Balkinization

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.

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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.

Jan 6th as Bastille Day

2026-05-19T14:17:55.581-04:00

I guess that's the official theory anyway. The French Revolutionary government gave the rioters medals, cash awards, and (in some cases) pensions.

By the way, while I'm sure that the so-called settlement is unlawful under the Appropriations Clause, I've not made up my mind about how Section 4 of the Fourteenth Amendment might apply. One sticking point is that Confederate veterans received state pensions for decades, though those were appropriated by state legislatures. I need to think through the relevance of that practice.

Is the New “Weaponization” Compensation Fund Lawful?

2026-05-19T00:21:25.027-04:00

President Trump, his older sons, and his business have filed several claims against the United States Government that he controls. On May 18, 2026, the Department of Justice announced that plaintiffs’ lawyers, whom President Trump controls, and defendants’ lawyers, whom he also controls, have settled some claims. Under this agreement, the Government would establish a fund to pay compensation to individuals who allege they were victims of improper “weaponization” of the federal government during President Biden’s administration. Although widely reported to be for persons who were tried and convicted for crimes relating to the January 6, 2021, assault on Congress, the settlement agreement does not specifically mention that attack and allows anyone who feels they were victimized to file a claim. The agreement does not designate any amount of money to go to this fund, although Acting Attorney General Todd Blanche’s announcement says it will receive $1.776 billion. (The settlement also, unconvincingly, tries to shield the payments it makes from taxation.) The Administration has made clear it does not intend to seek approval or an appropriation from Congress. This post examines the legality of this arrangement.

One simple answer is that section 4 of the Fourteenth Amendment declares that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States … but all such debts, obligations and claims shall be held illegal and void.” The unprecedented attack on Congress on January 6 was an “insurrection or rebellion against the United States”. Any purported debts perpetrators might file likely were incurred in aid of that insurrection and therefore that are “illegal and void”. To be sure, the purported debts are not for the costs of the insurrection itself but rather to compensate for the lawful punishment the insurrectionists subsequently suffered for their acts. The sequence, however, should not matter: the law long has recognized liability for acts assisting perpetrators of crimes occurring entirely after the crimes were committed.

To be sure, some people who did not participate in the January 6 insurrection may claim to have been victims of other federal abuses. Section 4 would not bar relief for them. Nonetheless, they – as well as the January 6 claimants – would be barred from receiving money from this fund for other reasons.

Article I, section 9, clause 7 of the U.S. Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. Similarly, the Anti-Deficiency Act provides that “Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government or of the District of Columbia government may not…make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”. Violations of the Anti-Deficiency Act carry criminal penalties. Therefore, Justice Department officials involved in creating or administering the proposed fund would face serious personal jeopardy if they cannot identify a congressional appropriation permitting these expenditures or feel confident they will be included in a future pardon.

Acting Attorney General Blanche’s statement declares that the Administration will make these payments under the Judgment Fund, a permanent uncapped appropriation for paying judgments against the United States Government. The drafting of the settlement agreement, however, may preclude that. Section IV.A directs Acting Attorney General Blanche to issue an order within 30 days of the agreement that “shall establish funding” for the program. Section VII then states that the settlement agreement and the accompanying orders of the Attorney General “constitute[] the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.” Thus, the settlement agreement does not require any particular level of funding and any side agreement on the $1.776 billion figure has no legal effect. Acting Attorney General Blanche could have fully complied with the settlement agreement by designating one dollar for the fund. His voluntary choice to provide more than was obligated was not necessary to settle these cases and hence is not covered by the Judgment Fund.

Yet even without these technical blunders, the Administration’s broader theory cannot withstand scrutiny. It is arguing, in essence, that the mere act of filing a lawsuit against the Government allows President Trump to fully circumvent the Appropriations Clause and the Anti-Deficiency Act by “settling” for any spending he desires. He thus could file a meritless lawsuit against the Government he controls and then “settle” for taxpayers’ dollars to build his ornate ballroom, to fund his grand “Arc d’Trump”, or even to pay for foreign wars that Congress declines to fund.

As in the case of other Administration legal theories that purport to confer transformative powers onto the President, we should ask ourselves whether the Framers, or Congress, or the courts, have really left such a spectacular loophole in our system of checks and balances. In some instances, the answer may be that our forebears failed to imagine presidential power being exercised with such blatant dishonesty and bad faith. But often close examination of the controlling legal materials shows that the purported sweeping powers are a phantom.

The Judgment Fund provides an appropriation to pay a “judgment, award, or settlement” under any of ten specified federal laws or a decision of a board of contract appeals. Six of the enumerated statutes are obviously inapplicable to this situation. Section 2677 allows settlement of claims under section 1346(b), but the latter strictly limits recoveries to “injury or loss of property, or personal injury or death”, a much narrower set of harms than the settlement agreement contemplates, and further limits recoveries by persons incarcerated after felony convictions. Section 2672 is similarly limited to claims for “injury or loss of property or personal injury or death”. Section 2517 is limited to judgments of the Court of Federal Claims, not settlements.

That leaves section 2414. That section, too, primarily addresses court judgments. It does, however, provide that “[e]xcept as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.” This is the only possible basis for accessing the Judgment Fund here.

Section 2414’s permission to pay settlements of claims, however, is subject to limits in other laws. One such federal statute is section 1359 of Title 28, which provides that “[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.” President Trump suing the U.S. Government, which he completely controls under the Unified Executive Theory he has tirelessly invoked, would strike many as a collusive attempt to invoke the jurisdiction of the federal court to facilitate a settlement of his liking. President Trump acknowledged that this litigation appears to be brought against himself.

Another such statute is section 530B(a) of Title 28, which provides that “An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.”

