Balkinization

From Off the Wall to On the Wall: How Social Power Shapes Legal Reason

2026-07-24T09:42:00.000-04:00

I've posted my latest article, From Off the Wall to On the Wall: How Social Power Shapes Legal Reason, to SSRN. Here is the abstract:

Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy, incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims about which reasonable minds can differ. Some of these claims have eventually become part of the law, and a few have become orthodox, so that denying them would be off the wall.

This article explains how and why this happens. Arguments move along a spectrum of plausibility depending on who occupies important nodes of power and influence in society. These include political leaders, political parties, social movements, the media, elite lawyers, and legal intellectuals. When powerful actors invest in a fringe claim, they compel the legal profession to debate it. Arguments move on the wall not by general acceptance but by compelled engagement.

Several examples show how this dynamic works in practice. Arguments for same sex marriage only slowly gained traction because gays and lesbians had little social status and had to build support over decades. The constitutional challenge to Obamacare's individual mandate moved on the wall in only a few years because the Republican Party and conservative media were unified behind it. The equal protection argument in Bush v. Gore took only a month because control of the government was at stake. The Trump administration's recent challenge to birthright citizenship had the support of a sitting president, the MAGA social movement, the Republican Party, and the party's affiliated media and institutions. Conservative legal intellectuals quickly devised arguments designed to appeal to a Supreme Court six of whose members were conservatives appointed by Republican presidents.

Underlying this phenomenon is the dual nature of legal consciousness, which combines acceptance of shared professional norms with constitutional protestantism, the belief that individuals can interpret the Constitution for themselves. The phenomenon also exemplifies law's dual character as fixed in the short run and mutable in the long run. Legal education cultivates this duality, training lawyers both to treat existing law as authoritative and to creatively deconstruct it.

The theory recasts jurisprudential debates over legal indeterminacy from the nature of language to sociology and culture. Legal materials are flexible but not infinitely malleable; they are tilted towards entrenched interests until sustained social power changes them. Following these changes, constitutional culture frequently rewrites its own history. Formerly off-the-wall claims that win out are later heralded as always having been correct, while formerly accepted decisions, such as Plessy v. Ferguson, are denounced as “wrong the day they were decided.” This triumphalist narrative obscures the intense social and political labor required to shift the boundaries of professional reason.

Fiscal Floundering

2026-07-21T18:41:07.645-04:00

Our nation continues its transition from congressional to presidential fiscal control. Retainers of the ancièn regime (“Members of Congress” to you) fumble around looking for something to do as the Administration becomes increasingly assertive. No single recent event moved me to write, but putting several pieces together reveals a picture that is worth noting.

The congressional appropriations process is rapidly falling apart. Lacking the filibuster, House minorities have virtually no independent power when the majority is united. The House Republican Caucus is vehemently opposed to negotiating with Democrats so House Republican appropriators write extreme bills that can keep their Members on board but have no chance of getting the Senate Democratic votes needed to overcome the filibuster. This makes House appropriators of both parties increasingly ineffective.

For the past several years, then, appropriations bills were effectively negotiated in the Senate. This may be much more difficult this year because the Senate Appropriations Chair is one of the most endangered Republicans and can neither afford to alienate swing voters nor depress turnout in the MAGA base.

President Trump also threw a monkey wrench into the process of writing appropriations bills with his demand for a 44% increase in war spending in a single year. This half-trillion-dollar increase is far more than the total combined spending of welfare, Supplemental Security Income, nutrition assistance, foster care, child care subsidies, the Earned Income Credit, the Child Tax Credit, and unemployment compensation for next year.

To accommodate anything resembling this spending surge, appropriators must either further increase the deficit or wreck the rest of the budget. One might think that House Republicans would opt for deficit spending, with almost all having thrown fiscal caution to the wind in enacting last summer’s upper-income tax cut legislation. For the moment, at least, an assortment of fair-weather fiscal hawks are insisting that the defense increase be offset with cuts in domestic spending. (Reportedly some have already told Republican leaders what favors for their districts would suffice to induce another round of fiscal amnesia.) But any appropriations bills that transferred anything remotely resembling this amount of money from domestic to defense spending could never get the Democratic votes necessary to surmount a Senate filibuster. That leaves both House and Senate Republican appropriators stuck. With many people suspecting that President Trump will veto any appropriations bill that does not contain the voter-suppressing SAVE Act, few have much incentive to take bold, risky decisions to move appropriations.

Speaker Mike Johnson has tried to break this impasse by proposing that they move a large part of the defense increase through special majoritarian “reconciliation” procedures. This is getting to be quite a habit. Republicans invoked reconciliation to pass their upper-income tax cuts last summer without Democratic votes and then did so again this spring to provide opulent funding with no accountability to the Department of Homeland Security and its immigration enforcement agencies. Why not go for a hat trick?

Procedurally, Republicans can indeed return to that well a third time in one Congress. (The Congressional Budget Act limits how often the majority may invoke reconciliation, but they can make this one work.) Politically, however, forcing Republicans to cast vote after vote to fund a wildly unpopular, failed war is not very attractive. Moreover, reconciliation rules give Senate Democrats two separate opportunities to force numerous votes on politically uncomfortable amendments. Practically, reconciliation consumes a lot of floor time, which is scarce with nervous Members eager to go home to shore up their re-election prospects. And institutionally, the habit of addressing more and more difficult spending questions through hyperpartisan reconciliation sends the appropriators, particularly the genuinely bipartisan Senate Appropriations Committee, steadily toward irrelevance.

House Republicans have been looking desperately for offsets to make a military reconciliation bill look less like the budget-buster that it would be. Reportedly they tried claiming that an increase in state anti-fraud administrative money would yield savings from fewer fraudulent payments in anti-poverty programs; following longstanding scorekeeping principles, the Congressional Budget Office refused to attribute any savings to this scheme as these programs already have extremely low fraud rates. At present, Republicans lack the votes even to start the reconciliation process in either chamber.

Unable to move either regular appropriations bills or a partial substitute via reconciliation, attention is turning to the “continuing resolution” that will have to be enacted to prevent a partial government shutdown on October 1. These bills typically freeze funding at the prior year’s nominal-dollar level, which stresses agencies due to inflation. In crafting continuing resolutions, the parties typically negotiate a modest number of “anomalies”, deviations from the freeze level to reflect unusual funding needs (such as major disasters or the decennial Census).

The Administration just submitted its list of proposed anomalies to Congress. It is instructive. Not surprisingly, it is trying to smuggle in as much of its military spending request as possible into the anomalies process. It also seeks retroactive congressional approval of impoundments of domestic programs’ funds that it has already implemented. It is urgently seeking a $30 million increase in funding for the Department of Justice to pursue “fraud”; since returning to office, the Trump Administration has used vague, unfounded accusations of fraud to justify harassing and defunding blue states that it particularly detests (while ignoring far more serious integrity problems in red states). The Administration’s request accelerates the availability of disaster response funds, reportedly at the insistence of a North Carolina Republican threatening to withhold his vote from fiscal legislation. And it seeks an additional $113 million for the National Park System to cover the costs of the President’s 250^th anniversary celebration. I certainly hope nobody tells the waste-fraud-and-abuse people what the attendance at that celebration was. (I would not be surprised if there was an Arc d’Trump hiding in that budget request as well.)

Implicitly signaling that bipartisan agreements on appropriations will be increasingly rare, some senators in both parties are working on legislation to regularize impasses. Proposals’ details vary, but most would automatically activate a continuing resolution with less money than programs need to continue providing current services. Making this the default will give those seeking budget cuts even less reason to negotiate appropriations bills and forcing programs’ proponents to make concessions to avoid automatic cuts. This will set domestic programs’ funding on course to ratchet down over time. Ending individually negotiated continuing resolutions also will eliminate one of the few vehicles still available for restraining the Administration’s worst excesses, such as its forthcoming rule politicizing the federal grants process.

Government shutdowns are costly and messy, but they are also our primary means of getting the electorate to adjudicate the parties’ genuine disagreements. Just as the disappearance of trials deprives civil litigants of benchmarks for valuing their cases, so, too, the absence of verdicts from the electorate on government shutdown would leave the parties with little guidance on how they should limit their demands. This would make partisan divisions even sharper and more intractable.

To end on a positive note, I would encourage those interested in an example of Congress acting fairly forcefully to restrain the Administration’s impoundments of appropriated funds to read my recent op-ed with Cerin Lindgrensavage.

@DavidASuper.bsky.social @DavidASuper1

America at 250: A “Christian Nation,” But Which Christianity?

2026-07-17T09:30:00.000-04:00

Arvind Kurian Abraham

As fireworks lit up the sky this Fourth of July, the United States of America turned 250. Barring the heatwave, the celebrations were spectacular, the patriotism genuine, and the questions, as ever, complicated. Among the most persistent: Was the United States founded as a Christian nation? The question has gained fresh attention this year. The White House’s Rededicate 250 initiative, hosted under its America Prays framework, has made faith central to the semiquincentennial, inviting Americans to see prayer and religious heritage as inseparable from the founding. Vice President J.D. Vance, who converted to Catholicism in 2019, recently remarked in an interview, “I do think in a very foundational sense the country is a Christian nation.” However, if we are going to invoke the Christianity of the Founders, we need to ask which Christianity they had in mind. The answer, buried in the fine print of the Declaration of Independence itself, is more uncomfortable than the celebration suggests.

The Founders were, broadly speaking, Christian. Most of the signers of the Declaration were Protestants, though some were proto-Unitarians and Deists. They invoked providence and prayer. However, “Christian” in 18th-century colonial America carried a very specific, often exclusive meaning, and it frequently meant not Catholic. As historian Maura Jane Farrelly documents in Anti-Catholicism in America, 1620–1860, anti-Catholic prejudice was not a fringe sentiment in the colonies; it was structural. From the earliest settlements, Roman Catholicism was coded as the religion of tyranny, superstition, and foreign domination. Colonial anti-Catholicism was not homegrown. As historian Linda Colley has argued, Protestant identity forged through centuries of war against Catholic kingdoms was central to what it meant to be British — and the colonists carried that inheritance across the Atlantic with them.

This brings us to a clause in the Declaration of Independence that has largely been forgotten: the grievance against the Quebec Act of 1774. We remember the Declaration for its creedal preamble — that all men are created equal, and that among their unalienable rights are life, liberty, and the pursuit of happiness. However, the Declaration was primarily a list of charges against King George III. The Declaration lists among its indictments against the King that he had given his assent to legislation “for abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary Government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.” That “neighbouring Province” was Quebec. That “Arbitrary Government” was, in large part, the legal accommodation of the Roman Catholic Church. The Continental Congress passed a resolution on October 14, 1774 decrying the law as “establishing the Roman Catholic religion” in Quebec.

The Quebec Act of 1774 was actually a decade in the making — a measured, even painstaking attempt by Prime Minister Lord North’s ministry to govern a colony largely made up of French Catholics who had been left in a legal vacuum since the Proclamation of 1763, which had made no specific provision for this overwhelmingly Catholic population, despite there being only a few hundred British Protestant settlers in the colony. The Act restored French civil law and the right of Catholic clergy to collect tithes from their parishioners. The intention, as the historical record shows, was pragmatic governance of a complex colonial situation.

However, American colonists saw it very differently. As historian Peter D.G. Thomas establishes, the Quebec Act provided two pieces of explosive propaganda for the American cause. First, what colonists portrayed as the alleged creation of a “Papist absolutism” on their northern border that could serve as a base for curbing Protestant liberty further south; and second, a boundary extension that hemmed in American westward expansion. Critics back in London, Thomas notes, “mainly sought to exploit religious prejudice,” resorting to what he calls “quite unscrupulous misrepresentation.” The London Evening Post wildly claimed that Protestants in the enlarged Quebec “may not even enjoy the toleration of the Protestant religion, and may be hanged or burned as heretics.” When George III made his way through Whitehall to give his royal assent, the London Evening Post the next day reported that “the universal cry was 'No Popery! No French laws!'”

It is worth being precise about what the Quebec Act actually did with respect to the Catholic Church, because the colonial propaganda often obscured this. The British were careful to contain the scope of Catholic ecclesiastical authority. Lord Dartmouth, Secretary of State for the Colonies, explicitly told critics that the Catholic Bishop of Quebec “would only have the minimum powers necessary for the practice of the Catholic faith.” The King’s supremacy, Dartmouth insisted, “must certainly be understood to be that which precludes all jurisdiction by authority of the see of Rome.” This was not an embrace of Rome, rather, it was a tightly managed, minimalist toleration, designed to keep a large Catholic population governable while explicitly blocking any broader papal authority.

The tithe provision sits at the heart of the church-state questions the Quebec Act raises. Colonial critics viewed the state enforcement of payments to Catholic priests as a form of religious establishment that violated Protestant liberties. However, the irony is pointed: many of the colonies protesting state support for the Catholic Church in Quebec had their own established Protestant churches at home. The objection was not to state-church entanglement as a general principle; it was to that church being supported by the state.

Anti-Catholicism, as Farrelly’s scholarship makes clear, was woven into the very fabric of how colonial Americans understood religious liberty. Anti-Catholic sentiment in colonial America had its own popular ritual: “Pope Day,” the American equivalent of England’s Guy Fawkes Day, which featured mock processions and burning effigies of the Pope. The alliance with Catholic France during the American Revolution began to shift this culture. George Washington, recognizing the contradictions of celebrating anti-Catholicism while accepting French Catholic support, forbade his troops from observing Pope Day altogether. Anti-Catholicism was not immune to realpolitik. The Continental Congress did attempt to woo Canadian Catholics into the revolutionary cause, even as its own resolutions rang with anti-Catholic rhetoric, an overture that found few takers. It is also worth noting that Charles Carroll, a Catholic, did sign the Declaration. He most likely believed that supporting the revolutionary cause would help integrate Catholics into an overwhelmingly Protestant society. Furthermore, he was no champion of expansive papal authority.

The founding era brought further, if uneven, change. The Federal Constitution broke with colonial practice by prohibiting Congress from imposing any religious test for public office, a significant departure from the restrictions that still appeared in various state constitutions. The promotion of religious tolerance by Thomas Jefferson and James Madison helped soften official hostility further, and gradually state constitutions began dropping their clauses limiting the civil liberties of Catholics. Yet anti-Catholic rhetoric did not disappear; it migrated into partisan politics, finding a home in the language and culture of the Federalist Party. It was only with the defeat of the Federalists and the election of Jefferson to the presidency in 1800 that this particular strain of politically organized anti-Catholicism was significantly quieted, at least for a generation.

As America celebrates 250 years of independence, the question of what it means to be a “Christian nation” deserves this full, unvarnished history. Christian moral language undeniably permeated the founding era. However, the Christianity of many Americans in 1776 was also a Christianity that counted the legal toleration of Catholicism, even in its most limited and carefully hedged form, among its grievances against the Crown. We cannot fully understand what religious liberty meant to the founding generation without acknowledging what it did not yet mean, and for whom. That reckoning is not a threat to the American story. It is part of the American story.

Arvind Kurian Abraham is an SJD Candidate at Harvard Law School. You can reach him by e-mail at aabraham@sjd.law.harvard.edu.

Saint Alito

2026-07-15T09:24:59.647-04:00

Hagiography is an old literary form, dating back to early Christianity. It recounts the lives of the saints in order to elicit the audience’s admiration. Although its reverential character notoriously compromises accuracy, hagiographies can be worth reading as windows into the worldview of believers.

That’s the value of Mollie Hemingway’s remarkably uncritical biography, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. The book shows how Justice Samuel Alito and his fans think of themselves. It also exposes contradictions and delusions within the Alito-believer world view.

To her credit, Hemingway carefully responds to questions that have been raised about Alito’s judicial ethics.

To her enormous discredit, she crosses the line into unethical journalism by defaming the innocent.

I explain in a new piece at the Los Angeles Review of Books.

The State of the Article V Convention Battle

2026-07-13T22:19:53.603-04:00

Yesterday I suggested that progressives should reconsider the wisdom of increasing the weight and impact of decisions made in the current political environment. Although supported by only a small minority of progressives, efforts to call an Article V convention are the most dramatic efforts to raise the stakes. They also are the most irresponsible.

Progressive proponents of an Article V convention initially insisted that a convention was essential to campaign finance reform. This did not make much sense for several reasons, including the relative unpopularity of their vision of such reform with the public and the difficulty of devising politically plausible reforms that corporations and the ultra-rich could not readily evade.

