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Congressional Staff Work on Transition Matters

At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition. Tweet

How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a [...]

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal [...]

Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange

Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or [...]

The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others

Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either. [...]

A Christmas Present for Congress: the Congressional Clerkship Program

On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program: In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating.  On Monday, with the introduction of the Daniel Webster [...]

The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson [...]

Things to do in Dirksen when You’re Dead

If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years [...]

Would a Court Hear a Challenge to Congress’s Article V Convention Call?

Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is [...]

Still More on Article V Justiciability: Idaho v. Freeman

The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it [...]