Florida Bar Rule 4-3.1 prohibits meritless or frivolous litigation; Rule 4-3.3 requires candor toward the tribunal. District of Columbia Rules 3.1 and 3.3 are similar. Litigation in which the same individual controls both sides is inherently misleading to the court and does not call for the adversarial resolution of any questions of fact or law.

As the U.S. Supreme Court has said, litigation in which the same person controls both sides “is not in any real sense adversary. It does not assume the ‘honest and actual antagonistic assertion of rights’ to be adjudicated – a safeguard essential to the integrity of the judicial process”. The Supreme Court of Florida has cautioned against “connivance in [the] defeat” of a party, which certainly occurs when the plaintiff has full control over the defense. It warned that “[t]he fairness of the system is undermined when the alignment of interests in the litigation is not what it appears to be.”

Acting Attorney General Blanche’s press release cites a settlement the Obama Administration made with Native Americans as precedent for its actions here. That case, and many others, did settle litigation against the federal government with moneys from the Judgment Fund. That settlement, however, did not result from litigation where the same individual controlled both sides of the litigation. And that settlement was approved by a judge while the settlement of President Trump’s litigation was hustled through this week to save the parties from having to file briefs the court sought on whether they have sufficient adversity to secure federal jurisdiction.

A series of memoranda from the Justice Department’s Office of Legal Counsel make clear that the Judgment Fund is not available to pay collusive settlements. As summarized in a 2023 memorandum from the Associate Attorney General (with citations omitted):

A settlement must conform to any applicable statutory limitations and serve the "best interests" of the United States. The President's constitutional obligation to take care that the laws be faithfully executed "necessarily serves to limit the exercise of the Attorney General's settlement authority so that it does not become a dispensing power." OLC has therefore concluded that the Department may compromise claims only if the Department makes a "good faith assessment" that a court could find the government liable. Further, the Judgment Fund is available for the payment of a settlement only if "the cause ofaction that gave rise to the settlement could have resulted in a final money judgment." And, relatedly, the Judgment Fund may not be used to pay for the settlement of claims that, if they resulted in a judgment against the government, would "impose costs on the government, but [would] not require the United States to make specific cash disbursements" to certain parties, such as a "judgment[] that required the United States to furnish subsidized housing, or that required the United States to correct structural defects in housing." These strictures ensure that the potential use of the Judgment Fund does not "encourage settlements that would not otherwise be in the interest of the United States."

OLC has cautioned that we should “not lightly attribute to Congress an intent to create a structure that might encourage settlements that would not be in the interest of the United States.” Tapping the Judgment Fund to pay for settlements of non-adversarial litigation does that with a vengeance.

When extravagant legal theories that defy logic and the Constitution seem too good to be true, they often are.

@DavidASuper1 @DavidASuper.bsky.social

Does the Appropriations Clause Have Bite?

2026-05-15T14:12:23.282-04:00

Article One, Section Nine, Clause Seven states in part:

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . ."

Let's say a President asks Congress for $1 billion to fund a project that he's keen on. Congress declines the request. The President then sues the United States on some fictitious claim of injury and the US "settles" the case for $1 billion. The President then uses that money to fund the project that he wanted.

Structurally, this must be forbidden. The power of the purse would be gravely weakened. But what is the textual basis for such a bar? I think it would be the Appropriations Clause, on the theory that a collusive lawsuit or settlement is not law. But I must admit that I do not know much about the original meaning or the application of the Appropriations Clause. Might be worth a closer look.

Don't Look Now, but the War Powers Resolution is Working

2026-05-15T13:35:02.851-04:00

When I researched my book on war powers (Long Wars and the Constitution), I noticed a shift in opinion had occurred with respect to the WPR by the end of the Clinton administration. Before then, it was commonly claimed that the WPR was washed up, even legally defunct. During the 1988 episode in which the U.S. took military action and reflagged oil tankers toward the end of the Iran-Iraq war, senators seemed to despair about whether the WPR even applied. But by Clinton’s 1999 intervention in Kosovo, members of Congress were actively using the WPR as a reference point in evaluating the administration’s actions, criticizing Clinton for going beyond the 60-day limit. Perhaps it took a Democratic presidency for both parties to care about the WPR.

Be that as it may, it is striking that that the WPR’s doubting critics have never come up with criteria to support a judgment that it is legally irrelevant. But since so many still seem skeptical, let’s turn that inquiry around – how would we know that the WPR is working? One criterion, advocated by the eminent legal philosopher H.L.A. Hart, is when a normative requirement is a basis for criticism when it is violated. The existence of Hart’s famous “internal point of view” shows that the requirement in question is in fact accepted as a norm – in the case of the WPR, as binding law. The WPR has been used multiple times in this way since at least the Kosovo intervention and probably well before. And, by the way, it is false that “every” president has regarded the WPR as unconstitutional – not that this would make any difference. Passed by a congressional supermajority over President Nixon’s veto and backed by overwhelming public support, it has all the legal authority it needs.

The fact is that until “Mr. Trump’s war” – a historical designation that seems to have unaccountably gone out of style – every major military action since Vietnam had been legally approved by legislative Authorizations to Use Military Force (AUMFs). This method of legality is specifically contemplated by the WPR and, one might add, by the Constitution itself. This certainly highlights the difference between Trump’s Iran War and the 1990 Gulf War, the 2001 9/11 War, and the 2003 Iraq War, but fully supports the legal relevance of the WPR.

And don’t look now, but Congress, controlled by Mr. Trump’s party, is creeping ever closer to influencing his ability to take further military action. Whether Trump personally regards this as a “war” is irrelevant. Members of Congress of both parties, guided by the norms in the WPR, regard it as such.