Most significantly, a progressive outcome from an Article V convention is effectively precluded by the solid majority that the American Legislative Exchange Council (ALEC) and its allies would hold in such a convention. The Center for Media and Democracy surveyed all fifty states’ laws and found that Republicans would have complete control over twenty-eight state delegations, Democrats would have complete control over eighteen, and four delegations would likely require both Republican and Democratic assent for their selection. (Those states might prove unable to choose any delegates.) Only one state – Rhode Island – provides for popular election of delegates. We therefore would get a convention completely controlled by whomever the Republican legislative leaders of the various red states sought to send (most likely themselves) with no need to compromise, trade votes, or otherwise give progressives the time of day. Even a blue wave election in November will not give Democrats a majority of the states and is highly unlikely to deprive Republicans of their majority.

Not surprisingly, then, the progressive Article V convention effort championed by WolfPAC has run aground. It peaked in 2016 with just five states – all of them deep blue – and is now down to two states with active Article V applications.

Many progressives sensibly abandoned the project. Those that continued to support a convention found themselves in a bit of a jam. One response has been, in essence, “trust me”: proponents insisting that they are confident that Republican domination of a prospective convention can somehow be overcome while not offering the barest hint of how that might occur. With laws on delegate selection on the books and ALEC-aligned Republican majorities having no conceivable reason to change them, something more than “trust me” seems in order before the country takes to colossal gamble of opening up its fundamental document to amendment by moneyed interests.

Indeed, even if all the ALEC-aligned legislatures miraculously saw the light and amended their laws to allow popular election of delegates, it is far from clear that progressives would prevail. The twenty-sixth-most-liberal state is probably North Carolina, which has a solidly Republican legislature and Republicans winning most state elections. Several more-liberal states (such as Arizona, Georgia, New Hampshire, and Wisconsin) also have Republican legislatures while still more (such as Maine, Michigan, Minnesota, Nevada, and Pennsylvania) remain very competitive for Republicans. Progressives would have to run the table of these states’ delegations unless they could turn one or more even more conservative states, such as Florida or Iowa. A convention would be a progressives’ nightmare. (Many progressives sensibly oppose one-state-one-vote rules for a convention, but those rules benefit many more states than they hurt. Some progressives hope that the convention will agree to require a supermajority to act without offering any plausible reason why Republican legislators would voluntarily surrender control, least of all in today’s bare-knuckled political environment.)

Perhaps recognizing the implausibility of the “trust me” approach, progressive convention proponents are increasingly declaring that an Article V convention is inevitable so progressives might as well accept that and start preparing for it: “the convention is likely coming regardless and disengagement only guarantees progressives have no voice in the process”. Both halves of this claim are problematic. It is far from clear what “preparation” progressives could do now that would meaningfully affect what an ALEC-controlled convention might do. I have heard no concrete suggestions.

And ALEC’s ability to trigger a convention without progressive collaboration is highly dubious. To be sure, it has been spending prodigious sums promoting an Article V convention for many years. (The figures below include various groups promoting a convention for a balanced budget amendment, groups affiliated with the Convention of States Project (CoSP), and those promoting a convention to enact congressional term limits. They do not include any additional funds that ALEC may be spending directly.)

Yet despite all that spending, the ALEC-aligned groups have stalled at 28 states, six short of the constitutional two-thirds threshold. Over the past decade or so, ALEC-aligned groups claim to have secured Article V applications from all but three red states, but convention opponents have rescinded applications in every blue one. With the purple states more or less evenly split, it is difficult to see a path for ALEC-aligned groups to get to 34 states honestly even under generous counting rules. (The tallies presented here accept proponents’ calculations at face value; the continued viability of applications passed over four decades ago, and some state-specific aggregation and interpretation issues, will be for Congress to resolve if proponents start to move a resolution to call a convention. The designation of states below as “purple” is admittedly subjective, relying primarily on elections for state offices.)

ALEC’s allies began reaching a similar conclusion around 2017 as the last of the blue state applications from the 1970s and 1980s were being rescinded. They therefore started developing increasingly far-fetched versions of “fuzzy math” to reach the threshold. They tried arbitrarily designating applications passed over a century ago for entirely different purposes as “plenary”, supposedly seeking a convention on any topic. They claimed to have six such ancient applications in states that had rejected their proposals. Five of those six have now been rescinded.

One prominent voice in the ALEC-aligned world argued that Congress should disregard states’ rescissions of Article V applications under the doctrine of “mistake”. He argued that states acted in response to what he regards as misconceptions about Article V, such as concern about a “runaway convention.” Few others embraced this idea, perhaps recognizing what a Democratic Congress might do with the power to override state legislation on the grounds of “mistake” (e.g., force Medicaid expansion under the Affordable Care Act).

ALEC’s allies then insisted that all Article V applications should be counted, regardless of their purpose. This would reverse Congress’s longstanding policy of counting applications together only when they specified the same purpose for a convention. Had Congress followed the “all applications count” principle, we would have had an Article V convention in 1907 and every year since until 2025. Over a century of wildly different Congresses rejecting this theory, and of states acting on the assumption that applications could only be aggregated if their purposes matched, casts this theory’s legitimacy into great doubt. Nonetheless, several progressive states have responded by rescinding old, dusty applications. At this writing, more than one-third of the states have no active Article V applications at all.

The ALEC-aligned groups now seem to have settled on the “time machine” theory. Recognizing that they do not have the requisite two-thirds of the states today, they insist that, by retroactively applying their “fuzzy math” theories, they can say their forebears reached this threshold in 1979. On this theory, numerous Congresses, including those led by ardent ALEC allies and ones with majority support for a Balanced Budget Amendment, have been asleep at the switch for almost half a century. Of course, this means that the ALEC-aligned advocacy groups were also asleep at the switch for most of this time and that all their fundraising appeals to help them get the remaining states they need were, well, unfounded.

Supporters of an Article V convention to promulgate a balanced budget amendment, congressional term limits, or limitations on federal powers – the three core principles found in ALEC-aligned Article V applications – have filed litigation seeking to compel Congress to call an Article V convention on the “time machine” theory, to no avail. They reportedly are preparing new litigation to the same effect. How they will avoid the Political Question Doctrine, or establish that a federal court can order Congress to exercise its constitutional powers, is difficult to see. And even if they could get heard on the merits, they have little basis for saying that Congress has been wrong for over a century in how it has counted Article V applications.

With its path to 34 states largely blocked and little prospect of prevailing in court, ALEC’s remaining hope depends on winning over just enough gullible progressives. Progressive Article V groups have begun to work with ALEC-supported ones on the state level. For example, they introduced a resolution in Maine that would apply for an Article V convention for both term limits and campaign finance reform. A few years ago, a Democratic state senator gave ALEC a tie on an Article V application in Montana.

U.S. House Budget Committee Chairman Jodey Arrington has repeatedly introduced concurrent resolutions to call an Article V convention on the “time machine” theory. Republicans lack the votes to move such a resolution on their own – one prominent House conservative wrote a book entitled The Con of the Con-Con – but might prevail if progressive proponents persuade a few Democrats that an Article V convention could be a good thing.

The cynicism of the ALEC-aligned convention supporters is difficult to overstate. They insist that the risk of a runaway convention has been “debunked” and that a convention would somehow be confined to the purposes specified in states’ applications. (They do not explain who would enforce these limits or on what authority.) Yet they now propose to count together all applications for all purposes, including some that conservatives would loathe. If the convention is allowed to consider any topic in a state application then world federal government is on the table. Their mock conventions and fundraising appeals promote constitutional changes having nothing to do with fiscal responsibility, limiting federal powers, or term limits – such as capping the Supreme Court at nine justices or eliminating birthright citizenship.

Moreover, at the same time they insist that the ratification process will protect us against untoward amendments ALEC-aligned proponents seem to have settled on public referenda as their preferred ratification process. This is not one of the options Article V provides, but apparently they envision the referenda being accompanied by the election of slates of state ratification convention delegates who would be legally bound to follow the results of the referendum, much as voters invisibly choose presidential electors. ALEC’s ability to package superficially attractive but meaningless “progressive” provisions with core parts of its agenda, and the ability of its ultra-rich backers to flood the airwaves in advance of such referenda, should not be minimized. I have yet to see progressive Article V convention supporters engage seriously with this threat.

In short, the long, difficult, exhausting effort to prevent ALEC from triggering an Article V convention that it would control has accomplished a great deal. ALEC does not have a path to a convention that does not involve picking up almost all the purple states or securing Democratic defections in Congress. If progressives recognize this threat for what it is, ALEC cannot prevail. But if progressives wish-cast a convention as the solution to what ails us, they could mislead just enough state or federal Democratic legislators to bring this disaster down upon our already-reeling nation.

@DavidASuper1 @DavidASuper.bsky.social

Facing the Fundamental Choice: A Stronger or Weaker Federal Administration?

2026-07-12T22:48:49.521-04:00

Barely a day passes when I do not see some new plan for an anticipated “restoration” after President Trump leaves office. As 2029 approaches, I am sure we will see many more. Alas, I have yet to see a plan that thoughtfully engages with what should be the most foundational question in this process: do we seek a strong federal administration or a weak one? Or, put another way, is the goal to strengthen majoritarianism or to protect minorities that the majority may wish to trample?

The right answer to this question depends on how anti-MAGA thinkers envision the future. If they seek to empower future majorities and the party that controls the presidency and Congress, presumably they believe that they will hold majority power for the foreseeable future once Donald Trump passes – or at least that a stronger executive will allow them to build more than MAGA can destroy when holding the reins. The goal of this strategy presumably would be to make it impossible for the Republican Party to dominate power until it moderates and rededicates itself to democratic values, much as voters made Democrats wander in the wilderness for twenty of the twenty-four years between 1968 to 1992 because they perceived the party as being too far left.

Alternatively, if anti-MAGA thinkers believe that control of the federal government is likely to alternate frequently, they should limit the powers of any majority and support devices that allow minorities to block actions harmful to them. This would be particularly true if they believe that MAGA is more efficient at destroying than they are at building.

Of course, Democrats want to be a persistent majority and believe they should have the majority of the electorate’s support. But neither of those is the question. The question is one of prediction: do MAGA’s opponents believe they actually will be the majority? And, related, will they make maintaining majority electoral support their top priority? If so, then plans like dismantling the filibuster and remaking the Supreme Court might make practical sense. If not, those moves would be disastrous.

I see no reason to believe that Democrats will persistently hold a majority in years to come: I am convinced that Donald J. Trump will not be the last president to seriously threaten this country’s democracy in the near future. Further, I believe the liberal-progressive movement, as it currently stands, is structurally incapable of doing what is necessary to have a plausible chance of preventing another ruthless MAGA president from taking office. I therefore regard progressive proposals to raise the stakes for elections as not just misguided but profoundly reckless.

To start, alternating control of the White House would continue an entrenched recent pattern. Democrats have won half of the last two, four, six, eight, and ten presidential elections. The last Democrat to secure 53% of the popular vote was Lyndon Johnson over sixty years ago; in the intervening years, Republicans have surpassed 53% three times. Although some progressives like to point to President Trump’s relatively low popular vote totals, in both 2016 and 2024 extremely conservative candidates won about 51% of the vote while candidates on the left took 49%; the two elections differed primarily as to which coalition was more fractured. Even with the economy staggering and hundreds of thousands dying as the Trump Administration fumbled its response to the pandemic – failures that would have obliterated a Democratic candidate – President Trump still received almost 47% of the vote in 2020.

To be sure, President Trump is quite unpopular now, but he will not be on the ballot again. And his deep unpopularity has not translated into corresponding support for Democrats: at this writing, only 38% of voters think well of Democrats compared with 55% hostile to them. That is all but indistinguishable from Republicans’ 39% to 56% unfavorability rating. This is not the stuff of which dynasties are made.

The purification of the Democratic Party has come at a cost. For the first time in memory, Democrats hold no Senate seats from the 25 most conservative states. Republicans hold three seats from the 25 most liberal states (Maine, Pennsylvania, and Wisconsin) and hence control the Senate. The only consistently unreliable Democratic senator, Pennsylvania’s John Fetterman, won his primary against a representative with a solid voting record on the strength of progressive enthusiasm.

But current unpopularity is far from the biggest reason to think that Democrats will not be able to keep MAGA Republicans out of power. The Establishment and Progressive Wings of the Democratic Party would do well to adopt the Gingham Dog and the Calico Cat as their mascots. Each seems to view the marginalization of the other as a necessary predicate step to battling Donald Trump. Neither shows much willingness to accept that, with the country almost evenly divided between Left and Right, defeating MAGA Republicanism is only possible if both moderates and progressives enthusiastically engage. If either faction is vanquished, both will be vanquished.

To keep MAGA from regaining the reins of power, Establishment Democrats need to stop freaking out when progressive constituencies elect progressives. And to keep MAGA from regaining the reins of power, Progressive Democrats need to stop endangering seats in purple or red constituencies by applying purity tests to candidates there. Both need to stop supporting awful people just because they mouth their faction’s affirmations.

Although we may disagree about which positions so alienate moderates that they will cost the Party votes, it defies reality (and a vast political science literature) to insist that no such positions exist. Similarly, although we may disagree about which positions are so denigrating to the value of human life that they will alienate progressives and cost the Party votes, it defies reality (and the everyday experience with people who have been insulted) to insist that no such positions exist.

Yet Democrats lack any workable mechanism to discuss together which positions are too electorally toxic and to discourage those in the relevant faction from weighing the Party down with those positions. Instead, any reticence by Establishment Democrats is attacked as betrayal – likely causing some progressives to withhold their votes – while any complaints about denigrating statements are denounced as attempts at “political correctness” – likely alienating some moderates.

If they regain power, Democrats naturally will want to implement their program. Parts of that program are broadly popular, but parts definitely are not. They likely can afford to pursue some unpopular initiatives, but if they launch too many they will lose too many voters. Conversely, if they slavishly follow the polls rather than ever leading, they will disappoint progressives and lose voter turnout in the next election. Rather than being reflexively bold or reflexively timid, they must prioritize carefully.

Alas, Democrats also lack a workable mechanism for prioritizing their coalition’s initiatives to avoid alienating too many voters at once. Indeed, a great many progressives refuse to acknowledge that such trade-offs exist They fail to see that the middle- and long-term consequences of enacting multiple deeply unpopular measures at once can be devastating for vulnerable people, such as the immigrants and low-income people targeted when voters sweep MAGA back into power. Conversely, many Establishment Democrats seem to reject any initiatives that lead voters out of their comfort zones, condemning the Party to always playing from behind and losing the enthusiasm of the many low-engagement progressive voters.

Compromises are the life blood of coalition politics. Alas, compromise is largely infeasible with loud voices condemning any concessions “betrayal.” Many progressives’ fierce objection to the Build Back Better Act, which would have been the most transformative social legislation in at least a decade and perhaps half a century, shows the near-impossibility of crafting compromises that do not split the Party. And the constant denunciation of deals for what they do not include persuades low-information voters that Democratic officeholders are hopeless and not worth voting for.

All these problems might be remediable if the leaders of the various factions could negotiate definitive deals. Unfortunately, neither major faction has leaders who can and do command broad deference. Establishment Democrats have Minority Leaders Schumer and Jeffries, but neither has demonstrated, or even sought, the authority to commit their faction to compromises. Progressives have even less deference to leaders: Sen. Sanders did negotiate a common program with nominee-apparent Biden in 2020, but neither he nor Representative Ocasio-Cortez have made any regular practice of seeking deals with Party leaders. In practice, because many progressive social media influencers’ click-rates, and incomes, depend on raising hyperbolic criticisms, any progressive leaders attempting such negotiations would likely pay a high reputational price.

This is not to say that the Democratic factions can never come together to defeat the MAGA threat to our country. They did in 2020 when, led by African-American primary voters in South Carolina, they nominated a career politician with a thoroughly uninspiring record. But the infrequency and brevity of these truces demonstrate that far too many Democrats see intra-party warfare, and advancing their policy programs even at great electoral risk, as more pressing than definitively defeating MAGA’s threats to our country’s core principles and the well-being of vulnerable people at home and abroad. We are, for example, a far cry from the Hungarian progressives who cleared the field for non-Orban conservatives to end their country’s sixteen years of creeping authoritarianism or the Chileans who united behind a moderate conservative to end Pinochet’s rule.

As long as defeating MAGA remains only a conditional or intermittent priority – and in particular as long as the two main factions remain determined to subjugate one another in the pursuit of wholly unrealistic general election strategies – we will keep getting MAGA presidents and MAGA Congresses. And because the second Trump Administration has clearly demonstrated that destroying programs and institutions is far easier and faster than building them, any accomplishments Democrats may achieve during their brief interludes in power will be extremely fleeting. Democrats will not get far with any plans that depend on selling the trustworthiness of our federal government to other nations, to potential grant recipients here or abroad, or to prospective federal employees that do not want to suffer what hundreds of thousands did over the past year and a half. This country elected Donald Trump twice; unless we can show a fundamental change in the structure of our politics, nobody is going to believe this was merely a fluke.

