engage in “direct diplomacy” would be unconstitutional.

Once again, Zivotofsky provides a relevant analogy. “The various ways in which the President may unilaterally effect recognition,” Justice Kennedy explained, “and the lack of any similar power vested in Congress—suggest that it is” exclusive. Likewise, the various ways the president can “open diplomatic channels simply by engaging in direct diplomacy”—and eliminate the impediments thereof—and the lack of Congress’s power to interfere with such decisions (beyond confirming ambassadors), confirm that his power is exclusive, and cannot be cabined by prosecution, impeachment, or otherwise.

It is true that any agreement the president reaches will inevitably wind up at Congress’s doorstep—either through the treaty ratification process (Cf. Iran deal) or through the need for an appropriation. Accordingly, the Zivotofsky court observed, “Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties.” The same reasoning goes for diplomacy. But in the first instance, the executive branch has unfettered powers over preliminary discussions with foreign nations. This is especially true when it is the president, and not an appointed ambassador, who engages in such direct diplomacy.

The Zivotofsky court offers a relevant standard for our situation: “If the President is to be effective in negotiations over a formal recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that precise question.” There cannot be doubts about who is in charge, and whether promises made will be promises kept. There cannot be, in President Trump’s own words, a “cloud” over his ability to govern on matters of foreign affairs. In Trump’s defense, firing Comey was what enabled the opening of such channels. One could call it an Article II “reset.”

Because the president’s power here is “exclusive,” in the eternal words of Justice Robert Jackson, it “disable[es] the Congress from acting upon the subject.” That includes criminalizing that conduct, or impeaching the President on that basis. While Chief Justice John Roberts’s Zivotofsky dissent questioned whether the “Constitution provides the ‘conclusive and preclusive’ power required to justify defiance of an express legislative mandate,” with respect to the controverted recognition power, the analysis would be quite different concerning the far more mundane authority over the management of diplomatic channels. If the charges against Trump’s firing of Comey are ever litigated in court—whether Article I or Article III—Zivotofsky will play an important role. (I pause to stress that the Senate, sitting as a court of impeachment as a coordinate department of government, is in no sense bound by the judgments of the Supreme Court; that precedent is only persuasive.)

Morrison and the Negative Limits on Obstruction of Justice

Zivotofsky only concerns the positive limits on possible charges against President Trump concerning obstruction of justice. Morrison v. Olson explains a negativelimitation on such charges. Specifically, the president has the absolute power to remove “principal officers.” Chief Justice William Rehnquist’s majority opinion concluded that because independent counsel Alexia Morrison was an “inferior” officer, her insulation from the traditional removal process was permissible. (This conclusion about such a powerful officer is utterly implausible for the reasons pointed out by Justice Antonin Scalia’s dissent.) But there is no doubt that the FBI director is subject to firing for any reason, or no reason at all, per the ruling in Myers v. United States. To quote again from Justice Jackson’s Youngstown concurrence, where the president’s power is “exclusive,” it “disable[es] the Congress from acting upon the subject.” That would include subjecting him to a criminal prosecution, or impeachment on that basis. Doing so would, in the words of the Morrison Court would “impermissibly interfere with the President’s authority under Article II.” Whatever Morrison means—and whether it remains good law, an open question—Congress is disabled by imposing this negative restriction.

***

President Trump’s firing James Comey is supported by both the positive grant of authority over foreign affairs, and is enabled by the negative restrictions on Congress’s power over the removal of principal officers. Congress lacks the statutory authority to criminalize these actions. Were such a charge to be brought—before or after the president leaves office—the obstruction of justice statute, as applied, would be unconstitutional. Further, these positive and negative restrictions curtail the scope of conduct that qualifies as a “high Crime[].” Therefore, an article of impeachment based on this conduct would be positively and negatively improper.

Cross-Posted at Lawfare

President Donald Trump’s lawyer, John Dowd, asserted that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” In a follow-up interview, Dowd added that the president “has more power and discretion on that matter tha[n] DOJ and FBI put together. He cannot obstruct himself!” This position is ultimately incorrect, but buried within it are three important statements about the separation of powers. First, Dowd unambiguously embraced the unitary executive theory: the Department of Justice (DOJ) and FBI do not have any executive power, but for the president’s own delegations. Second, because the president is the executive branch personified, and is ultimately responsible for all criminal investigations, the president cannot obstruct that process. Third, because the president is legally unable to obstruct justice, he cannot be held liable for such actions.

I agree with the first argument, concur-in-part with the second, and dissent from the third. Although the president is unitary, certain structural limits exist over his control of federal law enforcement. The president can obstruct justice. However, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution. Thus, the question whether the president obstructs justice will turn on whether his actions are supported by Article II itself.