The WPR has clearly disappointed many people who are looking for an automatic shut off valve to use against a wayward executive branch. But within the context of the nation’s foreign policy in which military action is just one element, this was never very likely. Absent a more favorable reception by the executive (no president has even so much suggested useful reforms to the WPR), it nonetheless has become a meaningful tripwire for the exercise of congressional responsibility.

The Ominous Texas Ten Commandments Case

2026-05-13T16:23:57.973-04:00

Suppose a state mandated that signs be posted in every public school classroom declaring “Jesus is Lord.” Wouldn’t that violate the First Amendment’s ban on establishments of religion? Until this week the answer was clearly yes. But after a decision last week by the Fifth Circuit Court of Appeals, who knows? That court has announced, and likely sent toward a sympathetic Supreme Court, a previously unheard-of interpretation that practically nullifies the Establishment Clause.

I explain in a new column at The Hill.

Pardon as Contract

2026-05-12T10:10:00.000-04:00

A week ago Sunday, Jeanine Pirro, the U.S. attorney in Washington, told CNN’s State of the Union that she would appeal the order voiding grand jury subpoenas against Federal Reserve Chair Jerome Powell and further indicated a willingness to pursue the case against Powell anew. But less than two weeks earlier, on April 24, the Department of Justice had announced it was dropping that same criminal investigation. It appears that any commitment the President makes today can be rescinded tomorrow.

That credibility problem is now blocking the normal transition of leadership at the Fed. The President wants Jerome Powell out as a Fed Governor, because Powell’s seat, which runs through early 2028, gives Powell a vote against the interest-rate cuts that the President desperately wants.

But resignation strips Powell of the institutional protection that has, so far, kept the Justice Department at bay. Federal district judge James Boasberg quashed the original grand jury subpoenas — for alleged misstatements to Congress about the Fed's headquarters renovation — because their “dominant (if not sole) purpose is to harass and pressure Powell either to yield to the president or to resign and make way for a Fed chair who will.” That improper-motive finding evaporates the moment Powell is no longer at the Fed. The DOJ has pursued former FBI director James Comey twice since he left government service; nothing in the law would stop the DOJ from coming after Powell after he resigns.

Powell can be forgiven for wanting assurance, before resigning, that the criminal investigation is “well and truly over with finality and transparency.”

A conditional pardon might give both sides what they want. Such a pardon, conditioned on Powell’s prompt governorship resignation, would credibly discharge Powell’s exposure to prosecution, while simultaneously giving conceding to the President an additional appointment to the Board of Governors.

Presidential pardons are not self-executing. Like contractual offers, they can be rejected by the potential pardonee. Moreover, a President is free to attach conditions to acceptance. As my colleague Stephen Carter has summarized, “One who accepts the pardon agrees to the conditions; and those conditions, unless they demand an illegal act or are impossible to perform, become legally binding.”

Conditional pardons of this sort are hardly a modern invention. Presidents have used them since the early Republic to attach strings to clemency. In 1829, Andrew Jackson pardoned one recipient on the condition that he learn “some beneficial trade” — essentially, that he get work and become self-supporting. Other presidential pardons have required recipients to serve in the military, leave the country, or otherwise accept limits on their freedom as the price of forgiveness.

Presidents would do well to continue this tradition more deliberately. For example, President Biden did his son and the public no favors when he granted Hunter a “full and unconditional” pardon. Hunter Biden has publicly acknowledged a history of addiction, and federal law bars gun possession by users of controlled substances. The President’s pardon could have made Hunter’s agreement not to purchase or possess firearms a condition of clemency.

A meaningful concern is whether offering Powell a conditional pardon would look like asking an innocent man to confess. The Supreme Court observed in Burdick v. United States that a pardon "carries an imputation of guilt; acceptance a confession of it." Moreover, accepting this pardon might set a harmful precedent of normalizing a kind of presidential extortion.

To be clear, in putting forth the possibility of a conditional pardon, I am not suggesting that Powell broke the law. Indeed, to my mind, the public record supports Judge Boasberg’s conclusion that “the government has offered no evidence whatsoever that Powell committed any crime other than displeasing the president.”

But the possibility of vindictive prosecution is unfortunately no longer a hypothetical possibility. The realistic question is not whether to engage with the President's leverage, but whether to convert it into something binding.

We tend to think of pardons as presidential largess, which, like mercy, “droppeth as the gentle rain from heaven.” But in this case, a pardon would be a commitment device that would tie the president’s own hands. Once accepted, the president could not rescind it, the Justice Department cannot revisit it, and Powell would exit with the protection that resignation alone would otherwise strip away.

Powell might choose to reject an offered conditional pardon. He has indicated that he might stay on even if the criminal investigation were dropped once and for all, saying that his decision would be guided by what he believes would be in “the best interest of the institution and the people we serve.”

Recent Fed chairs have honored the tradition of stepping down from their governorships when their terms as Chair end. A conditional pardon would grant Powell the opportunity to continue that tradition gracefully — and would turn the abused executive power that created this credibility problem into an instrument that resolves it.

Birthright Citizenship and Apophatic Interpretation

2026-05-12T09:30:00.001-04:00

Carolina Núñez and Lucy Williams

For the last 15 months, the entire legal academy has fixated on five words: “subject to the jurisdiction thereof.” These words are the only limitation in the Fourteenth Amendment’s broad grant of citizenship to “[a]ll persons born or naturalized in the United States.”[1] They are also the words that the Trump administration seized upon in its executive order denying citizenship to children of undocumented immigrants. Since that EO issued, legal scholars have expended considerable effort debating what, exactly, “subject to the jurisdiction” requires. These debates have been so exhaustive (and so exhausting) that when the oral arguments in Trump v. Barbara finally rolled around, it was hard to imagine that those arguments might produce anything new.

