Author Archive | Nick Rosenkranz

Senator Ted Cruz: Limits On The Treaty Power

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing. [...]

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House Judiciary Committee Hearing: Take Care Clause

On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN.

UPDATE: I will be discussing this with Greta on Fox News, Tuesday, Dec 3, 7:30pm. [...]

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James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money

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The New York Times Loves Arguendo

A few weeks ago, I posted about Arguendo, a new show by Elevator Repair Service Theater (ERS), which opened last night at the Public Theater in New York City. Arguendo is a sort of topsy-turvy dramatization of the oral argument in Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment. As a board member of ERS and an advisor on this project, I am pleased to report that the New York Times loves the show. Per Ben Brantley this morning: “A cool, obsessive genius animates the ever more fevered proceedings of ‘Arguendo,’ the Elevator Repair Service’s foray into the hallowed mazes of American jurisprudence….” It is, he says, a “wittily inventive” show that “keeps growing richer and more insightful in the remembrance.” The review is here. Details and tickets are available here. [...]

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Former Solicitor General Seth Waxman to Participate in Elevator Repair Service Theater Benefit

Last week, I posted about the excellent avant-garde theatre company Elevator Repair Service and the upcoming world-premiere of their new show, Arguendo, at the Public Theater in New York City. Arguendo is a dramatization of the oral argument of Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment.

As I mentioned in my prior post, there will be a special benefit performance on Sept 17th, followed by a post-show discussion with Amy Adler (NYU Law) and Jeff Toobin (CNN & The New Yorker).

I am now delighted to report that Seth Waxman, superb former Solicitor General of the United States, will also participate in the discussion.

After the discussion, there will be a party at my home.

Details and tickets are available here. [...]

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Is Martin Luther King’s Dream Unconstitutional?

Fifty years ago today, Martin Luther King, Jr., spoke these immortal words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” He would have been mystified, one imagines, by the question presented in Schuette v. Coalition to Defend Affirmative Action: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” [...]

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Lincoln on the Rule of Law

In response to my recent Wall Street Journal op-ed, David Whittington writes in to the Journal with a nice Lincoln quote from 1838: “As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and laws, let every American pledge his life, his property and his sacred honor; let every man remember that to violate the law, is to trample on the blood of his father and to tear the character of his own, and his children’s liberty.” [...]

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Elevator Repair Service Theater: Arguendo

Acclaimed avant-garde theatre company Elevator Repair Service (ERS) will soon present the world-premiere of their new show, Arguendo, at the Public Theater in New York City. Arguendo is a dramatization of the oral argument of Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment.

ERS has a following far beyond the usual downtown theatre crowd, largely because of the great triumph of their last show, Gatz!, which Ben Brantley of the New York Times called: “The most remarkable achievement in theater not only of this year but also of this decade.” I have been a fan of ERS for 20 years now, and I was proud to join the Board of Directors earlier this year.

Arguendo will run at the Public Theater in New York City, Sept 10 – Oct 6. On Sept 17th (Constitution Day), there will be a special benefit performance, followed by a discussion with Jeff Toobin (CNN & The New Yorker) and Amy Adler (NYU Law), and then a party at my home.

Ordinary tickets are available here. Tickets for the benefit are available here. [...]

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The Solicitor General’s Brief in Bond v. United States

Regular readers are familiar with Bond v. United States, the pending case that presents the question of whether, per Missouri v. Holland, a treaty can increase the legislative power of Congress. I posted about Paul Clement’s brief on behalf of Ms. Bond here, and I posted about my brief on behalf of the Cato Institute and other amici here.

The Solicitor General filed his brief last week, and it is now available here. Here is a taste (SG Brief at 47):

The Court should reject petitioner’s invitation (Br. 33) to overrule Holland. This Court has “always required a departure from precedent to be supported by some ‘special justification.’ ” United States v. IBM Corp., 517 U.S. 843, 856 (1996) (citation omitted). No such special justification is present here. And “[s]tare decisis has added force” when the Political Branches have “acted in reliance on a previous decision.” Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991). Since the founding, U.S. diplomats have negotiated with foreign powers armed with the assurance that the United States possesses the authority to ensure implementation of its treaty obligations, even in areas generally reserved to the States.

Read the whole thing. [...]

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Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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Arms and Persons

Eugene Kontorovich has argued that the plural “Arms” in the Second Amendment implies a right to more than one gun per person. I argued that “Arms” had to be plural to match “the right of the People,” plural, and so the plural tells us nothing about number of guns per person. Eugene responds with a comparison to the Fourth Amendment: “Is the ‘people’s’ right to be secure in their ‘houses, papers, and effects’ even arguably singular, or be [sic] restricted to one house, one paper, one effect?”

Fair enough, but Eugene skips a telling counterexample. The Fourth Amendment also protects “The right of the people to be secure in their persons ….” The word “persons” had to be plural — just as “houses,” “papers,” “effects,” and “Arms” all had to be plural — to match the plural word “people.” Nevertheless, each individual presumably has a right to be in secure only in his own, singular, person. So, the plural nouns in the text simply do not answer the question of number per person; even though both “persons” and “papers” are plural in the text, each individual has a right to be secure in his person (singular) and his papers (plural). At least as a matter of grammar, “Arms” could be like “papers” (presumably many per individual), or like “persons” (presumably one per individual).

Again, I am sympathetic to Eugene’s ultimate conclusion, but I don’t think that grammar proves the point. [...]

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