We seem well on our way to an eight-year cycle in which Democrats have broad control for two years, a Democratic president is hobbled by one or both chambers of Congress for another two years, a MAGA president has broad control for two years, and the MAGA president remains in power but lacks a solid congressional majority for the final two years. This cycle is becoming self-reinforcing. Democrats’ brief intervals of control create a classic Tragedy of the Commons with every Democratic interest group demanding enactment of a maximalist version of their agenda in the brief moment when that is possible. The result is too-much-too-fast for many low-information centrist voters, and the midterm elections are a disaster.

Programs Democrats pass in their two years of dominance will barely be getting organized when a Republican Congress begins to starve them of resources and MAGA legal groups sue to block their implementation. The programs will have accomplished little by the time the next MAGA president eliminates them. Democrats can enact civil rights, environmental, and consumer protection laws during their ascendancy; by the time those laws take effect and violations can be investigated and prosecuted, the Democratic president’s term will be about half-over. Many violators’ appeals likely will not be exhausted before the next MAGA president pardons them. Little will have been accomplished. By contrast, the lives ruined or ended during MAGA administrations will not somehow be restored when that president leaves office.

Even if one is certain that Democrats can dominate national politics if (fill in the blank) “progressives stop taking extreme positions” or “the Establishment fights more vigorously”, it is obvious that neither group is going to change its stripes anytime soon. Until we are collectively willing to choose a moderate but stable regime that negotiates progress among pro-democratic factions, and until we develop a viable process for resolving Tragedy of the Commons conflicts when Democrats are in power, the current boom-and-bust cycle will continue. And while it does, all plans should focus on protecting political minorities and limiting the power of transitory majorities – even though Democrats will sometimes be in that majority.

@DavidASuper.bsky.social @DavidASuper1

What Roberts didn't say in the birthright citizenship case

2026-07-07T07:31:02.993-04:00

Chief Justice John Roberts' legal reasoning in the birthright citizenship case is careful and narrow. But it misses the bigger point: The 14th Amendment was written to prevent a permanent underclass in America.

I explain in a new column at USA Today, here.

Freedom of Expression After Trump v. Slaughter

2026-07-06T09:00:00.000-04:00

Daniel Browning

The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi, the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar, the Court held that a Colorado law banning “conversion therapy” did not survive strict scrutiny, at least as applied to “talk therapy.” And in National Republican Senatorial Committee v. Federal Election Commission, the Court struck down restrictions on a political party’s ability to spend on campaign activities in coordination with candidates for office. While these cases are significant in their own right, the most important free speech case of the Court’s 2025 term may not be a First Amendment case at all.

In Trump v. Slaughter, the Supreme Court dealt a final blow to Humphrey’s Executor, a long-standing precedent that insulated some agencies from presidential control by affirming Congress’s power to place removal protections on certain non-inferior officers. In so doing, the Court explicitly endorsed a strong version of the Unitary Executive Theory, under which the President must be permitted to fire at will most—but not necessarily all—non-inferior officers wielding executive power. The constitutional theory underlying the Unitary Executive Theory is grounded in a structural reading of the Vesting Clause and Take Care Clause of Article II. And its underlying political theory is animated by the thought that the power to fire non-inferior executive branch officers at will ensures officers are accountable to the President, who is, in turn, accountable to the people.

Slaughter’s most immediate and direct impact will be an expansion of presidential control over the administrative state. But underappreciated in the public discourse thus far is Slaughter’s likely downstream implications for freedom of expression. Today, as more and more discourse occurs on intermediated platforms, the government often aims to censor disfavored speech by “jawboning,” namely, by pressuring an intermediary who hosts or supports the speech to silence the speaker itself. When the government jawbones, it typically does so by promising to reward the intermediary with regulatory carrots, as in N.R.A. v. Vullo, or by threatening it with regulatory sticks.

The strong Unitary Executive Theory endorsed in Slaughter is likely to supercharge government jawboning of disfavored expression. Every instance of discretionary regulation creates an opportunity for regulators to reward political allies and punish political enemies. At-will removal creates a massive incentive for officers to marshal their regulatory discretion in a way that promotes the President’s agenda, that is, in a way that rewards the President’s allies and punishes her enemies. Where job tenure depends on fealty to the President, the officer, quite literally, puts her job on the line any time she regulates in a manner the president disfavors. Where speech increasingly is intermediated by massive conglomerates who are subject to discretionary government regulation on numerous fronts, we have a very big problem indeed.

After Slaughter, then, we should expect to see more regulators using their offices to target expression the President disfavors. But this is not the only problem. When it becomes a matter of common knowledge that regulators will use their discretion to further the President’s agenda, sophisticated firms will become more wary of hosting any expression the President opposes, lest they draw regulators’ ire. This sort of “voluntary” self-censorship is problematic not only because it restricts freedom of expression but also because it is practically impossible to challenge in court.

That is why it’s so baffling that Justice Gorsuch suggested in his Slaughter concurrence that a unitary executive would help limit government jawboning. After lamenting the broad powers Congress had granted to agencies, Gorsuch cited FCC Chair Brendan Carr’s recent jawboning of Jimmy Kimmel as an example of an agency making use of this unfettered power.

In light of the huge jawboning incentive created by a unitary executive, it’s difficult to even make sense of Justice Gorsuch’s suggestion. As I see it, the most plausible version of the Gorsuchian story is that government officials will jawbone less because they will be accountable to the President for their jawboning, who is in turn accountable to the people. Unfortunately, this story breaks down at both levels of accountability. The President is the one who most stands to benefit by officials jawboning the President’s opponents, so it’s unlikely that mere accountability to the President will do anything to tame jawboning by agency officials.

More plausible perhaps is the idea that the people themselves penalize the President at the ballot box for any government jawboning. While it’s true that public pressure on corporations and government officials can be an important source of countervailing power to resist government jawboning, the ballot box is a poor mechanism for holding the President accountable for jawboning. Even if we grant that people care enough about freedom of speech to factor jawboning into their vote, a vote for President in a two-party system bundles so many different policy preferences together that it’s highly unlikely jawboning is an issue that could ever be electorally decisive. Moreover, because officials of both political parties will have incentives to jawbone after Slaughter, voters may not even have a choice between a pro-jawboning and anti-jawboning candidate.

Even if the ballot box could be a real check, absent a statute that ensures jawboning transparency, such as the recently-proposed JAWBONE Act, voters would lack the information requisite to hold the President accountable for jawboning in the first place. As Justice Sotomayor observed in Vullo, when “a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Free speech scholars and civil society organizations have long called for greater transparency surrounding government communications with intermediaries, but Slaughter makes jawboning transparency more important now than ever.

Daniel Browning is a PhD candidate in Politics at Princeton University and a recent graduate of Yale Law School. You can reach him at daniel.browning@yale.edu.

Celebrate this Fourth (or Fifth) of July by Putting Frederick Douglass in Your Syllabus

2026-07-04T09:00:00.000-04:00

Alec Ewald

The best way to celebrate this Fourth of July is to open your draft syllabus and put Frederick Douglass in it. Particularly if it’s a draft con law syllabus, but Douglass goes with anything. (I’m a political scientist, and wouldn’t presume to tell actual law professors what to do – but actually, I kind of would. I think this will be valuable in your classrooms too, and at least one purpose-built casebook features Douglass.)

Plan to read, with your students, two things: his 1852 speech “What to the Slave is The Fourth of July,” and his 1860 speech “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?” I did these first as optional, dropped in alongside required readings. But over a couple years, the discussions were too good, and too many students said later in course evals that these were among the most memorable and valuable things they’d read. So now it’s a day.

You should try it. Let me make the case, and since it’s summer, I’ll do it in the most reader-friendly setup – a simple list – and start with the practical bottom line.

1. Every academic has tried to change the syllabus after reading some terrific new book, but found that ripping out weeks of cherished old material to make time was too hard. You can do this – read Douglass, read him meaningfully, enrich your curriculum – in a single class day. And you can do it at no cost, since students can read them on-line. Or, if you want, toss them into Word, and make them however long suits your purpose.

There’s a clean, nicely abridged fifteen-page version of the 1852 speech here. Full 1852 text is available here and here; you can see it in a pamphlet Douglass published a week later, here. The 1860 speech is briefly excerpted here, and you can find it unabridged here.

I do strongly recommend reading both. The 1860 speech is more extensively about constitutional interpretation, but the 1852 speech is a must.

2. For pedagogical purposes, this is the most important thing: Douglass makes startling, provocative reading. Partly because of how vividly he writes (one can only imagine the delivery), partly because of who he was, and partly because of what he writes: a lot of Douglass’ arguments don’t readily make sense together in many modern minds.

And so these two essays invite and demand interpretation. They generate the best kind of confusion, the cognitive dissonance kind, the kind that’s treatable by reflection, disagreement, and discussion.

3. Hearing Douglass make this argument, in the ways he makes it, runs a uniquely valuable constitutional-interpretation workout.

Spoiler alert, for those who might not be familiar. Leading up to the 1852 speech, Douglass changed his mind about the Constitution. In these speeches, he argues that the “American Government” and the “American Constitution” are not the same thing, and that the Constitution properly understood opposes slavery. And he does so with a forceful, unapologetic blend of what we call textualist, historicist, and aspirational claims.

This yields a few big benefits. Because Douglass is so clear, even beginning students can readily see each approach at work. “[T]ake the constitution according to its plain reading;” “the law must be construed strictly in favor of justice and liberty;” “backed up by a right moral sentiment;” “if the Constitution were intended to be, by its framers and adopters;” “the intentions of the framers of the Constitution were good, not bad.” (Dismissive glances at doctrine, in 1860: the Constitution’s meaning does not rest on “whether a pro-slavery interpretation has been put upon the Constitution by the American Courts.”)

Second (and paradoxically), it’s productively confusing to hear Douglass mix methods. Many textbooks start with explanations of major interpretive approaches, then turn to substance. Students assume, reasonably enough, that these approaches are separate, very different, even incompatible – and that they have existed that way since ratification. (Even in the most historical-institutionalist constitutional-politics textbook, the opening explanation of interpretive methods is a-historical.) And of course, students know the Constitution contains clear references to slavery, and that it built a political system that protected slavery.

But here comes Douglass! Praising the founders and wrenching passages out of their clear historical context and quoting Jefferson against slavery and denouncing the courts and the entire political system and quoting the Bible and doing it all in the service of the argument that the Constitution, “interpreted as it ought to be interpreted,” is “a “Glorious Liberty Document.”

4. These are deeply religious texts. Douglass spoke “in the name of the constitution and the Bible, which are disregarded and trampled upon,” as he said in 1852. These speeches praise the Constitution, read the Constitution, claim the Constitution in the fight against slavery – and they are also unambiguously spiritual, in language, energy and principle. This is particularly true of “What to the Slave,” with its dozen references to scripture, a long recitation from Psalm 137, and its conclusion starting with “God speed the year of jubilee.” This is constitutional interpretation, within a sermon. “[T]he Constitution is for ages,” he said in 1860, and we “owe it to ourselves, and to mankind, and to God, to maintain the truth of our own language, and to allow no villainy, not even the villainy of holding men as slaves.”

Blasting “the Churches and the ministers” and praising the Bible, Douglass was a “protestant” and a textualist, with regard to both of his sacred documents. That is certainly one excellent way to read him. But don’t spare the discomfort, particularly for your more secular students. Douglass didn’t care for the church or the state, but he also doesn’t separate his religion from his constitutionalism.

5. Who he is, of course. Douglass was a major political figure. For decades he influenced politicians, they influenced him, the newspapers were full of him. People bought his memoirs (plural!). Lincoln asked for his help. People cared what he thought about the Constitution. Reading him puts a black voice in your curriculum, and there is nothing remotely token about it.

Your students might not know the term “standpoint epistemology,” but to a greater or lesser degree, these days most of them believe in it: people with certain identities have greater standing to speak on issues related to those identities. “Lived experience” must have its due.

So, here is a Black man, escaped from slavery, arguing that the Constitution did not endorse or protect slavery. Many readers, then and now, find themselves not only tossed into cognitive dissonance but compelled to disagree. (Maybe particularly with some textual claims: with the zeal of a convert, Douglass reaches for several… creative readings.) That disagreement can yield its own discomfort, its own ethical, epistemological question: who am I!

6. Speaking of discomfort, Douglass is ideally suited to our polarized time. In an age when it’s not paranoid for college instructors to worry about getting in serious trouble for assigning strong arguments about race and racism, Douglass is an author cited by Justice Clarence Thomas and by Justices Ketanji Brown Jackson and Sonia Sotomayor.

Douglass combines religious fervor with sincere, repeated praise for the Founders (blaming those “honest men” for slavery is “a slander upon their memory”), all set in what is still, line for line, among the most withering denunciations ever written of American racism. It’s like Hamilton, only with both halves of the paradox spelled right out.

7. Douglass changed his mind, and he changed his mind on the thing that mattered most to him personally and politically, in a time of vicious polarization.

Douglass is a hero for a lot of reasons, and this is one of them. He’s explicitly reflective about it, in these and other speeches (“I am not infallible… I never pretended to be,” in 1860). And he did it with grace: despite the fact that he was now totally rejecting William Lloyd Garrison’s politics, Douglass tried to give his old mentor pride of place, closing the 1852 speech with a long Garrison quotation, and “let every heart join in saying it.”

Your students might wonder if Douglass made his move strategically, figuring that praising the Constitution would be more politically palatable to white folks than condemning it. Maybe, for some, eventually. But when Douglass decided Gerrit Smith was right about the Constitution and Garrison was wrong, he spoke at great risk and real cost.

8. Self-serving bonus: Douglass changed his mind partly because he read things written by academics. True, technically the abolitionists Lysander Spooner and William Goodell had other day jobs (lawyer, journalist). But the publications in which they developed their novel theories of the Constitution and slavery were side projects. Call them “independent scholars,” then.

9. Speaking of Smith, Spooner and Goodell, you don’t need to be an expert to bring Douglass in. A good judicious couple hours reading on-line – including maybe perusing this article – or just reading relevant slices from David Blight’s 1991 book or 2018 book on Douglass (I’ve got excerpts scanned in and I’m happy to share) – will equip you to facilitate a discussion. Because, see above: your students will have things to say.

And you’ll enjoy the work. For example, the reason I said “or Fifth,” way up top, is that Douglass gave the 1852 speech on July 5^th, not July 4^th, very likely because he chose to. Apparently it was common among free black communities at the time to celebrate on the fifth, as a clear but subtle dig at the slave nation’s problems and the hypocrisy of the Declaration.

Anyway, don’t take it from me. Go do some reading. And of course the last word, a semiquincentennial exhortation, is from the man: “Act, act in the living present, Heart within, and God overhead.”

Alec Ewald is professor of Political Science at the University of Vermont. You can reach him at Alec.Ewald@uvm.edu.

Wasserman is right

2026-06-29T09:40:30.791-04:00

Howard Wasserman observes, on Prawfsblawg, that my recent National Affairs essay, “The First-person Appeal of Free Speech,” neglects to call out contemporary impulses toward censorship emanating from the right. My piece begins by describing an episode where University of Illinois at Chicago Prof. Jason Kilborn was punished for merely referring to racist episodes on the left, and mentions some other demands for speech restrictions from the left.

Wasserman writes: “Based on these examples, one would conclude that the sole (or at least paradigmatic) threat to free speech remains the lefty sophomore at Bard complaining about racism. Not universities firing faculty (at the behest of complaining students) who say bad things about Charlie Kirk posthumously. Not universities firing faculty and shutting down departments (whether at the behest of students or under threat from state and federal government) over teaching about race, gender, and the existence of trans people. Not universities suspending students (upon the federal government threat of losing funds) for engaging in political protest that objectors decry as antisemitic or who protests speeches by government officials pursuing bad policy. Not the federal government seeking to deport students for engaging in political protest that objectors decry as antisemitic or anti-American.”

He’s right about the political skew. It wasn’t intended. The National Affairs essay is an abridged version of “Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person,” forthcoming soon in the Journal of Free Speech Law. I cut too much, without noticing the misleading impression this would create. Here are some paragraphs that were deleted in the abridgement (footnotes omitted):

This pathology spans the political spectrum. Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools – and, in ten of them, in state universities - of “divisive concepts,” among them that anyone “should feel discomfort, guilt, anguish, or any other form of psychological distress” on account of his or her race or sex. There happen to be uncomfortable facts that implicate these identities – notably, that white people enslaved black people for centuries. The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear. Teachers fearing for their jobs have been “avoiding lessons that discuss people who are not heterosexual, white, Christian, or American.” Books dealing with race, gender, or sexual orientation have been purged from school libraries. Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.

In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics. These statutes typically forbid them to “teach, instruct, or train” anyone “to adopt or believe any divisive concepts,” and declare that this does not forbid impartial teaching. But these formulations don’t work. One faculty member explained:

I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?