And for the most part, they didn’t. The oral arguments largely tracked the parties’ briefs, which themselves draw heavily on the academic literature. Because of this, the arguments were relatively predictable, exploring the same ideas and questions that legal academics have been feuding about since Trump’s second inauguration. The Court asked, and the advocates answered, familiar questions about allegiance, domicile, original public meaning, and precedent. For initiated listeners, not much was new.

Near the end of the argument, though, counsel for the respondents Cecillia Wang said something that did feel new. When asked whether there is “any way that there might be a different answer [to the question of birthright citizenship] with respect to the children of people who are here unlawfully,”[2] Ms. Wang answered, “[The framers of the Fourteenth Amendment] had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”[3] Though she did not elaborate further, she seemed to be suggesting something novel: The government’s position is untenable not only because it is inconsistent with the Fourteenth Amendment’s text or history or original public meaning, but also because it embraces something (inherited civic status) that the Fourteenth Amendment rejects.

Ms. Wang’s comment echoes an argument we have made in our working paper “Apophatic Inquiry, Birthright Citizenship, and the Anti-Aristocratic Constitution.” Our central claim is that constitutional interpreters ought to consider not only what the Constitution affirmatively says, but also the things it omits, rejects, and negates. This approach, which we call “apophatic interpretation,” is modeled after apophatic theology, which seeks understanding through negation—by focusing on what something is not rather than what it is. It is not, itself, a freestanding method of constitutional interpretation, and it does not supplant or displace the familiar interpretive modes. Instead, it simply re-frames the question that existing interpretive modes seek to answer—from “What do these words mean?” to “What meanings do these words preclude?”

To appreciate the advantages of an apophatic orientation, it is helpful to first consider what, exactly, the act of interpretation entails. Though scholars in constitutional law, philosophy, political theory, and hermeneutics disagree about what it means to interpret a text, they largely agree on why we do it: to identify or discern a text’s meaning. This is an affirmative task (interpreters look for some existing meaning) and it answers an affirmative question: What does this text actually (affirmatively) communicate?

Apophatic interpretation flips this on its head. Rather than chasing the Constitution’s affirmative meaning, intention, or commitments, apophatic interpretation posits that the interpreter’s guiding question should be, “What is the Constitution not?” Interpreters may seek this negative meaning using their preferred interpretive tools—whether textualist, originalist, or living constitutionalist. But once they have identified the Constitution’s negative content, they must interpret the document’s affirmative provisions in ways that are consistent with those rejections. Put differently, apophatic interpretation helps interpreters identify meanings that are untenable because they enact what the Constitution was designed to reject. In doing so, apophatic interpretation maximizes our options for constitutional action and agency: As long as we do not enact what the framers rejected, we should feel empowered to explore many possible constitutional interpretations.

Applied to the question of birthright citizenship, an apophatic approach provides new and additional evidence that the Trump administration’s EO cannot stand. As we argue in our working paper and in this blog post, the Constitution emphatically and thoroughly rejects hereditary civic status. The Constitution’s very existence supports this view: The document formalizes the colonies’ rejection of English government and its hereditary-based political classes. It also contains multiple provisions that reveal a desire to keep inherited status at bay.

Take, for example, the Guarantee Clause of Article IV, which requires the federal government to secure for every state “a Republican Form of Government.”[4] Though the framers did not always agree about what republican government required, they all agreed on what republican government was not: a system of hereditary civic status. Madison, the chief architect of the Clause, wrote that it would empower the federal government to “defend the system against aristocratic or monarchical innovations.”[5] James Iredell described it as ensuring that “no state should have a right to establish an aristocracy or monarchy.”[6] In the lead-up to Reconstruction, members of Congress recognized slavery as the very antithesis of republicanism, with one legislator describing slavery as “a caste, an aristocracy, based upon . . . blood entirely inconsistent with republican government and republican institutions.”[7] The Joint Committee on Reconstruction later cited the Guarantee Clause as a legal basis for Reconstruction, including the Fourteenth Amendment.

The Constitution’s Titles of Nobility Clauses likewise reveal an anti-heredity ethos. These Clauses prohibit the federal and state governments from granting titles of nobility.[8] In doing so, they reject the link between blood and civic status that permeated English common law. Alexander Hamilton described the Nobility Clauses as “the cornerstone of republican government,”[9] and Madison called them “the most decisive proof of the Constitution's republican character.”[10] And though the Clauses were adopted with little debate, post-adoption commentary describes the Clauses and their state constitution counterparts as protecting against “hereditary rights, shadows of aristocracy”[11] and “hereditary rank and consequence.”[12]

Article III, Section 3 continues the Constitution’s anti-aristocracy project by providing that “no Attainder of Treason shall work Corruption of Blood . . . .”[13] At English common law, descendants could be punished for a predecessor’s treason. The Corruption of Blood Clause rejected that tradition. After the Constitutional Convention, James Madison approvingly observed that the provision restrained Congress from “extending the consequences of guilt beyond the person of its author,”[14] and Joseph Story reflected that corruption of blood inappropriately allowed for “the sin [to be] visited upon remote generations.”[15] Frederick Douglass later invoked the Corruption of Blood Clause to advocate for abolition, arguing that the Clause prohibited systems which, like slavery, punished children because of their parents’ status.[16]

In short, the Guarantee Clause, the Titles of Nobility Clauses, and the Corruption of Blood Clause each reject inherited civic status. They tell us that an individual’s relationship to the state cannot be inherited from a parent. And they tell us that children must not be punished for their parents’ wrongs (even in the case of treason—an active betrayal of the state). Taken together, these provisions form an anti-aristocracy constitutional framework. Whatever else the rest of the Constitution means, it must not contradict that underlying, apophatic rejection.