As a constitutional matter, the Justice Department does not exist, but for the president. It’s true that Congress establishes the agency, creates its offices, appropriates funds, and confirms the president’s nominees. But there is one attribute of DOJ that Congress does not—and indeed cannot—delegate: the executive power. “Governmental investigation and prosecution of crimes is a quintessentially executive function,” Justice Scalia explained in his Morrison v. Olson dissent — a point with which the majority did not disagree. This authority exists in the president, and the president alone. Article II, Section I explains “[t]he executive Power shall be vested in a President of the United States of America,” and no one else. Once the attorney general or FBI director is confirmed, the president can then delegate his executive power to those officers, and maintain that delegation so long as doing so satisfies his duty to take care that the laws are faithfully executed. In turn, those principal officers can then delegate that executive power—concerning law enforcement and other matters—to their subordinates as provided by law. However, the president maintains the absolute power to withdraw that authority for any reason, or no reason at all. Here, I table the constitutional status of independent agencies, and even the independent counsel statute addressed in Morrison, precisely because under current law, Robert Mueller is under the authority of the Justice Department.

In this sense, Dowd is correct that the president “is the chief law enforcement officer.” Further, at least with respect to the breadth of executive powers, the president indeed does “ha[ve] more power and discretion on that matter tha[n] DOJ and FBI put together.” The whole is greater than the sum of its parts. But this does not mean that the president has unfettered authority over the administration of justice. Starting from first principles, the Constitution enumerates “bribery” and “treason” as explicit grounds for impeachment. If the president accepted a bribe in exchange for signing an executive agreement that gave aid and comfort to foreign belligerents—even though these are actions in his official capacity—the president could be removed from office by Congress. This otherwise lawful act amounts to bothbribery and treason. However, the lawful exercise of an Article II power — whether signing an executive agreement or vetoing a bill — does not give rise to an impeachable offense.

By similar logic, the House of Representatives could include another article of impeachment if the president subsequently removed an attorney general because he was investigating such an offense. Whether or not Congress codified “obstruction of justice” as a crime—it did so fairly early on in 1831—this termination could be subsumed within the broader category of “high Crimes and Misdemeanors.” Practice bears out this construction, as the articles of impeachment for both Presidents Richard Nixon and Bill Clinton included counts for obstruction of justice. Here, Dowd is incorrect: The president can obstruct justice. Regardless of whether a sitting president can be indicted in federal court for such acts, he can be removed from office for doing so. None of this should be controversial.

Yet, none of these niceties resolve the controversy of the day: whether Trump’s actions violate federal law, or amount to “high Crimes and Misdemeanors.” The analysis for the former category is easier than the latter, but both ultimately wind up in the same place.

Congress cannot, by statute, take away a power that the Constitution vests in the president. Myers v. United States held that Congress cannot strip the president’s absolute authority to fire officers who are subject to his control. Morrison v. Olsonupheld the independent counsel statute precisely because it did not “impermissibly interfere with the President’s authority under Article II.” In contrast, Zivotofsky v. Kerry did impermissibly interfere with the president’s authority because Congress required the president to recognize foreign nations. In Myers and Zivotofsky, statutes that deprived the president of his constitutional authority were invalidated.

A prosecution brought under the federal obstruction of justice statute that impermissibly interfered with the president’s constitutional authority would be, as applied to such a case, unconstitutional. (I offered a similar analysis concerning regulations that purport to limit the president’s power to remove the special counsel.) The difficult question, though, is on which side of the Morrison v. Olson line such a prosecution would fall. Chief Justice William Rehnquist’s majority opinion affirmed the Ethics in Government Act because it gave “the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.” This line — which may or may not be supported by five justices on the current Court — is the clearest line we have. If such a criminal prosecution disabled the president from “perform[ing] his constitutionally assigned duties,” the obstruction statute, as applied, would be unconstitutional.

A different analysis would pertain if the Senate, sitting as a court, alleged that the president’s interference with an investigation amounted to a “high Crime[] and Misdemeanor[].” This charge would not present the problem of a statute conflicting with the Constitution; in every such case, the Constitution prevails. Rather, it would present a clash within Article II, between the president’s assertion of authority under Sections 1 through 3, and the impeachment clause in Section 4. What happens when one provision of the Constitution conflicts with another? Specific grants of powers must prevail over less specific restrictions on power. That is, the president’s enumerated authority to take care that laws are faithfully executed—which embraces the unenumerated removal power—takes precedence over the undefined genre of “high Crimes and Misdemeanors.” I tender this rule with some trepidation because, admittedly, there is scant guidance to be had. My guiding principle is Hamilton’s warning in Federalist 65 about the potential political abuses that are inherent in the impeachment process. The Framers, cognizant of this risk, deliberately imposed a super-duper two-thirds majority for removal (the same standard to propose amendments to the Constitution itself) and required the chief justice to preside. The presumption should support leaving the president in office if there are any constitutional doubts, and not removing him.

Either as a matter of statutory or constitutional law, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution. Part II of this series will consider whether Trump’s actions concerning the firing of FBI Director James Comey comport, or fall outside, this principle.

Cross-Posted at Lawfare

Class 26 – 11/9/17

Protecting “Dignity” II

• Obergefell v. Hodges (Read the full opinion)

The lecture notes are here.

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives.

Here are a few other pictures from the event.

In 2012, 538 forecasted support of same-sex marriage over the next eight years. This did not turn out to be accurate.