The normal imperatives of teaching now compete with a mandate that there are some ideas that students – even college students - are too frail to be exposed to.

Some of this should have been in the National Affairs version. Stay tuned for the full article.

The First-person Appeal of Free Speech

2026-06-25T10:25:06.472-04:00

I have a new piece in National Affairs, in which I explain (drawing on Milton, Mill, and Aristotle) why exposure to worthless and harmful speech can make you a better person.

Power of the Purse V: How Transformations at the National Level Threaten Federalism

2026-06-21T14:01:39.871-04:00

In four recent posts, I explained how President Trump is seizing large parts of the Power of the Purse from Congress and how this has led to restructuring within Congress, the Executive Branch, and the courts. In general, those in each branch adept at bipartisan problem-solving have been sidelined in favor of those that are either hyperpartisan themselves or at least unwilling to moderate the President’s hyperpartisanship. In this final post in this series, I examine how the new, presidentially driven federal Power of the Purse is seriously undermining federalism.

I have the utmost respect for the work of Heather Gerken, Jessica Bulman-Pozen, and others describing how states led by the party out of power in the national government may leverage federalism to provide an effective opposition. We certainly have seen plenty of that since President Trump has resumed office. My focus here, however, is the reverse. Rather than considering how oppositional states may force moderation in federal policy, I consider how the President, having seized a sweeping Power of the Purse, may force states to moderate their opposition to his policies.

Presidential abuses of the Power of the Purse have been little litigated for the simple reason that the Power of the Purse has resided with Congress. When federal agencies have reduced states’ funding, it generally has been pursuant to specific statutory directives. Courts have afforded federal agencies Chevron deference in interpreting those statutes but have not suggested broader federalism concerns are in play.

The Supreme Court’s innovations in federalism jurisprudence over the past few decades largely have focused on Congress’s intrusions on states’ prerogatives: selecting public officials, participating in spending programs offered by the federal government, allocating staff time, and general policymaking. Cases restraining federal courts’ intrusions on state courts’ jurisdiction are somewhat older.

The President’s seizure of the Power of the Purse has opened up a new and far more dangerous threat to states’ sovereignty. The Court’s concern about fiscal coercion of the states – either from conditions tangential to the nature of the federal funding put at issue or from the enormity of the federal funding at stake – has involved legislation enacted by a Congress in which every state is represented. Perhaps federalism needed an additional boost from the Court, but the affected states were not entirely defenseless.

The Trump Administration’s actions threatening or cutting off funds flowing to Democratic states operates independently of any congressional action. The states that it has targeted most – California, Colorado, Illinois, Minnesota, and New York – contributed no electoral votes to President Trump in any of his campaigns. None is likely to be decisive in the 2028 presidential election. He has little political reason to refrain from abusing those states.

By contrast, all five have Republican representatives who might well resist voting for legislation targeting their home states. If any one of the five states’ Republican delegations defected, hypothetical funding cut-off legislation could not pass the House. None of the five target states has a Republican senator, but the frequent need for supermajorities in the Senate makes senators leery of incurring the personal enmity of senators feeling that their state is being singled out.

The Administration has made little effort to conceal its punitive partisan motives. It issues angry press statements about errors, but as a district court noted Thursday “[a] generous reading of the record provided to this Court falls far short of the type of proof which might substantiate the government’s sweeping claims of fraud.” Its vitriolic denunciations of Minnesota appear to depend entirely on an abuse of pandemic feeding programs that occurred under the first Trump Administration and that was caught and prosecuted under the Biden Administration. (President Trump deserves no blame for the scandal nor does President Biden deserve credit for the arrests and prosecutions – attributing the routine actions of career civil servants to presidents is deeply deceptive – but the Administration insists on playing that game, which does not reflect well on it.)

Data in the two largest programs affected confirms that the Administration’s actions are entirely partisan. The Department of Health and Human Services measures Medicaid improper payments in about one-third of the states each year. Two of the Administration’s target states were in the set released this winter: Illinois had an overall improper payment rate of 1.2% while Minnesota had an overall rate of 2.2%. By contrast, Idaho’s improper payment rate was 6.1%. Some blue states that have been less vociferous in opposing the Administration’s policies also had improper payment rates well above those of Illinois and Minnesota.

Data from the Supplemental Nutrition Assistance Program (SNAP) tells a similar story. The payment error rates the Administration released last summer showed two of the target states meaningfully above the national average, one of them almost right around the national average, and two others meaningfully below the average. By far the highest error rate was Alaska’s, which was more than double that of four of the five target states. Red Florida and Georgia both also had higher error rates than any of the target states and yet have escaped the abuse the Administration has heaped on its perceived enemies.

This is not normal. During the late 1990s, Texas’s Food Stamp Program had egregious problems: a high error rate, precipitous declines in participation among eligible working poor families, and some pretty clear violations of federal law. The Clinton Administration was well aware of these problems but refused to do anything lest its actions be seen as an attempt to embarrass Governor George W. Bush, whom it thought might run for president.

The flexibility and relative invisibility of the President equip him to coerce states far better than Congress can. The President’s effective ability to close programs and interrupt federal funding without congressional approval allows him to buy bits of states’ sovereignty retail. President Trump purported to pardon Colorado County Clerk Tina Peters from her convictions for tampering with voting machines despite having no such authority over state crimes. When Colorado declined to release her, the Trump Administration closed an important federal laboratory in Colorado as well as reportedly threatening other federal installations in Colorado and waging its campaign against the state’s funding in human services programs. Governor Polis relented and commuted Ms. Peters’s sentence. Whether or not President Trump was holding “a gun to the head” of Governor Polis, his weaponry proved sufficient for the task.

Whatever one thinks of Ms. Peters’s conviction – the fact that she was charged and convicted in a deeply conservative county suggests that her actions were far beyond the pale – this is a massive transfer of sovereign power. When the President can use federal tax dollars to buy the states’ sovereign pardon power, and to effectively legalize violations of states’ election laws, we are well down the road to subordinating states fully to the federal administration. You can continue to rattle on about your Buffalos or your Golden Gophers, much as Brits fixate on Arsenal or Manchester United and Egyptians obsess about Al Ahly or Zamalek, but the President will get his way on anything he really cares about.

Actions of the other two branches of the federal government have facilitated this growing fiscal dictatorship. Many of the spending cuts in last summer’s One Big Beautiful Bill Act came in the form of large shifts in the costs of Medicaid and SNAP to the states. (These cuts are difficult to reconcile with Republicans’ image as the party of states’ rights.) We are already seeing dramatic participation drops in SNAP and likely will see something similar in Medicaid when the most destructive provisions take effect after the midterm elections.

These cuts seriously weaken states’ finances, making them more vulnerable to the President’s fiscal threats. They also raise the question of whether the Administration will fully implement the cuts against states that accommodate the President by praising his initiatives, by turning over confidential information contrary to law, and by adjusting their election laws to his liking.

The Supreme Court, too, has hampered states’ abilities to defend themselves. In April 2025, it held that states lack the irreparable injury required to obtain prompt restoration of federal funds if they can afford to continue the programs in question. Three months later, it held grantees that cannot afford to pay the cost of a program cannot get funds promptly restored because the federal government likely would not be repaid if it ultimately won the case. So whether the funding stream is large or small, and whether the state is flush or hard-pressed, the President can withhold federal funds and potentially make the state wait years for the funds to which they are entitled under federal law.

With almost all states required to balance their budgets annually, this leaves them with little option. Ironically, if the President’s blundering with Iran causes a recession, his leverage over states will grow even more. This threat to states’ sovereignty is vastly greater than those addressed in the Court’s prior federalism jurisprudence. And a willful President can do far more harm to a state’s finances than a federal court hearing challenge to a state agency’s violation of federal law.

Deep Throat told Woodward and Bernstein to “follow the money.” That is also good advice for those fearing the loss of our democracy.

@DavidASuper.bksy.social @DavidASuper1

Why Does Trump Want the Save America Act? The Answer Should Worry Us.

2026-06-17T15:30:17.796-04:00

On Wednesday, President Trump threatened to block the extension of the surveillance program, Section 702 of the Foreign Intelligence Surveillance Act or FISA, which expired on Saturday, unless a measure to reauthorize also included his beloved elections bill, the SAVE America Act.

Trump has called passage of the SAVE America Act his chief legislative priority and has continually applied pressure on Senate Republicans to force the passage of the bill.

Why does the President care so much about the Act’s passage—especially since it is abundantly clear that he does not have sufficient Senate votes to overcome a filibuster?

Neoclassical economics asks us to reason from a presumption that actors are rational. Some observers find the President's recent behavior unintelligible on those terms, but I want to take seriously the possibility that there is a coherent reason behind his fixation, and to walk through the candidates. The rational hypothesis that survives scrutiny is the one that, most of all, we should not want to be true.

The most natural reading of the SAVE Act is that the President sincerely believes large numbers of noncitizens are voting in federal elections. But the best estimates put illegal noncitizen voting at a few dozen ballots out of more than a hundred fifty million cast. No rational persons fears federal noncitizen voting.

A second reading is that passage would deliver the 2026 midterms for Republicans, as the President has claimed it would. It will not. The Act’s onerous proof-of-citizenship requirements only apply to new registrants, including first-time voters and those who move across state lines. It thus cannot deliver a Republican wave in the 2026 midterms, because the voters who will decide those races are already on state rolls.

A third reading is the long game. As people move, marry, or turn eighteen, more must register or reregister to vote, and on these people the Act’s effects would compound. Jacob Slaughter and I estimated the electoral impacts of the SAVE Act, and found the longer term impacts to be at best mixed. In the long run, the Act might modestly favor Republicans. But the President has little incentive to spend present political capital for the possibility of marginal gains that will accrue long after he appears on any ballot. And reasonable observers question whether President Trump cares much about the success of the Republican party after he is no longer holding political office.

A fourth reading worth mentioning is distraction – that the Act is being elevated to draw attention from other liabilities, including the President's connection to Jeffrey Epstein. The hypothesis proves too much. It could be wheeled out to explain almost any of the President’s high-salience policy initiatives.

That leaves a fifth reading, and it is the most disquieting one. The Act has virtually no prospect of passing the Senate in its current form. If the President convinces the public that the Act is necessary, and Congress refuses to enact it, he can claim that the integrity of the next election is in doubt and that an executive remedy is justified.

By this interpretation, the President's campaign for the Act builds the predicate for unilateral action: the suspension or federally supervised disruption of the midterm elections, sufficient to secure continued Republican control of the House. This is not as speculative as we would hope. Federal troops and law enforcement agents have been deployed to Los Angeles, Washington, Portland, and Chicago under contested theories of executive authority. A draft executive order circulated among Trump allies would declare a national emergency to ban mail-in ballots and voting machines. And recently, the President issued a different executive order attempting to grant his Postal Service unprecedented federal control over who is eligible to vote by mail.

A rational plan of election interference is certainly a more elaborate explanation than what the available evidence requires. Behavior that looks engineered has often, in this Presidency, turned out to be simply erratic or impulsive.

But if it emerges that my bad-faith reading is even partly right, it points to a highly uncomfortable move Democrats might consider: passing the SAVE Act. Doing so (perhaps with a pledge to revisit the legislation in 2028) could, in a perverse way, be in the best interests of our democracy.

A Congress that passes the Act would deny the President the legislative failure he needs to justify his election intervention to the public. If asked to rule on such an intervention, the Supreme Court might also be more likely to strike down executive action that premised on insecure voting than executive action taken where Congress has been silent.

Such a strategy is fraught, and comes with the repellent cost of disenfranchising millions of Americans. But the case for it grows with the plausibility one assigns to possibility that President Trump will use the bill’s failure as a justification for doing something much worse.

Remembering Gordon Wood: Religion and the Republic

2026-06-10T09:30:00.000-04:00

Arvind Kurian Abraham

Gordon S. Wood, who tragically passed away, was arguably one of the greatest historians of the early American republic of his generation. His death leaves an enormous void, not merely in the academy, but in public life, at precisely the moment when Americans most need the kind of careful, nuanced, evidence-driven historical understanding that Wood devoted his life to providing. Nowhere is this loss felt more acutely than in the debate over religion and the founding of the American republic, a debate that continues to generate far more heat than light, and one that Wood illuminated with characteristic brilliance.

Two competing claims dominate public debate about religion and the American founding. The first holds that the United States was founded as a Christian republic, citing the religious practices of early federal governments as evidence. The second insists the founding was essentially secular, resting its case on the writings of Jefferson and Madison. Gordon Wood’s scholarship did not confirm comfortable narratives. It complicated them.

He noted that while some Founding Fathers such as Patrick Henry, Samuel Adams, John Jay, Roger Sherman, and Elias Boudinot were devout Christians, several leading figures were not. Shaped by Whig liberalism, the writings of John Locke, and the influential Cato's Letters by John Trenchard and Thomas Gordon, figures like Jefferson and Madison viewed religious enthusiasm as a kind of madness, the conceit, in Wood's own rendering, "of a warmed or overweening brain." Few were outright Deists in the strict sense, that is, believers in a clockmaker God indifferent to human affairs. Some were proto-Unitarians who denied miracles and the divinity of Christ, and who described the Christian church, in the words of South Carolina historian David Ramsay, as "the best temple of reason."

One of Wood's most penetrating insights was his recognition of how completely the religious landscape of America had shifted between the founding moment and the early republic, in ways that the Framers had neither anticipated nor designed. The old colonial churches were in decline, in their place rose newer, more dynamic denominations. The Baptists grew from 94 congregations in 1760 to 858 by 1790, becoming the single largest denomination in America. The Methodists, with no presence at all in 1760, had established over seven hundred congregations by 1790. Their uneducated itinerant preachers, willing to preach on town greens, racing fields, ferries, and in the churches of rival denominations. The expansions of religiosity in American society was part of the phenomenon known as the Second Great Awakening.

Jefferson, the Founding Father who had pushed furthest toward a secular conception of liberty, exemplified the gap between founding expectations and social reality. He had always maintained the outward forms of religious observance, attending church and serving on his local vestry, owing not to faith but to his deep aversion to personal controversy. Jefferson’s Notes on the State of Virginia and the preamble to the 1786 Virginia Bill for Religious Freedom made clear that a citizen's civil rights were no more dependent on religious views than on opinions about physics. Jefferson was a sharp critic of orthodox Christianity. In fact, he believed that Trinitarian Christianity would die out and be replaced by Unitarianism.

Wood pointed out that after being attacked in the 1800 presidential campaign as a "French infidel" and "atheist," Jefferson became more deliberately visible in his public religiosity, speaking favourably of religion in his first inaugural address and attending church services held in the chamber of the House of Representatives. The federal government even permitted the U.S. Marine Corps Band to play religious music for the services. This was not a sign that he had changed his beliefs. Rather, it was an acknowledgment of the social reality of popular religion, which he could not ignore as president. Wood's history poses a serious methodological challenge for “history-based” approaches to constitutional interpretation. If post-ratification practices were products of political expediency rather than reflections of constitutional principle, can those practices legitimately serve as evidence of the Constitution’s original meaning or the founding generation's settled understanding of its limits?

Wood also argued that Jefferson had fundamentally misread why he had won the Virginia Assessment fight. The bill would never have passed, without the overwhelming support of dissenting evangelical Presbyterians and Baptists who simply hated the Anglican establishment and did not care what Jefferson's preamble said. "It was not enlightened rationalism that drove these evangelicals," Wood wrote, "but their growing realization that it was better to neutralize the state in matters of religion than run the risk of one of their religious opponents gaining control of the government." Wood's analysis carries a pointed warning for scholars who treat the Virginia Assessment controversy and Jefferson and Madison's writings as the authoritative blueprint for understanding what the founding generation had in mind on questions of state and religion.

By 1811, even New York's Chief Justice James Kent, who privately called Christianity a barbaric superstition, felt compelled to rule that blasphemy against it was punishable under common law, so powerful had the popular evangelical climate become, according to Wood. The settlement that eventually emerged, voluntarist, competitive, passionately evangelical, and distinctly Protestant in character, was one that neither Jefferson nor Madison had designed and that few among the founding generation had fully anticipated. In an era when the history of religion and the founding is routinely employed for political ends, Gordon Wood's guiding voice is one that will be dearly missed.

Arvind Kurian Abraham is an SJD Candidate at Harvard Law School. You can reach him by e-mail at aabraham@sjd.law.harvard.edu.