What does this mean for the question of birthright citizenship? If Trump’s EO goes into effect, children born in the United States to parents who are present in the country without authorization will be marked with civic disability: Rather than enjoy the status and privileges that come with citizenship, they will exist as lesser, second-tier members of the political community. This civic disability will burden every interaction they have with the government and with society as a whole. Ineligibility for means-tested public benefits may leave a growing caste of U.S.-born children without basic necessities. Vulnerability to immigration enforcement efforts, including possible detention and removal, even for those who have found a different path to immigration status, will threaten separation from family and community. And some may learn they are stateless because the country of their parents’ citizenship does not consider them citizens, either.

The consequences would compound over time. If those non-citizen children remain in the country and do not find some other way to naturalize or gain the requisite immigration status, they, too, will give birth to children who are not citizens. Those children will pass their inherited civic disability to their children. And so on. Meanwhile, people legally present in the United States will pass their superior civic status to their posterity, and on and on down the line. In short, the EO will create two parallel hereditary tracks: Some will inherit civic status privilege, and others will inherit the consequences of their parents’ (or grandparents’, or great-grandparents’) unauthorized presence.

Our anti-heredity Constitution does not brook this result. When so much of the Constitution repudiates civic heredity, it would be very odd indeed if the Citizenship Clause permitted civic benefits or disabilities transmitted through blood. Put differently, the Constitution’s rejections of hereditary civic status foreclose an interpretation of the Fourteenth Amendment that would deny citizenship to children born in the United States to undocumented or visiting parents.

Carolina Núñez is the Charles E. Jones Professor of Law at BYU Law. You can reach her by e-mail at nunezc@law.byu.edu. Lucy Williams is an Associate Professor at BYU Law. You can reach her by e-mail at williamsl@law.byu.edu.

[1] U.S. Const. amend. XIV, § 1, cl. 1.

[2] Transcript of Oral Argument at 115, Trump v. Barbara, No. 25-365 (U.S. argued Apr. 1, 2026) (statement of Kagan, J.).

[3] Id. at 118 (statement of Cecillia Wang, counsel for respondents).

[4] U.S. Const. art. IV, § 4.

[5] The Federalist No. 43, at 274 (James Madison) (Clinton Rossiter ed., 1961).

[6] James Iredell, Remarks at the North Carolina Ratifying Convention, in 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 195 (2d ed. 1888).

[7] Cong. Globe, 38th Cong., 2d Sess. 154 (1865) (statement of Rep. Thomas T. Davis), quoted in Forrest A. Nabors, From Oligarchy to Republicanism: The Great Task of Reconstruction 73 (2017).

[8] U.S. Const. art. I, § 9, cl. 8; id. art. I, § 10, cl. 1.

[9] The Federalist No. 84, at 512 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[10] The Federalist No. 39, at 242 (James Madison) (Clinton Rossiter ed., 1961).

[11] William Morrison, A Sermon Delivered at Dover 38 (Henry Ranlet ed., 1792).

[12] The American—No. 4, CONN. COURANT, Jan. 28, 1793, at. 1.

[13] U.S. CONST. art. III, § 3, cl. 2.

[14] The Federalist No. 43, at 273 (James Madison) (Clinton Rossiter ed., 1961).

[15] Joseph Story, Commentaries on the Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution 177 (1873).

[16] See, e.g., Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?, in Frederick Douglass: Selected Speeches and Writings 379, 390 (Philip S. Foner ed., 1999) (observing that slavery is a system of hereditary civic disability: “The slave is made a slave because his mother is a slave.").

The Ten Commandments Case: Constitutional Erastianism

2026-05-11T09:30:00.012-04:00

Arvind Kurian Abraham

When the Fifth Circuit upheld Texas's law mandating the display of the Ten Commandments in public school classrooms, most legal scholars will reach for the obvious reference points: Establishment Clause, the separation of church and state, the ghost of school prayer. The dissenting judges have dutifully explained the legal flaws of the Court's opinion. Few, however, will think about Erastianism. They probably should.

Erastianism, the 16th-century doctrine associated with the Swiss theologian Thomas Erastus, holds that the state possesses supremacy over the church in ecclesiastical affairs, including the power to determine matters of religious doctrine and belief. It is a doctrine most Americans would instinctively recoil from. And yet it is precisely what the Fifth Circuit has quietly endorsed.

Consider the precedent. Following Henry VIII's break with Rome, the English Parliament enacted the Statute of the Six Articles in 1539, prescribing the core articles of Christian faith for the Church of England. Most Catholics would have found little to dispute in the articles themselves. What was extraordinary was not the content but the act: laymen in Parliament, and not an ecclesiastical council, determining what Christianity required its faithful to believe. Henry VIII had not read Erastus, who was still a child at the time, but the instinct was the same. When the state reaches into the sanctuary and decides what doctrine says, something constitutionally and historically alarming has occurred.

The Fifth Circuit's ruling carries that same instinct into the present. Texas has selected a particular version of the Ten Commandments, a text whose numbering and content are genuinely disputed across Jewish, Catholic, and Protestant traditions, and plastered it on the walls of public school classrooms by force of law. The state has not merely accommodated religion. It has presumed to define it. That is not a constitutional novelty. It is Erastianism.

But surely we know what the Ten Commandments consist of? Not quite. There are, in fact, three versions of the Ten Commandments, also known as the Decalogue, in the Pentateuch, and they do not say the same thing. The Ten Commandments make their first appearance in Exodus 20, only to resurface with notable differences in Deuteronomy 5. More striking still is what occurs in Exodus 34, as highlighted by biblical scholar Christine Hayes. After Moses shatters the original tablets, the biblical narrative declares that God restored the very same words onto new ones. Yet what follows is nothing of the sort. The text that appears in its place concerns itself not with universal moral principles but more with ritual aspects. Biblical scholars have termed this the Ritual Decalogue, and its existence alone complicates any confident claim about what the Ten Commandments definitively are.

Though the text is referred to as the Ten Commandments, Exodus 20 consists of thirteen to fourteen statements, which are numbered as ten, with the numbering varying across Jewish and Christian denominations. The content of the text also varies among these traditions. The King James Bible identifies the second commandment as prohibiting the worship of any “graven image,” a formulation from which Catholics have historically dissented. Historically, this difference was exploited to demean Catholic students in 19th-century schools across the United States.

The petitioners argued that Texas had selected a particular Protestant rendering, constituting denominational discrimination forbidden by the Establishment Clause. The Fifth Circuit dismissed this, reasoning that adjudicating the claim would require a theological judgment beyond its competence. But this response concedes the very point it seeks to avoid: the Court acknowledged the text is religiously contested, and then used that concession as a reason to do nothing. The constitutional question was never which tradition renders the text correctly. It was whether the state has any authority to render it at all. It does not. By selecting one version for mandatory classroom display, Texas has exercised precisely the theological judgment the Establishment Clause forbids. The Court's retreat into institutional modesty was not compelled by the difficulty of the question. It was a means of evading it.

The Court also invoked Van Orden v. Perry, reasoning that the displayed text matches a Ten Commandments monument previously upheld on Texas Capitol grounds. But that monument was privately donated, stood among seventeen monuments in a public park, and had gone unchallenged for four decades. It was not a state-mandated display imposed on a captive audience. The controlling precedent is Mccreary County v ACLU, where Ten Commandments displays in Kentucky courthouses and schools, unavoidably visible to ordinary visitors, were rightly held unconstitutional because their purpose was to favor one faith over others. That is plainly what Texas set out to achieve.

The implications extend well beyond Texas. Unless the Supreme Court corrects course, this ruling effectively licenses legislatures across the country to mandate religious texts in public school classrooms. In 2015, parents in Virginia were outraged when students were assigned to copy an Arabic calligraphy of the Islamic declaration of faith. That was a classroom exercise. Under the Fifth Circuit's reasoning, a state legislature could mandate that same text on every public school wall. That is the door this ruling has opened.

The Fifth Circuit's opinion effectively sanctions the state's authority to determine the content of religious texts for mandatory display in public classrooms. The Establishment Clause, it seems, offers no resistance. Constitutional Erastianism has arrived.

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

Balkinization Symposium on Stephen Skowronek, The Adaptability Paradox-- Collected Essays

2026-05-10T14:30:00.001-04:00

Here are the collected essays for our Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Emily Zackin, Too Much or Too Little Adaptation?

3. Sandy Levinson, “Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

4. Rogers M. Smith, The New American Adaptability Paradigm: Empire or Federation?

5. Noah A. Rosenblum, The Avoidant Constitution?

6. Andrea Scoseria Katz, Skowronek on American Democracy: Gridlock, Presidentialism, and Democratic Faith

7. Richard H. Pildes, The Era of Democratic Dissatisfaction

8. Jeremy Kessler, The Material Foundations of American Constitutional Development

9. Elizabeth Beaumont, Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

10. Elizabeth Beaumont, The Unbound Constitution Reconsidered: Skowronek’s Framework and History of Constitutional Reordering

11. Elizabeth Beaumont, Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

12. Nikolas Bowie, Who's Afraid of a Constitutional Convention

13. Stephen Skowronek, Has American Democracy Outstripped Its Constitutional Accommodations?-- Part One

14. Stephen Skowronek, Has American Democracy Outstripped Its Constitutional Accommodations?-- Part Two

A Miscarriage of Justice?

2026-05-07T08:14:00.000-04:00

Barbara Fried’s recent post on Substack, to my mind, lays out a devastating critique of the prosecution’s misappropriation theory of criminal liability in the trial of her son, Sam Bankman-Fried. If you think the evidence is open and shut that SBF stole client money, you should think again. Margin accounts like those offered by FTX are very different from traditional (spot) brokerage accounts at, say, Vanguard or Fidelity. As John Donohue and I emphasized in a comment we posted to SSRN:

The whole purpose of a margin exchange is to permit customers to finance a portion of their purchases on the exchange with assets borrowed from other customers. FTX’s terms of service authorized such loans with regard to its margin account customers who opted for FTX margin accounts. A substantial majority of the funds deposited on FTX came from customers who opted into the margin trading program. To do so, they had to agree to Section 16.4 of the terms of service, which governed margin traders. The provision clearly stated that:

“Under certain market conditions, it may become difficult or impossible to liquidate a position [and] there is no assurance or guarantee that any such program activities will be sufficient or effective in liquidating your position. As a result, you may lose all of your Assets or incur a negative balance in your Account. In addition, even if you have not suffered any liquidations or losses, your Account balance may be subject to clawback due to losses suffered by other Users.”

Donohue and I emphasized this provision because FTX didn’t misappropriate client funds if the margin account holders gave FTX permission to loan their funds to other clients, including Alameda. The final clawback provision is especially relevant because it warns margin clients that they may be subject to risk of loss due to losses suffered by other users, which only makes sense if the assets of margin users could be loaned to other account holders.