Second Annual Aspiring Free Speech Scholars Workshop

2026-06-08T17:49:00.000-04:00

Eugene Volokh

Second Annual Aspiring Free Speech Scholars Workshop jointly sponsored by the Sandra Day O’Connor College of Law (ASU) and the Hoover Institution (Stanford University)

Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech-scholars (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

The Power of the Purse IV: Redistributing Power among the Courts

2026-06-06T21:00:48.051-04:00

As I previously described, the second Trump Administration has dramatically shifted the Power of the Purse from Congress to the President. Accompanying this change have been internal structural transformations of both Congress and the Executive Branch that have concentrated power in a few highly partisan hands and damaged or destroyed mechanisms that brought a broader range of views to bear. These transformations are both causes and consequences of the more visible transfer of power from Congress to the Executive. This post considers how the President’s seizure of greater fiscal powers has been accompanied and facilitated by a subtle but crucial power shift within the judiciary.

Here, a relatively efficient structure allowing timely resolution of disputes on their merits has given way to one that tends to keep the judiciary on the sidelines. Judicial restraint, of course, is a long-honored value in our system. Much of its rationale, however, has been that the “political branches” can take care of themselves. That is an awkward fit for disputes in which the President is depriving Congress of perhaps its most important means of protecting its prerogatives: the Power of the Purse.

For decades prior to this Administration, the federal courts had a fairly stable division of labor on spending matters. Questions of general law – the interpretation and constitutionality of spending statutes and regulations – were addressed by federal district courts. Where officials applied policies improperly denying individuals or organizations the benefits they were entitled to receive, the district courts struck down those policies, with the Supreme Court’s blessing. District courts could act quickly to respond to recipients’ urgent need and had sufficient powers to adapt remedial orders to whatever violations they found.

Disputes over payments allegedly due under the terms of individual federal contracts went to the Court of Federal Claims. These cases typically focused on the terms of the given contract and factual issues about whether the contractor had met those terms rather than broader questions of federal law. The Court of Federal Claims has far narrower remedial powers, but with the narrow disputes before it these were adequate. If the federal government refused to pay for goods that in fact met contractual specifications, a simple money judgment was all that was needed. The Court of Federal Claims was slow, which was a genuine problem, but at least it could eventually make financially strong contractors whole by awarding interest penalties under the Prompt Payment Act.

Now, the federal government is systematically refusing to make payments not because of good-faith disputes about contractual terms or vendors’ compliance but because the Administration is asserting an aggressive new theory about the Separation of Powers. Specifically, it is arguing that the President is free at any time to reformulate the interests of the United States notwithstanding contractual terms or duly enacted statutes.

Whatever one thinks of the merits of this theory, it is very much the kind of dispute that district courts commonly hear and worlds apart from those in the Court of Federal Claims. To the extent that the Administration’s theory is incorrect, overall or in particular cases, a court adjudicating its actions obviously may need to issue extensive remedial orders, which the Court of Federal Claims lacks the power to do. That is particularly true given this Administration’s penchant for disregarding court orders. Because spending programs often target people and small entities in great financial need, payments years late, even with interest, often cannot undo the damage of withheld funds: agencies that close often lose the capacity to resume their prior work.

Treating the Administration’s unilateral terminations or restructurings of federal spending programs as a payments problem fundamentally misconstrues what is at stake and Congress’s purposes in providing for that spending. Although litigation is often brought, and standing established, by the entities that had been direct recipients of funds, programs’ purposes rarely are just to spend money: Congress sought to assist a particular set of individuals it deemed in need or a designed set of entities to meet some social purpose. The harms from ignoring those human needs and social problems often will be irreparable.

Moreover, judges on the Court of Federal Claims lack life tenure and other guarantees of independence afforded judges on district courts and other Article III tribunals. President Trump has aggressively assaulted the independence of other bodies long recognized as independent. Should the Court of Federal Claims ever seriously impede his agenda, one might expect he would use his considerable statutory powers to direct sensitive cases to judges of his choosing. That would be much harder with life-tenured district judges.

The Supreme Court has acknowledged this reality only in part. It has allowed district courts to continue to hear challenges to unlawful policies but prevented those courts from ordering payment of improperly withheld funds. It also specifically warned district courts against granting interim relief against the government in those cases:

And while the loss of money is not typically considered irreparable harm, that changes if the funds “cannot be recouped” and are thus “irrevocably expended.” Philip Morris USA Inc. v. Scott, 561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers). The Government faces such harm here. The plaintiffs do not state that they will repay grant money if the Government ultimately prevails. Moreover, the plaintiffs’ contention that they lack the resources to continue their research projects without federal funding is inconsistent with the proposition that they have the resources to make the Government whole for money already spent.

Of course, if any entity challenging the Administration’s illegal withdrawals of funding did assert that it could pay back the funds if it lost its case, the Supreme Court has indicated that entity would itself lack the irreparable injury required to obtain an injunction.

This effectively grants the Administration a two-year runway to eliminate congressionally mandated programs no matter how absurd its rationale may be. Perhaps some money might eventually be disbursed, but by then the mechanism for achieving Congress’s purposes often will be damaged or gone altogether.

A similar picture seems to be coming into view with respect to one of the Administration’s other assaults on Congress’s Power of the Purse: the tariffs it unilaterally imposed and collected for the better part of a year. At this writing, it seems likely that many of those that paid this presidential levy will not receive refunds; those to whom the cost of the tariffs was passed along through price increases almost certainly will not.

This is far from inevitable. Having acknowledged that district courts can hear challenges to unlawful policies obstructing the release of funds Congress has directed to a particular problem, the Supreme Court could certainly allow district courts to grant relief sufficient to meet to the problem the Administration’s actions present. This would ensure that, as the Supreme Court proclaimed two years ago, “[i]f the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.” As it did in granting President Trump sweeping immunity from prosecution in the absence of any textual authority for doing so, the Court might “focus on the enduring consequences upon the balanced power structure of our Republic.” The Court demonstrated in 2024 that it observes an emergency exception to the usual rules of decision for grave threats to the separation of powers. Few such threats are potentially more far-reaching than depriving Congress of its Power of the Purse.

The Court certainly could draw guidance from Contract Law, which is capable of distinguishing between the vast majority of cases involving routine, one-off disputes and a few exceptional instances of systemic bad faith. Insurance companies contract with vast numbers of people, who assume they will pay in good faith if the insured suffers a covered casualty. Resisting payment of lawful claims can enhance an insurance company’s margin, but it also undermines the whole concept of insurance. Accordingly, courts have recognized that insurance companies denying claims in bad faith should not benefit from Contract’s usual rule disallowing punitive damages. The federal government, too, assumes financial obligations to vast numbers of people, who trust it to pay in good faith. If this Administration is effectively free to refuse to do so, the federal government’s ability to contract to meet the country’s needs will be damaged for decades to come.

It also should be noted that the other two types of presidential intrusions on the Power of the Purse – spending money without a valid appropriation and declining to collect taxes Congress has legislated – are unlikely to be vulnerable to judicial challenge because of the Court’s interpretation of the “cases and controversies” requirement of Article III. If the Administration is free to impose taxes and to withhold appropriated funds for a year or two no matter how unsustainable its legal theory might be, Congress’s Power of the Purse is well and truly gone as anything more than a ministerial function.

@DavidASuper.bsky.social @DavidASuper1

The Power of the Purse III: Shifts in Power within the Executive Branch

2026-06-05T15:15:31.172-04:00

As I explained last week, President Trump has been systematically wresting away from Congress large parts of the Power of the Purse – the power to say what revenues will and will not be collected and what funds will and will not be spent. His unlawful settlements of lawsuits with himself, paid with public funds, is but a small part of this. Yesterday I discussed how the President’s expanded fiscal powers have affected Congress’s internal organization in a way likely to permanently reduce its capacity for negotiation and compromise. Today I explore how the Power of the Purse’s shift between the branches of the federal government has been accompanied by important shift in power within the Executive Branch. In particular, power has been further concentrated within the White House complex at the expense of the departments and agencies and has been shifted from attorneys to political operatives. The effect of these changes, like that of moving fiscal power from Congress to the President, has been to reduce significantly the number of people and perspectives that influence these important decisions.

Front-line departments and agencies historically have been the Administration’s envoys to congressional authorizing and appropriations committees with jurisdiction over their activities. To be sure, the President appoints cabinet, subcabinet, and other top officials and may direct their actions. Nonetheless, these officials have had a compelling reason to play a moderating role within any administration: they are the officials most responsible for accommodating the views of Members of Congress of both parties to avoid political explosions. When the White House directs them to do something that will anger Congress, the agencies push back, with subcabinet officials reaching out to the major organs within the White House or cabinet members engaging the President or Chief of Staff. This was often a messy process, but it also tempered the natural partisanship of the Executive Branch with the bipartisan perspectives of Congress.

Beginning with the Reagan Administration, executive power has become increasingly concentrated in the White House. Then-Professor Elena Kagan celebrated this process in her famous article on Presidential Administration. It has rapidly accelerated under the second Trump Administration.

Some of the accelerating concentration of power is the simple result of personnel. Even compared with his first Administration, President Trump has filled many senior positions with lightweights having minimal qualifications and little independent stature. Former Fox News commentators outnumber former governors. By contrast, OMB Director Russell Vought is reprising his role in the first Trump Administration; he is highly competent and determined to achieve particular ends. Any cabinet secretary tempted to challenge his decisions likely would be badly outmatched. Nor are agencies fully free to strategize internally with representatives of the Department of Government Efficiency (DOGE) (political commissars?) embedded within management structures.

More broadly, President Trump’s seizure of much of Congress’s Power of the Purse has dramatically reduced Congress’s importance and hence the importance of agencies’ liaison roles. Russell Vought has made clear to agencies that money comes from OMB and that it is OMB, not Congress, that agencies must appease.

OMB has repurposed the obscure “apportionment” process to impose restrictions on funds that depart dramatically from the terms of congressional appropriations. Indeed, OMB has ordered agencies to disregard Congress’s decisions about how much should be spent on a particular activity and obey the President’s budget proposal that Congress rejected. Congress required apportionment decades ago to prevent rogue agencies from spending their appropriations at an unsustainable rate, not to empower OMB to override Congress’s policy decisions.

President Trump used the apportionment process during his first term to block release of aid for Ukraine while he was trying to pressure President Zelenskyy to investigate the Bidens. In addition to his first impeachment, this also led to bipartisan legislation requiring that all apportionments be made public. After openly defying this requirement for months (declaring the apportionment website down for repairs), OMB then began issuing apportionments prohibiting agencies from spending moneys Congress had appropriated until they obtained OMB approval for a “spending plan”. This effectively moved the substance of apportionments offline again. (Prior administrations had required spending plans only in rare instances of agencies that had proven persistently fiscally irresponsible – and then only to ensure compliance with appropriations acts.) Litigation eventually forced OMB to publish the final spending plans but leaves opaque what other OMB demands the agency had to accept to win approval. Other apportionments require that OMB receive advance notice, and implicitly an opportunity to forbid, expenditures over a low threshold.

The mechanisms evolve, but the essence is clear: meaningful policy control is centralized within OMB. As congressional appropriations become less important, agencies’ soft power relationships of mutual accommodation with Congress become unnecessary and increasingly cut off.

As Congress’s current views have become less important, so have the views of past Congresses encoded in statutes. Prior to this Administration, a consistent theme in fiscal policymaking was the need to avoid violating the Anti-Deficiency Act. This could be done by committing or spending money in excess of available appropriations, by spending appropriated funds for purposes beyond those Congress specified or contrary to statutory limits, by transferring funds without statutory authority, or by spending funds without or contrary to an apportionment. Violations of these requirements carry criminal penalties.

Political officials, even presidents, generally accepted that they had no right to ask their subordinates to take fiscal actions that government lawyers said contravened one or another statute and hence were crimes. Presidents Obama and Biden reached disastrous fiscal deals with congressional Republicans because their lawyers rejected numerous plausible legal theories about how they could not continue operating the federal government after it hit the debt limit. “The lawyers won’t allow it” became an effective all-purpose brush-off officials could use on Members of Congress, political allies, and others pressing for policy changes.

This Administration, seeking to “move fast and break things”, has largely removed agencies counsel from making key fiscal decisions. And because those lawyers’ input largely springs from interpreting the collective, and often bipartisan, wisdom of Congress expressed through statutes, this move has further narrowed the inputs into fiscal decision-making.

As President Trump repeatedly orders federal employees to spend money without valid appropriations, he has had little trouble securing the cooperation of numerous federal employees despite the Anti-Deficiency Act violations entailed. The Treasury Department’s General Counsel did resign rather than implement President Trump’s “weaponization” compensation plan with money from the Judgment Fund; perhaps he preferred not to commit a felony. Others presumably are counting on the Trump Justice Department to ignore blatant violations of the Anti-Deficiency Act, which seems likely, but also that President Trump will pardon them before leaving office to prevent the next administration from pardoning them. They also surely are recognizing that this Administration has largely gutted civil service protections: the price of adhering to the law is likely losing their jobs.

It is difficult to convey how much of what this Administration has done that violates one or another provision of appropriations or permanent law, and hence the Anti-Deficiency Act. Much of what DOGE has done, and certainly the demolition of the U.S. Agency for International Development, the Department of Education, the Consumer Financial Protection Board, and other agencies, would appear to violate section 739 of Division E of this year’s Consolidated Appropriations Act and its predecessors in prior appropriations acts:

None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

But with agencies’ counsel thoroughly marginalized, nobody seems to care.

Many liberals vastly underestimated the institutionally transformative accomplishments of Ronald Reagan, a president whose intellect they disrespected. Today, many do not appreciate the depth and likely persistence of President Trump’s restructuring of our public institutions.

Our next president may be one who seeks to rationalize and regularize the MAGA regime, as George H.W. Bush did for the Reagan Revolution. Alternatively, our next president may be one determined to reverse much of what President Trump has done. In either case, the institutions of the ancien règime simply are not there anymore. A simple restoration is impossible just as we can never bring back the Grand Army of the Republic or the New Deal. Those interested in rebalancing our major institutions should be thinking about how those institutions’ internal structures might be adjusted to support the desired alignment. This is a deceptively difficult challenge.

@DavidASuper.bsky.social @DavidASuper1

It's All Politics

2026-06-04T14:18:49.692-04:00

Well, they did it: On Tuesday evening, the Supreme Court found a way to make Callais worse. They actually found several: they made an absolute partisan joke of the “Purcell principle”; they flagrantly, ostentatiously violated their own prior opinion in the long Alabama litigation in which they issued Tuesday’s order; they rewarded Alabama’s defiance of federal court orders; and they offered so very little in the way of reasoning as to make their action difficult to interpret as anything but lawless partisanship. But most importantly—and here finally we come to my topic in this blog post—SCOTUS did it by making the key implausible claim at the heart of Louisiana v. Callais, about racially polarized voting, just slightly sharper and more indefensible than it already was.

The official view of the Roberts Court is now as follows. If every single Black person votes one way, and every single white person votes the opposite way, in every single election, forever, that is not even relevant to the question of whether voting is “racially polarized,” so long as this enduring disagreement crystallizes into political parties, meaning that the two groups populate two different parties.

And that is exactly what strong and enduring political disagreements tend to do. I mean, where do you think political parties come from? Sometimes a political disagreement is so deep, so durable, so all-encompassing, that it becomes the politics-structuring disagreement around which all other questions orbit. Then the political parties are going to try to organize themselves around that disagreement because that is what political parties are for.

The polarization between Black voters and white voters in Alabama is so extreme and so durable, from the Civil War all the way through the present, that it has outlasted a complete flip in the party labels. Like strong magnets that flip all the way around instead of getting smushed together the wrong way, racial polarization in Alabama is so powerful that after Black Republicans became Democrats, white Democrats eventually had to become Republicans. Functional political parties reflect the most important political disagreements or cleavages in their polity. That’s their job. In Alabama, the most important political cleavage in the state is clearly racial polarization. Alabama is the second most racially polarized state in the nation.*

* * *

The Supreme Court has a different defniton of racial polarization—one that seems to suggest Alabama may not be racially polarized at all. In Callais, a month ago, Justice Alito said Voting Rights Act (VRA) plaintiffs must show “racial bloc voting that cannot be explained by partisan affiliation.” Last night’s order in Allen v. Milligan sharpened the point: “The mere fact that voters of different races vote for different parties is not relevant to proving racially polarized voting patterns.” (emphasis added).

Not even relevant? That’s bold.

Suppose there’s an election where the two candidates on the ballot are A and B. How else are voters going to act racially polarized, other than one race of voters going overwhelmingly for A while the other race goes overwhelmingly for B? But, Justice Alito says, if A and B are of different political parties, then it’s not racial polarization.

Why? Well, first, he points out, it is also partisan polarization. (Ok, we’re all with him so far.) Second, he asserts an odd fiction, that racial and partisan polarization are completely distinct phenomena, as though parties have nothing to do with race—and that therefore, we can define racially polarized voting by a process of subtraction. Whenever you have partisan polarization, we’re going to define that, ipse dixit, as not racial polarization. (That sound you hear is the entire political science profession getting off the train at that point, shaking their heads in disbelief.) And so it follows, on Alito’s view, that there may not be any racial polarization in Alabama at all: it’s all partisan polarization. It’s all politics.