So what is the best interpretation of Section 16.4? John and I pointed out:

The terms of service were expressly governed by English law. But the judge refused to admit expert testimony about what was permissible under FTX's terms of service. A defendant's expert, Lawrence Akka, was prepared to testify that under UK law, the loans to Alameda—and the uses that Alameda made of the funds—were permissible. To quote Akka: “FTX was obliged to honour customer withdrawals (i.e. to repay the debt of fiat currency that it owed), but was not constrained to use fiat currency for any particular purpose in the interim.” This doesn’t rule out the possibility that FTX breached its civil duty to its margin customers by allowing for excessive lending to Alameda—albeit now satisfied by the full payments in bankruptcy—but it does refute the idea that any borrowing of customer funds was blatant theft under criminal law.

As Fried points out, the fact that the prosecution sought to bar admission of Section 16.4 of the Terms of Service in a pretrial motion might be taken to indicate that they, too, believed that interpretation was at least plausible.

Kaplan justified his ruling blocking Lawrence Akka from testifying about the meaning of the Terms of Service under UK law by stating that he (Kaplan) was competent to instruct the jury on foreign law himself. Fried’s Substack post details what happened next:

At the charge conference Kaplan announced he was going to instruct the jury [on the meaning of the Terms of Service] under US law instead. . . . His stated reason was that the defense had failed to introduce any evidence concerning UK law [!]

But then he gave the jury no instructions [under US or any other law] on the most important legal issue in determining whether the funds in question were misappropriated (stolen): whether the Terms of Service authorized the loans from FTX to Alameda. . . .

Instead, as Fried states, he “invit[ed the jury] to conclude that the terms of the contract were irrelevant because this ‘is a criminal wire fraud case. It is not a civil case for breach of contract.’” (Transcript, p. 3155) The fact that the crime was charged under a federal wire fraud statute has no relevance to whether an underlying crime was committed. It merely states the method of communication used in its alleged commission. The contract at issue here, on the other hand, has everything to do with whether a crime was committed. Contracts can authorize one party to use another party’s assets and thereby change what would otherwise be criminal conversion into a commonplace, perfectly lawful transaction. When I drive Avis’s car off the rental lot, I am not stealing it, because my contract with Avis authorizes me to do so. The jury’s instruction should have allowed the jury to conclude that the terms of service authorized FTX to lend the funds of margin account holders to Alameda. Indeed, the judge might have reached such a determination as a matter of law.

In seeking to justify his decision not to instruct the jury on the legal import of the express provisions of the terms of service, the judge dismissed them as an “idle communication.” (Transcript, 2853-54) Fried appropriately concludes:

In a single sentence, Kaplan negated the legal relevance of contract terms, inviting the jury to supply the terms of a private contract from—what? general principles of law? customs of the trade? their own beliefs about what these parties ought to have agreed to?

There are still important questions about whether SBF might be criminally liable for representations that FTX and he made at various points in time. (In an earlier post, Fried questioned whether the alleged misrepresentations could plausibly support a criminal conviction, let alone a 25-year prison term.) But in my view, she lays out a devastatingly persuasive case that the prosecution should not have been allowed to argue to the jury, dozens of times during the trial, that the defendant stole billions of dollars of client funds – at least without much more careful attention to whether the terms of service allowed those funds to be lent.

Before ending, I should mention there are ad hominem reasons why you might discount the foregoing. As I have disclosed before, I am a friend and coauthor of both Barbara Fried and Joe Bankman, the parents of Sam Bankman-Fried.

Requiem

2026-05-04T13:39:00.000-04:00

After a strenuous bike ride in Patagonia last week, I summoned the energy to crank out the first draft of an opinion piece that was published just a couple of days later in the Yale Daily News. The piece raises several questions about the Committee on Trust in Higher Education’s recommendation to amend Yale’s mission statement. Turns out, it is a good thing I didn’t wait to speak on this issue, because as I was waiting to board my return flight to JFK, I learned that the University had already adopted the Committee-recommended mission statement.

As a procedural matter, the speed of adoption might be questioned. The President could have allowed a bit more time for community response. After my YDN piece appeared, I received a surprisingly large number of emails and texts from colleagues, students, and alumni thanking me for writing it. This outreach suggests to me that the President’s swift action foreclosed spirited and productive discussion that could otherwise have taken place. It is now a fait accompli – especially with students and faculty dispersing for the summer.

Nonetheless, I write here to amplify two of the questions I raised initially.

What Knowledge?

With one large exception (which I will discuss below), I predict very little will change at Yale under the new mission statement. Still, it would have been helpful if the Committee report had gone a bit further in defining what types of knowledge are worthy to create, disseminate, and preserve. Notwithstanding the deemphasis on improving the world, Yale resources should continue to support scholarship that makes prescriptive arguments. Novel normative claims is knowledge worthy of University support.

[I am personally reluctant to teach “oughts” in my law classes. I focus more on what the law “is.” I try to present and challenge normative arguments of myself and others and let students decide what is best – sometimes papering over normative claims with expedient frames (“Efficiency-minded lawmakers would prefer …”). In contrast, my scholarship, like most legal scholarship, is awash with prescriptions and suggestions for legal reform, and is worthy of University support.]

And given that the central purpose of the Committee’s work was to restore public trust, it would have been useful for their report to clearly affirm that Yale supports the creation and dissemination of knowledge -- even if it reduces the public’s trust in us. The math department will not be teaching the President’s new approach to calculating percentage reductions (also adopted by the Secretary of Health and Human Services) even if going along with the White House might have increased public trust.

What Change?

As I said in my original piece, mission statements can inspire, but they can also meaningfully constrain how an institution deploys its resources. One might reasonably ask the President how, if the old mission statement was misguided, University resources have been misdeployed in the past, and how the new mission statement is likely to change projects and initiatives going forward.