Supreme Court justices can make up their own doctrine (and they certainly did here!); that’s part of their job. But their creative redefinition of racially polarized voting doesn’t change the political science any more than their law office history changes actual history. Racially polarized voting is a political science concept. It means what it sounds like. It means that people of one race tend to vote one way and people of another race tend to vote another way. The stronger that pattern, the more racially polarized the voting. That’s all. You can have racially polarized voting with no parties, one party, two parties, many parties, it doesn’t matter the number of parties. Parties reflect politically important divisions in society because that’s their job. The question of racially polarized voting is about the extent to which voters of different races disagree in how they vote—not whether that disagreement happens to be so exceptionally powerful that a party system gets built around it, as it has been in Alabama.

In concept, racially polarized voting is not very complicated. There are interesting and somewhat tricky issues of data and statistical inference involved in measuring it, since we use a secret ballot and you can’t generally directly observe the race of each voter. Political scientists have strategies for dealing with those data limitations and coming up with estimates of racially polarized voting. It turns out to be empirically highly varied from place to place in the United States. Political scientists’ estimates of racially polarized voting have found their way into generations of judicial opinions because judges find them useful. Why? The most important reason is that racially polarized voting helps judges decide when a racial group will need protection to avoid having its voting strength diluted in violation of American law.

There are always winners and losers in politics. No group, racial or otherwise, is guaranteed to be in the majority all the time. Sometimes you’re going to be stuck in the minority. In normal politics, you win some, you lose some. If voting is not racially polarized, plenty of people of all races will be among the winners and the losers and that’s fine.

However, Americans collectively decided that we would not allow a dominant racial majority (specifically, the Southern white elites of places like Alabama) to design voting rules and maps that meant Black people persistently and systematically lose, over and over, so that they have no representation in government, when their views are strongly at odds with the views of the white majority. Abstracting out from the paradigm case of Black people in states like Alabama, Americans decided to ensure through constitutional amendment and statutory enactment that no racial group is durably locked out of political power. To achieve this, we ratified the Fourteenth and Fifteenth Amendments. When the Supreme Court failed to enforce those Amendments, leading to most of a century of Jim Crow, we followed up with the Voting Rights Act. Both required considerable struggle and sacrifice. People died for the Voting Rights Act, and many of their relatives are still around to talk about it. The Reconstruction Amendments and later the VRA were needed because without them, the white power structure of the states in the former Confederacy such as Alabama was obviously going to come up with ways to lock Black people out of electing any of their preferred candidates to office. We know they would do this because they did it. And also because they are now trying to do it again.

In politics, sometimes you win, sometimes you lose. But if voting is racially polarized, such that white voters persistently vote “as a bloc” to stop the candidates Black voters prefer, the Fifteenth Amendment and the Voting Rights Act say you have to structure your elections in a different way, so that despite this polarization, there’s some sharing of power with Black people. The white majority gets most of the seats but not all. This is the basis on which federal courts ordered Alabama to draw a second congressional district where Black voters might elect a candidate they actually chose. Alabama blatantly defied that order, and now the Supreme Court has rewarded the state for that defiance.

Louisiana v. Callais was the final act in a bleak Roberts Court trilogy that eviscerated the Voting Rights Act. The trilogy began with Shelby County v. Holder in 2013 (nullifying Section 5 of the VRA). Just like the lesser-known middle episode in the trilogy, Brnovich v. DNC (2021), Callais was an Alito opinion that legislated an elaborate new statutory scheme for proving voting discrimination claims. But it’s an odd, crabbed kind of statutory scheme, one that no Congress would have legislated in real life. Instead of laying out in the statute what actually counts as discrimination, Alito’s rewritten legislative framework is entirely devoted to creating new defenses that shield jurisdictions from VRA liability—many of them written in vague enough terms to give creative judges plenty of tools for making sure VRA plaintiffs lose. One of those new defenses is the “it was party, so it was not race” defense that is the subject of this post. Section 2 of the VRA once covered discrimination in both voting procedures (“vote denial”) and districting (“vote dilution”). Alito rewrote the VRA’s legal requirements for the former in Brnovich and the latter in Callais—all with the blessing, the opinion assignment, and the vote of Chief Justice John Roberts (whose opposition to the VRA was known at the time of his confirmation hearings, if Congress had listened to John Lewis). This trilogy of cases is one of the most important elements of the historic, ignominious legacy of the Roberts Court.

And yet that somehow understates it. The Supreme Court is going further than merely (merely!) eviscerating the Voting Rights Act. It is also taking a pickax to underlying constitutional protections in voting, as yesterday’s order in Allen v. Milligan makes especially clear. Instead of engaging in statutory interpretation, the Court in Callais and Milligan is lunging straight for the conceptual underpinnings of the law of vote dilution, and in particular, racially polarized voting. This is not statutory interpretation or constitutional interpretation, but a radical conceptual redefinition of an important element in the underlying architecture of how we think about what vote dilution is. That’s going to have a large blast radius.

* * *

So how could one test the Supreme Court’s seriousness regarding its redefinition of racially polarized voting, where we define it by subtraction, excluding any partisan polarization? A really astute law student or lawyer might wonder: ok, SCOTUS, suppose we go down to Alabama and find a nonpartisan election for some office. What if there’s racially polarized voting in that election?

(There will be. As noted above, voting in Alabama is extremely racially polarized. That’s going to hold true whether you offer voters zero, one, two, or many parties.)

If you take Justice Alito at his word, you might think he would react to racially polarized voting in a nonpartisan election with an “oh my, it turns out I was wrong, voting is racially polarized after all!” Perhaps he might then take a fresh look at the extensive record that led the federal district court in Alabama to conclude that the state had intentionally and unconstitutionally diluted Black voters’ voting power.) Reader, please know, this is not how it’s going to go. Even with no party labels, Justice Alito will say, how can you tell whether it’s partisan polarization or racial polarization? There aren’t any racial labels on the ballots either, but sometimes people know. At the end of the day, Alito and other Republican justices simply hold to a strong intuition that party matters more than race. This makes sense; after all, they believe party matters more than race to them. It just stands to reason, they will feel intuitively, that any apparent case of racial polarization is actually a case of covert partisan polarization.

In any event, you actually aren’t going to find a whole lot of nonpartisan elections in Alabama to test SCOTUS with. That's because Alabama is one of a handful of states with partisan elections all the way down to the school board level. And why is that?

It’s because of race.

If I may be permitted to get on a soapbox for a moment, the point here, loudly for those in the back, is that a state’s political system is not some kind of a natural phenomenon like its weather or its soil, but rather, a product of politics in that state (and of course, spilling over from other states as well). Alabama’s political system was built—as in other states of the former Confederacy, with various different variations—a bit more than a century ago, by white elites, to disenfranchise Black voters. At the time the Black voters were Republicans and the white voters were Democrats. Later they switched party labels. Either way, using party labels helps keep everyone on side. Reinforcing racial lines with partisan lines helps make sure Black people lose a little more consistently than they would absent the party labels, where they might have more of a shot at alliance-making across racial lines. Using party labels down to the school board level is one small tactic that serves that goal.

* * *

In the view of the Republican justices of SCOTUS, whenever race and party run together, any observed polarization is party, not race. This is a very convenient conclusion. It means that any time you wish to destroy the political power of a racial minority, all you have to do is define them as a different party.

When I was a law student 20 years ago, Pam Karlan taught me this point with an example I will never forget. Suppose you have two parties, she said. The Problack party and the Antiblack party. Suppose their platforms reflect their names.

Are we going to see racially polarized voting? Partisan polarization? Yes and yes. And it’s going to be impossible to separate the two. Indeed, I would add that if these are the parties, you can work backwards and see that race must really be the central axis of politics. In that way, Karlan might as well have been talking about Alabama.

The Supreme Court has now more or less grabbed hold of this example and turned it upside down. According to Justice Alito and the other Republican justices, there is not actually any racial polarization in that example. It’s all partisan polarization. If a state just happened to elect all its members of Congress from the Antiblack party, and Black voters were aggrieved about being locked out, they are now obligated propose an alternative less-discriminatory map that “performs equally well” in electing members of the Antiblack party.

That is actually where we are now.

The deeper the racial polarization, the more difficult it is to disentangle from partisan polarization, because the more closely the parties will align with the racial divide. That is why—ironically, tragically, inevitably, intentionally—the greatest effect of Callais/Milligan is going to be in the former Confederacy, more or less the set of jurisdictions once covered by Section 5 of the VRA.

Why? Because those are still, today, more or less the places where voting is the most racially polarized. In their 2024 APSR article, The Geography of Racially Polarized Voting, Kuriwaki, Ansolabehere, Dagonel, & Yamauchi have a helpful map, which shows considerable overlap with the old Section 5 coverage map:

Justice Alito and the Roberts Court can make up any doctrines they like to deny the reality of racially polarized voting. But at the end of the day, Americans are going to observe the same thing we observed after the end of Reconstruction: that in many of the states where, even today, most Black Americans live—that is, in many of the states of the former Confederacy—there will no longer be any members of Congress that any appreciable number of Black people actually voted for.

The Republican majority on the Supreme Court is responsible for this. It is important for all of us to let Americans know that. It will be one of the foundations for an important argument to come, about the necessity of using political power in the elected branches to do two essential things: change the way we draw congressional districts across the United States, and reform the Supreme Court.

Cross-posted on the Election Law Blog. This post began as a thread on Bluesky.

*As in so many things, Alabama is saved from being the most extreme state in the nation only by the fact that there’s always Mississippi.

The Power of the Purse II: Shifts in Power within Congress

2026-06-04T12:09:28.840-04:00

Over the decades, the major institutions of our federal government have adapted to their assigned roles. When those roles undergo a dramatic change, as they are in the second Trump Administration, their internal structures must adapt. The changes may seem subtle, but new institutional habits can prove far more durable than most specific policy choices. And in each case, these internal changes are moving us toward a more belligerent and less functional government.

My previous post showed how President Trump has wrested increasing parts of the Power of the Purse from Congress. I promised a follow-up post considering how that transformation is rewiring each of the three branches of the federal government and federal-state interactions. These are complex issues, and in the interests of readability, I am dividing this discussion into four distinct posts, beginning today with Congress.

Congress is the biggest loser in the current realignment. President Trump’s approach here differs fundamentally from those of his predecessors. President Ronald Reagan never had formal control over the House of Representatives, but during his first two years in office he leveraged his immense personal popularity with voters to dominate the House and guard against any open defiance in the Republican-led Senate. He therefore did not so much seize Congress’s prerogatives as he bent Congress to his will while preserving its structure. He wisely looked the other way when Members of Congress quietly jettisoned his most radical proposals while remaining true to his broad vision. Republican Senator Bob Dole’s rebellion to save the Food Stamp Program is perhaps the most remarkable example of this.

Republicans controlled Congress for most of George W. Bush’s presidency, allowing him to achieve his policy goals within the existing structure as well. Like President Reagan, he set broad policy ends but generally respected Congress’s prerogative to craft the means. During his first term, President Trump followed this model only for his 2017 tax cut legislation – which also proved to be one of his few legislative accomplishments.

Presidents Bill Clinton and Joe Biden tried to micro-manage Congress during their first two years, failed on many of their most important fiscal priorities, and lost control of Congress for the remainder of their presidencies. President Barack Obama proved far more successful adhering to the Reagan-Bush model of broad goal-setting with deference to Congress on the details.

Republican control of Congress, and the relatively pliant Republican leaders of both chambers, likely would have allowed President Trump to achieve sweeping conservative policy successes through conventional means. And, to be sure, his One Big Beautiful Bill Act made radical changes to a degree that his predecessors of both parties could only dream about.

But President Trump has been less interested in persuading Congress to enact his program than he has in stripping Congress of its powers. This likely reflects in part his dislike for the cajoling and negotiating that prior presidents accepted as a part of the job. (Perhaps he ought to read The Art of the Deal?) At least as important, Russell Vought, his Director of the Office Management and Budget (OMB), brought a strong desire to expand executive power and allied with other exponents of executive unilateralism such as Elon Musk. In less than a year and a half, President Trump and Director Vought have already arrogated much of Congress’s traditional power and driven structural transformations within Congress.

The biggest internal change Congress has experienced is the marginalization of the Appropriations Committees. This change may sound technical, but it is profound. Historically, the division within Congress between authorizers (those sitting on substantive committees other than Appropriations) and appropriators has been arguably as sharp as that between the two parties or between the House and the Senate.

As a lobbyist, I worked comfortably with both Democrats and Republicans, establishing numerous trusting relationships on both sides of the aisle and in both chambers. But these relationships were all with authorizers, Members and staff from committees such as Ways and Means, Energy and Commerce, Finance, Agriculture, Education and Labor, and Health, Education, Labor and Pensions. I went to the Appropriations Committees because my work required it, but I never felt comfortable there. I never had any confidence that Members or staff of either party were being candid with me. They had their own retinue of repeat-player lobbyists. As was I most definitely not among them I was kept at arm’s length by Democrats as much as by Republicans.

Appropriators differ from their colleagues in several key ways. Because they alone have to produce at least twelve pieces of legislation every year, and because the filibuster effectively requires that legislation to be bipartisan, appropriators are Congress’s most instinctive and experienced negotiators. Extreme Members of each party serve on the Appropriations Committees, but they have to temper their ideologies to get anything done. In addition, because appropriators are commonly trying to bring projects back to their states, they are quite vulnerable to retaliation. They thus have strong incentives not to infuriate Members of the opposing party – an impulse that can infuriate Members of their own party. Thus, in an increasingly ugly political system, appropriators’ institutional roles compel them to preserve civility, cooperation, and a focus on making government work. Say what you will about “the Swamp”, but swamps are ecosystems. We can fantasize about how a lovely temperate forest might be, but until that appears appropriators keep the swamp functioning and carry away toxins that could lead the whole system to crash.

Appropriators’ jurisdiction has eroded somewhat over the years. Converting programs from discretionary to entitlement funding transfers most control from appropriators to authorizers. The Affordable Care Act included large amounts for program administration so that Republicans could not strangle the program in its infancy if they took control of Congress. Traditionally funding the federal government’s operations is a central function of appropriations.

President Trump, however, has shredded appropriators’ powers. In March 2025 he signed a full-year appropriations bill written by Republican appropriators and then promptly impounded large amounts for programs he disliked.

President Trump also rejected the appropriators’ designation of much of that spending as meeting emergencies, which had the effect of erasing that funding. This was perfectly legal but deeply humiliating for Republican appropriators as it abrogated a bipartisan deal going back several years.

A time-honored political script calls for a menacing outsider to threaten a beloved local program only to back down when the state’s valiant appropriator rides to the rescue. Rural Republican appropriators thought they were being given such an opportunity to prove their worth to hometown voters when President Trump proposed rescinding the appropriations that sustain their local public broadcasters. Under the illusion that they still mattered, the appropriators denounced the cuts, expecting that the President would play his designated role in the skit. Instead, the President stood firm and humiliated the appropriators by forcing them to vote for the cuts that they had just said would be ruinous for their states.

President Trump’s One Big Beautiful Bill Act, enacted through reconciliation procedures that eliminate the need for bipartisanship, included operating funds for federal immigration agencies and aid for state and local governments that cooperate with these agencies – all traditional appropriations functions. The new reconciliation bill pending in the Senate would further displace the Appropriations Committees’ jurisdiction, cutting them out of funding the operating costs of large, important federal agencies for years to come. Few obvious limits prevent this mechanism from gobbling up vast swaths of the Appropriations Committees’ jurisdictions.

Had any Members been foolish enough to attempt something like this under virtually any prior Appropriations Chair, appropriators on a bipartisan, bicameral basis would have devastated funding for activities in the offending Members’ districts. Were Administration officials implicated, they could expect a $1 appropriation for their salaries the next year.

Today, however, Republican appropriators have sat by meekly as the institution they have worked so hard to lead is humbled. Senate Appropriations Chair Susan Collins is facing a difficult re-election fight in which she dares not offend the President lest she dampen MAGA true believers’ enthusiasm. No doubt she is concerned. And Representative Tom Cole became a long-time member of House Republican leadership, and then House Appropriations Chair, by demonstrating loyalty to his party not by defending any committee’s prerogatives. Democratic appropriators remain more committed to the institution – to the occasional irritation of their party leadership – but one can readily imagine Democrats using budget reconciliation to lock in funding for numerous liberal priorities next time they control the White House and both chambers of Congress.

A country whose electorate is split almost precisely down the middle has a dire need for bipartisan negotiation and compromise. Negotiations are already extremely difficult with ignorant but loud voices in each party’s base screaming “betrayal” at even the most inevitable concessions. Gutting the Appropriations Committees’ roles will only make that worse. Reconciliation bills can establish programs with opulent funding when one party holds a federal trifecta (control of the House, the Senate, and the White House) only to be destroyed – before the programs have an opportunity to show their worth – as soon as the other party seizes control. And all the while, the anger mounts. Democratic governance will not be sustainable if this persists.

@DavidASuper1 @DavidASuper.bsky.social

Reflections on Skowronek’s “The Adaptability Paradox”

2026-06-01T17:23:17.301-04:00

I’m sorry I didn’t participate in the symposium on Stephen Skowronek’s challenging new book, “The Adaptability Paradox.” Skowronek probes in detail whether the Constitution’s commitments, especially to separation of powers and federalism, are maladapted to the democratized world created by the “rights revolution” of the 1960s. As he says, “At the center of the analysis is a trade-off between wide political inclusion and the structural integrity of the Constitution.” (TAP, vii-ix) This trade-off is expressed by the “adaptability paradox.” Because I lack Skowronek’s concise and mannered means of expression, I’ll try to state the paradox in my own words. The idea is that voiding the undemocratic parts of the Constitution in service of democratic principles yielded a new kind of inclusive regime which had no precedent in American history. Further, the ultimate consistency of this regime with the parts of the Constitution that remained after this makeover is, at the least, untested and at the most, extremely problematic. This problematic inconsistency has produced increasing dysfunction and, indeed, instances of outright derangement in how each branch of government operates.

After I read the book, I remarked to my fellow bloggers that I could hardly disagree with this diagnosis, at least in its outlines, because it resembles in broad outline the kind of argument I’ve been making off and on since my 1996 book American Constitutionalism: From Theory to Politics. I’ll note the similarities. In retrospect, in my 1996 book I was probably arguing two distinct theses at the same time. One was a “mismatch” theory – the idea that the activist state represented by the New Deal was in considerable tension with the unamended Constitution. The other was a “democratization” theory (although I did not use that term) – that our experience since the 1960s shows there is a problem operating the Constitution amid a democratic politics unknown to prior American history. The latter thesis is of course closer to Skowronek’s argument.

I treated these theses as showing the constitutional system in a continual crisis since the 1960s. The idea that you could have a crisis that, in effect, never ends has been questioned by some scholars and I probably should have found another way to describe what I was observing. But I viewed the lack of Article V amendment as imposing a hard limit on just how far the Constitution could adapt. In other words, adaptation through “informal” means has never struck me as a fully effective substitute for formal change. This is also what Skowronek seems to believe.

The particular spin I put on the democratization thesis was that the full implications of democratization were concealed by the political consensus behind the Cold War even through the 1960s. I put the theses together as follows: “In the 1960s the politicization of civil society increased rapidly, the legal restrictions on the electorate were for the most part abolished, and the United States experienced a full-fledged national democratic politics for the first time in its history. . . .The politicization of civil society and the democratization of the state had enormously expanded the scope of the national policy agenda. The range of interests the national state now had to take into account approximated much more closely the range of interests in society. But there had been no fundamental change in the ability of the national state (read: Constitution) to wield public authority and govern these contending interests.”

In my 2015 book Broken Trust I used studies by John Hibbing and Elizabeth Theiss-Morse to extend the argument that the democratization of American government led to constitutional problems. Specifically, democratization produced a roiling, contentious and conflictual politics that was deeply at odds with how Americans think politics and government should work. Accordingly, I argued, trust in government was permanently dented.

Compared to the accounts I offered in my prior work, Skowronek is far more acute and detailed on the impacts of democratization on Congress, the Supreme Court, and the presidency. As one might expect, his account of the disastrous consequences for our constitutional order of the unitary executive theory is particularly well done and should be required reading in the nation’s law schools.

While I admire Skowronek’s ability to illuminate the current dysfunction of our system of separation of powers, what he has to say, even as a descriptive-explanatory matter, about the relationship of federalism to the democratization of American politics is hard for many legal academics to hear. If I read him correctly, Skowronek is saying that by shoving federalism concerns to one side in measures like the Civil Rights Act of 1964 and Voting Rights Act of 1965, we as a polity bought ourselves endless constitutional trouble. And our current difficulties with separation of powers and the shunting aside of federalism concerns are related. That is, the steady opponents of these measures, particularly although not exclusively in the South, turned to strategies that would make the presidency and eventually the Supreme Court itself more receptive to their point of view. Indeed, the process that led to the recent decision in Louisiana v. Callais is arguably an example of what Skowronek is talking about. Journalists like to describe the VRA as originating solely in 1965, when it is in fact the product of three distinct periods – 1965, the change in the status of section 5 of the VRA after the Allen decision in 1969, and the 1982 amendments. Lawyers in the Reagan administration like John Roberts and Sam Alito as well as the legal conservatives generally were never reconciled to the last set of changes, with consequences we can all now perceive. Legal scholars will have their reservations, but they need to reckon with Skowronek’s many insights.

The Power of the Purse I: Inter-Branch Transformations

2026-05-28T17:15:44.730-04:00

Charles I of England did not call Parliament into session because he desired its company or because he valued its counsel. He called Parliament into session because he desperately needed money and because, under the Stuart Constitution, he had no other means of obtaining it. This requirement eventually led to the ultimate check on his royal powers.

How remarkable it would be if the contemporary U.S. Constitution gave the President more financial autonomy than an English constitution resting on a far more absolutist, and overtly royalist, ideology. This would be all the more remarkable in an era where Originalism is ascendant: very few of the Framers were royalists, and even fewer allowed royalism to slip into their public communications. President Trump has not yet reached the point where his powers clearly exceed those of Charles I, but the degree to which he has wrested the Power of the Purse away from Congress, and the scale of the changes within each branch of government in how fiscal prerogatives are exercised, are quite remarkable. As someone once said in a somewhat different context, if we wish to understand true power in Washington, we must follow the money. This post discusses how the President has wrested the Power of the Purse away from Congress. Tomorrow I will analyze how changes within each branch have facilitated these changes.

Logically, the Power of the Purse has four components: the power to say what revenues will be collected, the power to say what revenues will not be collected, the power to say what funds will be spent, and the power to say what funds will not be spent. President Trump has significantly expanded presidential power in all four areas.

His most conspicuous revenue expansion has been his unilateral tariffs. The Supreme Court struck down his sweeping “Liberation Day” tariffs on much of the world after they had been collected for ten months. After defiantly blasting the Court, including his own appointees, President Trump then imposed another sweeping set of tariffs under a different legal rationale. These, too, have been held unlawful in a lower court, but the President seems intent on imposing a new set of tariffs whenever he is prevented from imposing an old one.

Beyond this, the President has obtained ostensibly “voluntary” contributions from numerous entities outside of the federal government to fund his agenda. Companies seeking regulatory concessions from the Administration, for example, have contributed heavily to building the President’s desired grand ballroom. When state or local governments leverage regulatory approvals to obtain costly concessions from private businesses, the Supreme Court has called them “exactions” and struck them down as unconstitutional takings of private property without just compensation. These are revenues. And under the Miscellaneous Receipts Act, they must be – but apparently have not been – deposited in the Treasury and made subject to congressional appropriation. The Act specifically prohibits depositing such funds in a bank.

President Trump also used the taxpayer-funded U.S. armed forces to replace Venezuela’s president with one who allows him to take a large share of the country’s oil revenues and place them in an account controlled only by the President. Again, the Miscellaneous Receipts Act applies.

Charles I had little desire to forego revenues, but President Trump inherited a government with a much stronger fisc – and seems quite indifferent to the fiscal position he leaves to his successor. He therefore has sought to reduce taxes on his affluent allies. Congressional Republicans shared this agenda and enacted the One Big Beautiful Bill Act last summer. Although profoundly unwise, the Act raises no sweeping challenges to the constitutional order. But President Trump has gone farther by preventing the Internal Revenue Service from enforcing revenue laws still on the books. Part of has come through slashing IRS’s enforcement staff, leaving the agency hopelessly outmatched against wealthy individuals and corporations with complex tax situations. This operates not very differently from the repeal of many Code provisions designed to curb upper-income tax abuse. Although the Code prohibits the President and his entourage from influencing tax enforcement actions, news reports suggest that the Administration may be contemplating the grant of audit exemptions under the guise of settling litigation.

Quite apart from the public funds he has kept outside the Treasury, President Trump has repeatedly spent large sums from the Treasury contrary to law. No apparent principle limits his willingness to disregard limitations on appropriations.

His cases against the federal government, which a federal judge flagged as potentially collusive, provide another means of accessing large amounts of Treasury dollars without going through Congress. As I explained earlier, the “settlement agreement” negotiated between Trump-controlled plaintiffs’ lawyers and Trump-controlled defendants’ lawyers holds the distinction of disregarding parts of each of the first three articles of the Constitution (the Appropriations Clause, the Take Care Clause, and the Case and Controversy Requirement) as well as one of the amendments (section 4 of the Fourteenth). The Justice Department’s press release says Acting Attorney General Todd Blanche has chosen to provide $1.776 billion to this fund for paying the President’s political allies without their proving any of the facts that Congress has required for claims against the federal government. But nothing stops the President from directing Mr. Blanche to provide more funds without congressional appropriation or to expand the purposes for which they may be spent.

Although the decisions to go to war with Iran and to take military action against Venezuela, Cuba, and others are commonly discussed in terms of international relations, they are also huge fiscal decisions. By giving Congress exclusive authority to declare war, the Constitution ensures its comprehensive control over the nation’s finances. President Trump’s disregard of this power further arrogates the Power of the Purse. At some point, Congress will have little practical choice but to pay for the wars that were started without its authority. The cost likely would be sufficient to reverse the devastating cuts to Medicaid and food assistance in last summer’s One Big Beautiful Bill Act, to establish a national child care subsidy program, or to make meaningful progress in shifting our energy infrastructure away from carbon.

The final component of President Trump’s claiming Congress’s Power of the Purse, impounding funds appropriated by Congress. This may be best-known but least-understood of the Administration’s fiscal efforts. OMB Director Russell Vought returned to office asserting presidential powers unheard of since the Supreme Court unanimously rejected President Nixon’s impoundments. He followed that up by freezing funding for many domestic programs. This global freeze was enjoin, withdrawn, and replaced by numerous more targeted, if no more justified or lawful, freezes on particular programs.

The picture at this writing is complex and confused. A few programs did indeed suffer devastating unilateral, lawless impoundments, notably the U.S. Agency for International Development and the Minority Business Development Agency. Others suffered narrower but still significant impoundments. For still others, the Administration reported funds obligated but found a wide variety of gimmicks to keep the money from reaching its intended beneficiaries. Some programs have seen their funds have been diverted to the Administration’s priorities. For others, OMB has imposed practically unmeetable conditions that must be met before the funds are spent. For still others, OMB has delayed spending without clearly stating that it intends the delay to be permanent. And in a wide range of programs, the Administration has leveraged the threat of impoundments to coerce state and local governments and private grantees in ways not authorized by law.

Litigation’s results have been mixed. The Supreme Court has sharply curtailed the ability to bring effective litigation but has not completely shut down potential recipients’ ability to sue. The procedural obstacles it has placed in the way of litigants, and its resistance to allowing preliminary relief in funding cases, has left the Administration a relatively free hand for now. But the Court has not clearly repudiated its prior decisions limiting presidents’ ability to arrogate spending powers to themselves.

The Power of the Purse has by no means fully passed from Congress to the President. But the President’s actions suggest few obvious limits to his seizures of prerogatives the Constitution assigns to Congress. It is difficult to identify a significant fiscal policy that the Administration has desired that it has been prevented from implementing. So far, at least, Charles I would be most envious.

@DavidASuper.bsky.social @DavidASuper1

Protecting Student Speech

2026-05-28T09:30:00.000-04:00

Ronald C. Den Otter

My new book, Education in Democracy:The Importance of Free Speech in American Public Schools, is about the value of student speech and the dangers of censorship. Coupled with distrust of government, where school authorities cannot be trusted to police student speech competently or fairly, I make an autonomy-enhancing argument, contending that the exercise of free speech rights by students is constitutionally required in the name of respecting their autonomy, both as speakers (or writers) and listeners (or readers). I also explain why this practice over time is conducive to the development of the autonomous capacities that they will need as they approach adulthood and democratic citizenship. Ultimately, I defend the perhaps counterintuitive conclusion that constitutional protection for student speech is more imperative when students are young and impressionable. Not in spite of their age, but because of their age, there ought to be few limits regarding what they can say or write outside the classroom, when they are on campus or off campus using social media.

At present, with respect to student speech in public schools, U.S. Supreme Court decisions leave a lot to be desired if one cares about not allowing students to be coerced into silence out of fear that they will be punished for expressing what they happen to believe. For free speech purposes, the merits of their beliefs are beside the point. Moreover, since Tinker, which was decided in 1969, these decisions are not nearly as clear as they could be, leaving far too much discretion and inviting selective enforcement. As Justice Thomas wrote in his concurrence in Morse v. Frederick, “students have a right to speak in schools except when they do not.”[1] Under Tinker, school officials may only limit student speech if it is reasonable for school officials to conclude that the speech in question will substantially disrupt the educational environment, undermine school discipline, or violate the rights of other students. While this decision is a vast improvement over subsequent decisions, which curtailed the free speech rights of students, it still gives school officials too much power to limit student speech that may be valuable. That is so because it remains easy for school officials to allege that student speech will threaten school discipline or be substantially disruptive.

In Bethel School District v. Fraser, the Court allowed school officials to censor student speech that was lewd and plainly offensive. This exception to Tinker implies that a school could ban sexually explicit speech even when that speech is somewhat political, which outside the context of public schools, would be presumptively constitutionally protected unless it were, legally speaking, obscene. On top of that, this decision could be read more broadly to authorize school officials to censor student speech that they deem inappropriate or offensive even if it lacks sexual innuendo. Hazelwood School District v. Kuhlmeier empowers school officials to prohibit speech in school-sponsored activities that bear the imprimatur of the school, like the school newspaper, plays, dances, and sporting events. This ruling would mean that a school might be able to ban football players, who represent the school, from taking a knee during the playing of the national anthem to protest police brutality, as long as the sporting event qualifies as a school-sponsored event and the school can show that the restriction on the player’s speech is reasonably related to a legitimate educational interest, such as teaching respect for the flag or the police. Likewise, school officials, with different political views, probably could ban the football team from wearing armbands that read “Blue Lives Matter.” In Morse, the “Bong Hits for Jesus” case, the Court made another exception to Tinker, ruling that schools could ban speech that advocates illegal drug use, prompting Justice Thomas in his concurrence to propose that Tinker should be explicitly overruled. As Justice John Paul Stevens implies in his dissent, this decision could be read more broadly as permitting some viewpoint discrimination, which normally would be, without question, constitutionally impermissible elsewhere. Mahanoy, which the Court decided several years ago, may seem like a long overdue victory for student speech, but eight of the justices ended up protecting a student’s crude speech (and gesture) on social media when she was off campus, in a parking garage at a mall on the weekend.

My objective is not only to go much farther than the Court did in Tinker by spelling out why almost all student speech should be constitutionally protected but to clarify what the law should be. The clearer the legal rule or standard is, the harder it will be for school officials to restrict student speech without adequate justification and the harder it will be for judges to permit such restrictions when they are litigated. That is not to say that a clearer precedent itself could prevent school officials from restricting student speech that is unequivocally constitutionally protected, yet it is to say that as much as possible, the Court should make it more difficult for them to do so if they are so inclined. For now, due to this lack of clarity in this area of First Amendment law, those who have little sympathy for student speech can construe the relevant precedents broadly and can emphasize some decisions over others, allowing their own political preferences to determine whether the student speech in question can be banned. In other words, a lack of clarity facilitates viewpoint discrimination. After all, for many school officials and teachers, their primary concern will be the enforcement of school discipline so that understandably, it will be easier for them to do their jobs, including avoiding controversy. However, that tendency is troubling when this discretion would enable a school official to censor student speech that either is, or at least should be, constitutionally protected, and most likely would be protected if the speaker were an ordinary adult or a student off campus.

In making the case that student speech should receive considerably more constitutional protection than it has received in the past, I know that I will not come close to persuading everyone, such as school officials and teachers who are on the front lines, so to speak, and have a very difficult job to do. Nevertheless, I hope that what I have to say will resonate with many of those who are on both the left and the right of the American political spectrum. What I mean by that is despite deep partisan differences, it may be possible to convince those who are on different ideological teams that they have good reasons not to give school officials the authority to censor so much student speech. Because school officials at a particular school could be progressive or conservative, an individual has no way of knowing in advance whether the political views that she favors --or those of her children-- will be at risk of being censored if she were thinking about the situation from an impartial standpoint. Each person should assume that in the absence of constitutionally protecting almost all student speech, her worst political “enemy” will be deciding which student speech can be silenced. The best rule, then, would be to not empower school officials to censor student speech.