I predict very little will change. We will not shutter or diminish the schools’ programs in ethics or leadership – notwithstanding those subjects’ deemphasis in the amended statement. Likewise, I hope we will not shackle the good work of various clinical programs that teach students by applying their talents toward improving the world.

The one substantial change that has been taking place – both at Yale and at peer institutions– is the dismantling or rebranding of all University programs related to diversity, equity, or inclusion. The Office of Diversity & Inclusion is now the office for “Employee Engagement & Workplace Culture.” The Buckley Institute reports that, across the University, Yale has “changed the names of 9 DEI-related offices.” The current administration has overseen what one might characterize as a 1000% reduction in the number of employees with the word inclusion in their title.

It would be unfair to call Maurie McInnis the Neville Chamberlain of university presidents. But a central purpose of the new mission statement seems to be a further scrubbing the term inclusion from the University’s website. Indeed, putting this word to bed may be the only concrete consequence spurred by the changed mission. A reasonable person might accordingly view the new mission statement not as an effort to enhance public trust, but as a further form of pro-active appeasement.

The DOL's 401(k) Rule Gets the Goals Right but the Guardrails Wrong

2026-05-01T12:33:00.003-04:00

By Ian Ayres and Quinn Curtis

The Department of Labor’s new proposed changes to 401(k) plan regulations, framed by the Trump administration as democratizing retirement investment options for everyday Americans, instead reads as though its primary aim is to benefit the financial advisory industry.

Last August, President Trump signed an executive order calling on the Department of Labor to make it easier for employers to offer alternative investments – private equity, hedge funds, real estate, and the like – in the 401(k) plans that more than 90 million Americans rely on for retirement. Last week, the DOL responded with a proposed rule, which it frames as a "safe harbor" checklist of steps that, if followed, would shield employers from liability when they add these options to their plans. Responsibly broadening access to alternative assets can usefully improve portfolio diversification. But the proposed rule is too deferential to employers who retain professional advisers and fails to include two protections that would make this expansion work: guardrail caps and participant monitoring.

The rule's core framework is sound. It begins, as it should, by requiring plan fiduciaries, the employers and committees responsible for managing workers' retirement options, to evaluate investments based on risk-adjusted returns, net of fees. But that sensible starting point is undermined by a safe harbor so permissive that it offers little practical constraint.

16 of the rule's 20 illustrative examples conclude that no fiduciary violation occurred. Among the 16, those addressing fees are particularly permissive. One example blesses paying annual fees that are a quarter of a percent higher for a fund offering "knowledgeably staffed call centers" and "short wait times." But Empower, one of the nation's largest retirement plan administrators, reports that only 10 to 26 percent of plan participants ever make a service or advisory call in a given year. A rule that lets employers justify fees based on services that the vast majority of participants never use is not adequately protecting those participants.

Another example approves adding hedge funds and private equity to a target-date fund – the most common default into which workers are automatically enrolled – with any resulting fee increase justified only by a professional adviser’s forward-looking return projections. Still another permits fund managers to bundle the complex, variable fee structures unique to alternative assets into a single flat charge, absolving the employer of any need to understand the underlying cost structure.

An explanation for this permissiveness is not hard to find. One gets the sense the rules were drafted by and for the benefit of professional plan advisors. These advisors are referenced nearly 50 times in the proposed rule. Every example that clears the employer features a fiduciary who hired a professional adviser, while two of the four violation examples explicitly flag the absence of an adviser as part of the failure narrative. The advisory industry has basically drafted a mechanism to guarantee their employment.

The proposed rule should drop many of the illustrative examples that unreasonably immunize imprudent plan menus. The rule also needs, and lacks, are investment guardrails.

First, alternative asset classes – which, unlike the traditional stocks or bonds, can be difficult to sell quickly if needed – should have percentage caps limiting how much of a worker's savings can flow into any single alternative investment. Many plans already limit company stock contributions, and roughly two-thirds of such plans cap contributions at 20 percent.

When ForUsAll, a 401(k) provider, launched a digital-currency investment option in 2021, it wisely limited contributions to 5 percent of a worker's account. These caps protect individuals prone to irrational decisions without constraining those making informed, deliberate ones. We would suggest a 10 percent cap on any single alternative asset class – though even a 20 percent cap, matching the existing norm for company stock, would be far better than the current proposal, which places no limit at all on how much a participant can concentrate in a single hedge fund or cryptocurrency.

Second, employers should be required to monitor whether workers are misusing their plans’ investment menus. The advisers who administer plans typically do not give employers any information on how individual workers are allocating their savings. Employers receive reams of data about fund returns and comparisons to benchmarks, but are never told whether participants are creating undiversified or excessively expensive portfolios. The proposed rule's six safe-harbor factors – performance, fees, liquidity, valuation, benchmarks, and complexity – are entirely about the characteristics of the offered investment products. None address whether workers actually use those options wisely.

Making matters worse, the rule explicitly excludes "brokerage windows" – a feature that lets participants invest in virtually any security on the open market, outside the plan's curated menu – from the safe harbor's requirements. That means the avenue through which workers already have the most freedom to make risky, undiversified bets will face no new scrutiny at all.

The Trump administration deserves credit for seeking to open 401(k) plans to a broader set of investment options. Allowing workers to gain exposure to private equity and other alternatives can genuinely improve diversification and reduce risk. But workers should not be able to use their 401(k) accounts to essentially gamble their tax-subsidized retirement savings on a speculative bet while professional advisers profit. The proposed safe harbor framework is so spacious that too many fiduciary failures would fit inside.

Ten Commandments webinar

2026-04-22T16:02:00.000-04:00

This Friday, my friend Stephanie Barclay and I will struggle mightily to find something to disagree about as we discuss the Fifth Circuit's Ten Commandments decision in a Federalist Society webinar.