One might believe that Americans can learn about the importance of free speech in other places, outside of school, when they are young, and to some degree that is true. But it strikes me that a public school is an ideal place for such learning to take place. First, about 90% of Americans still attend public schools, even when home-schooling and private schools remain an option for some of them. Second, students spend a considerable amount of their time in school during the academic year where they must interact with others, some or many of whom may be different than they are. Third, many of them will not attend college. Thus, junior high and high school will be their only opportunity to be exposed to the various dimensions of free speech in an educational environment. Fourth, when it comes to free speech, there really is no substitute for learn by doing. Although it is imperative that students learn about famous free speech cases in their high school government course and discuss freedom of expression in the abstract, I doubt that an experience in the classroom would substitute for the actual experience of either expressing a political view about, say, healthcare, the war on drugs, mass incarceration, or police brutality, or having to deal with speech that one really disagrees with in face-to-face interactions. Fifth, there are almost always non-censorious alternatives.

The most serious difficulty with not protecting enough student speech is that it is terribly inconsistent with the most appropriate understanding of modern free speech doctrine and its underlying principles. That is an unjustifiable double standard where restrictions on speech that ordinarily are not permissible are allowed in an educational setting (where they would be on a college campus, for instance) when at least arguably, free speech rights are even more important. Once one can show that a public school is, for the most part, best thought of as a kind of public forum for students, who have a constitutional right to express themselves and others have a right to hear them, then it becomes much more difficult to defend restrictions on student speech. When school officials censor such speech, whether they realize it, they are indoctrinating them instead of appealing to their rational faculties. At the end of the day, school authorities must start acting within the limits of the First Amendment.

Ronald C. Den Otter, is Professor of Political Science, California Polytechnic State University, San Luis Obispo. You can reach him by e-mail at denotter@calpoly.edu.

[1] Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring).

A Ballroom Too Far: Republicans’ Procedural Blunders

2026-05-24T15:35:16.867-04:00

Over the past week, the Trump Administration celebrated the completion of its trifecta of retribution against dissident Republicans, defeating Rep. Tom Massey (R-Ky.) in his primary after previously doing the same to Sen. Bill Cassidy (R-La.) and a group of Indiana state senators opposed to mid-decade partisan redistricting. Yet rather than having grounds to celebrate, Republicans ended the week in disarray. Much of this is the toll of accumulated public discontent over the economy, the war in Iran, a violent anti-immigrant campaign, and a host of other self-aggrandizing actions seeming disconnected from the nation’s genuine problems. Congressional procedure, however, played its role. This post explains how Republicans’ “strong” moves have landed them in such a mess.

The epidemic of violence by Immigration and Customs Enforcement (ICE), Customs and Boarder Protection (CBP), and cooperating agencies led Democrats to demand restrictions on those agencies’ actions in the Homeland Security Appropriations bill. The White House rejected even fairly basic limits, shutting down negotiations between the two parties’ appropriators. This led to a partial government shutdown when Democrats effectively filibustered that bill. Democrats repeatedly offered, and forced Senate Republicans to vote down, bills appropriating funds to the rest of the Department of Homeland Security (DHS), apart from ICE and CBP.

The One Big Beautiful Bill Act last summer fully funded ICE for this fiscal year and beyond. CBP was a bit less flush but also in no immediate distress. Essential workers in other DHS agencies, however, were getting increasingly restless as they were not getting paid. The Administration illegally paid those workers once, defying the Constitution’s Appropriations Clause, but got cold feet about doing so again.

With polling showing that the electorate was modestly more inclined to blame Republicans for the shutdown, Senate Republicans tired of having to vote down funding for the Coast Guard, the Transportation Security Administration, and other popular agencies. They agreed to the Democrats’ proposal to fund the rest of DHS without ICE and CBP. They justified this capitulation by announcing that they would fund those two agencies through a reconciliation bill that Democrats could not filibuster. House Democrats had no comparable means of forcing awkward votes so the House Republicans were feeling less pressure. House immigration hawks initially condemned the Senate Republicans’ capitulation but ultimately passed the Senate’s all-but-ICE/CBP appropriations bill.

Because they are exempt from filibusters, reconciliation bills often become “Christmas trees”, with everyone in the majority party trying to attach their own contentious items. This bill was no exception: the White House apparently insisted on adding $1 billion for the President’s grand ceremonial ballroom. The President had previously promised that no public funds would go into his ballroom – and secured large donations from companies seeking favors from the Administration – Republicans argued that these funds would go entirely for security improvements adjacent to the ballroom. Given the ballroom’s unpopularity, this raised the political cost of the bill considerably. And the ballroom’s inclusion turned out to be a procedural disaster.

Because reconciliation bills are extraordinary in that they may pass on a simple majority vote, the procedures for their consideration are more formal than usual. Before bringing a reconciliation bill to the floor, the majority must first pass a “budget resolution” through both chambers that assigns budgetary limits to each committee intended to contribute material to the final bill. Reconciliation procedures also allow the minority to force votes that the majority could dodge on other legislation.

The Republicans’ budget resolution gave budgets only to the Homeland Security and Judiciary Committees, which divide jurisdiction over immigration. They likely could have given ICE and CBP all the money they desired through the Homeland Security Committee alone. The Judiciary Committee, however, has jurisdiction over the Secret Service, and to keep up the pretense that the ballroom funding was only for security improvements, Republicans decided to channel it through the Secret Service. To give Judiciary Committee members political cover, Republicans had that committee create some of the ICE/CBP funds as well.

This all blew apart when the bill reached the floor. First, Democrats persuaded the Parliamentarian that the White House complex well within the jurisdiction of the Environment and Public Works or Energy and Natural Resources Committees, neither of which was given any money to spend in the budget resolution. Senate rules attribute spending to the committee with jurisdiction even if it springs from legislation reported out by another committee. Therefore, the ballroom funding was subject to a point of order for increasing those other committees’ contribution to the deficit without permission in the budget resolution. If Republicans did not strip the ballroom from the bill themselves, Democrats could raise a point of order that would require sixty votes for Republicans to waive.

The problems did not end there. Although the White House complex is not within the Judiciary Committee’s jurisdiction, the Justice Department is. Amendments to reconciliation bills that reduce the deficit within the jurisdiction of one of the participating committees are generally in order. Therefore, by trying to fund the ballroom, Senate Republicans likely allowed Democrats to offer an amendment to the bill that would explicitly forbid the President’s already unlawful $1.776 billion “weaponization” compensation fund. With half of the Republican caucus reportedly up in arms over the morality and wisdom of that fund, such an amendment would easily pass.

To be sure, House Republicans could add back the ballroom and delete any restrictions on the “weaponization” fund. But with Rep. Massey and all Democrats surely opposed, that could mean that every other Republican, would have to vote for this politically toxic bill – including those facing difficult re-election battles. By tradition, Democrats can force one floor vote, on a motion to recommit the bill to committee. Democrats would surely force Republicans to vote on removing the ballroom, barring the “weaponization fund”, or both (by reverting to the Senate version of the bill).

And even if the House changed the bill to the President’s liking, that would probably force the convening of a House-Senate conference committee. At a minimum, this would entail further delay. And the prospects on the Senate floor of a conference bill that either funded the ballroom or allowed the “weaponization fund” would be dubious at best: in addition to Sen. Lisa Murkowski (R-AK), who likely opposes it on substance (and who years ago showed she could survive a primary challenge), leadership would have to worry about Sen. Susan Collins (D-Me.), who is in a difficult re-election battle, as well as Sen. Cassidy, whom the President just defeated for re-nomination, Sen. John Cornyn (R-Tex.), whom the President is trying to defeat next week, and two senators forced into retirement with threats of primary challenges (Sens. Thom Tillis of North Carolina and Mitch McConnell of Kentucky). Overzealous efforts to enforce party discipline can quickly backfire.

The Senate Republicans’ impasse over the ICE/CBP reconciliation bill also imperils other parts of the President’s agenda. Democrats are unlikely to support full funding for the war in Iran that the President launched without consulting Congress – at least not unless it imposes new limits on presidential war-making powers. Republicans had increasingly been discussing yet another reconciliation bill to fund the war and avoid a filibuster. These discussions have stalled as Republicans may not have fifty votes for such a bill. But if they cannot pass the comparatively easy ICE/CBP reconciliation bill, the odds of twisting enough arms to move a much more contentious war reconciliation bill seem even more remote. Again, the President’s choice to end the careers of four Republican senators for perceived disloyalty considerably weakens his leverage.

This also further undermines the President’s demands that Senate Republicans abolish the filibuster to enact the voter-suppressing “SAVE Act”. Senate Majority Leader John Thune had reported that he lacked the votes to do so even before the latest meltdowns. Now that the President has personally alienated more senators, and forced the Republican Senate to become accustomed to resisting his agenda, the SAVE Act’s prospects have dimmed even further.

House rules give the Speaker near-absolute procedural control of what comes to the floor and how. One of the few powers the minority does have, however, is the ability to advance a resolution disapproving of a President’s military engagement. House Democrats sought to do so this past week, with Republican leadership expecting to defeat the resolution on a party lines’ vote. They had to adjourn hurriedly, however, when they discovered that they did not have sufficient Republican votes to prevail. This vote now awaits them upon their return. The President can and surely would veto any anti-war resolution that actually passes, but the prospect of House Republicans in difficult districts having to choose between the President and their anti-war constituents likely is haunting many Members’ recesses. This could be why the President suddenly seems in a hurry to announce a deal despite the Iranians apparently having capitulated on nothing.

Progressives commonly demand that Democrats enforce tighter party discipline and eliminate the filibuster. It is instructive to see how fierce party discipline and the filibuster have been pummeling Republicans this year.

@DavidASuper1 @DavidASuper.bsky.social

R.I.P. Ran Hirschl

2026-05-22T16:07:01.489-04:00

Ran Hirschl was a pathbreaking scholar, an even better human being, and an even better friend. Words cannot capture his impact on scholarship and on the lives of the numerous scholars he touched. The excerpts from a letter on his behalf are a weak attempt to do justice to him and his legacy. They remain in the present tense because through his works, example, and encouragement, Ran will always be with us.

Hirschl is the leading thinker on comparative constitutionalism in the world. No political scientist in the public law field, no political scientist in the comparative government field, no law professor, and no member of any other discipline has come close to his achievements. Each of Professor Hirschl’s books is acknowledged as path-breaking. No one knows more about constitutional developments in different parts of the world. No one has done more to inspire the contemporary renaissance in comparative constitutionalism. No one has played a greater leadership role in this comparative constitutionalism revival. You could divide Hirschl’s resume in half and probably thirds and each piece would have a powerful case for a lifetime achievement award in numerous disciplines and in numerous fields within those disciplines.

Hirschl has a stunning range of expertise, a range that dwarfs any other scholar that I know of in political science or law. One finds in his publications a sophisticated understanding of political theory, all aspects of public law, and comparative politics. He has clearly mastered the literature on democratic theory, on constitutional interpretation, on law and society, and on judicial politics. He seems to have mastered the general literature on comparative constitutional law, and the specific constitutional politics of almost every country with constitutional politics. His chapter on case studies in Comparative Matters is an extraordinary methodological piece, one I regular insist my students examine. I have always been particularly impressed with Professor Hirschl’s capacity to both know the details of what almost every constitutional court in the world is doing and to organize those details into theoretically rich arguments. Maybe somewhere in an obscure province in India, a constitutional development exists that Hirschl does not know about. But neither I nor any of the numerous reviewers of his works have been able to identify this omission. I am confident Vulcan of Star Trek fame is fiction, because Professor Hirschl has never discussed the Constitution of Vulcan.

This erudition extends far beyond law and political science. Consider the first chapter of City, State: The Constitutionalism and the Megacity. The chapter begins with an extensive discussion of what almost every social science field has said about cities for the past fifty years. Hirschl seems to have a fluency in subjects ranging from sociology to architecture that would do experts in those field proud. Perhaps I need to get out more, but I cannot think of a scholar in any field whose expertise ranges over so much political science, so much law and so much scholarship as Professor Hirschl. The other books are similar. Hirschl does not simply master law and political science. He masters whatever disciplines are necessary to cast light on his subject matters.
Professor Hirschl’s forthcoming book, Constitutionalism 2050 points out that the traditional nation-state no longer serves to manage central problems. The problems regimes face, from climate change to globalization to pandemics are now international. Local national governance, he observes, weakens human capacity to respond to these problems. Constitutionalism must go global for the human race to survive. Putting aside jealously, I had two thoughts when he was presented. Sandy Levinson accurately describes this work as the most important book on constitutionalism published in the twenty-first century. As always the erudition is remarkable; the thesis strikingly original, and the importance speaks for itself.
Professor Hirschl is a fellow of the Royal Society of Canada, which is the equivalent of being a member of the American Academic for the Arts and Sciences in the United States (both are academic halls of fame). He has held distinguished chairs at the University of Toronto, the University of Texas, and the Max Planck Institute in Germany, as well as holding distinguished visitor chairs at the National University of Singapore, New York University and Harvard Law School. He has won national and global awards for scholarship and delivered addresses, often named, at almost every major university in the world. He is a former Co-President of the International Society of Public Law and one of the founders of that organization. He has published many edited collections and nearly one-hundred essays, many of which have been republished and translated elsewhere. The evidence clearly indicates, I should add, that none of his works seem to have been written by Christopher Marlowe.
Professor Hirschl excels at all facets of the academy. He was an award-winning teacher at Toronto. When I wrote his recommendation for the Canada Research Chair, the University of Toronto presented me with as strong a set of teaching evaluations, both for graduate students and undergraduates, as I recall seeing. He has helped mentor the younger generation of comparativists. You see Professor Hirschl’s name in manuscripts by junior scholars warmly thanking him for the time and energy he gave to reviewing junior manuscripts. He has been a leader in comparative constitutionalism, not just as a scholar, but as a founder and leader of the International Society of Public Law. Thanks in significant part to his efforts, ICON-S is probably the most important site in the world for comparative constitutionalism. Finally, on a personal note he is a warm and trusted friend to many of us in the academy.
Professor Hirschl has a global reputation for excellence and as fine a global reputation for decency. He is an outstanding teacher, mentor, colleague, and friend.

There will be a program at APSA honored his memory and achievements. Others are in the works. All we can do for the present is miss terribly this amazing scholar, human being and friend.

Still Searching for University Democracy

2026-05-19T16:27:09.801-04:00

In May of 2024, I wrote an essay on this blog about recent developments at Columbia that ended with the vague but earnest suggestion that “developing a more democratic model of internal governance ... may be a prerequisite not only for rebuilding intellectual community but also for avoiding future campus conflagrations.” That essay did not explain what a more democratic model of internal governance might look like. Nor did it explore why so many U.S. colleges and universities came to be run as “liberal autocracies,” what the costs and benefits of alternative governance arrangements might be, or how reformers might try to bring them into being.

Two years and countless democratic disappointments later, Daniel Hemel and I have just posted a paper titled In Search of University Democracy that takes up those questions. Here is the abstract:

Virtually all institutions of higher education in the United States share the same basic governance structure. Ultimate authority resides not with faculty, students, staff, or their representatives but with an external board of trustees and the senior management it installs. At private universities, most new trustees are chosen by current trustees. At public universities, most are appointed by politicians. At both, boards are unrepresentative of and unaccountable to the campus community. This governance model does not reliably produce better educational or operational outcomes; it sits in stark tension with universities’ aspirations to be autonomous intellectual communities; and it has been rejected by prominent universities abroad. Why is it ubiquitous here?

This Article identifies and explores the puzzle of the missing alternative: a stakeholder structure that allows core internal constituencies, such as faculty and students, to select a majority of trustees and approve major decisions. Looking backward, the Article considers possible answers to this puzzle—including path dependence, institutional isomorphism, and donor preferences—and argues that they do not fully explain or justify the continued absence of stakeholder universities in the United States. Looking forward, the Article calls attention to the educational, epistemic, economic, and civic benefits that stakeholder governance could bring, along with a number of costs and complications. Finally, the Article outlines different forms that stakeholderism might take and different strategies that reformers might employ. There are no easy or uniform answers to the question of how universities should be run. But at a time when higher education faces mounting threats from political actors at the federal and state levels, there are good reasons to believe that more stakeholder-oriented governance models could help to safeguard the academic mission of universities as well as the democratic capacity of the broader society.

I learned a great deal from Balkinization readers who reached out about the earlier essay and others that followed it. Daniel and I would welcome any comments on this new draft.