PrawfsBlawg

I’ve got five public events scheduled in the next few months.

On Thursday at 430PM (unless my flight is again cancelled), I will speak at my law school on The Actual Art of Governing. With tariff commentary!

Next, I’ll be part of a Federalist Society event in Columbus, OH on April 17th about Ohio’s contributions to the Constitution. (I’ll be talking about Bingham). There’s no writeup for that event yet.

Third, I’ll be speaking on The Actual Art of Governing at the Concord, MA Museum on April 28th at 7PM.

Fourth, I’ll be talking about the book at the Federalist Society Chapter in Evansville, IN on May 6th at lunchtime.

Finally, I will be talking about the book at the Robert H. Jackson Center in Jamestown, NY on May 20th

Hope to see some of you there.

My view is that the major questions doctrine is an expansion of Justice Jackson’s conclusion in Youngstown. Here is what he said near the end:

“I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.”

The tariff opinion marks the Court’s first use of the Youngstown‘s concurrence’s Article II analysis to construe a statute. The Court cited the concurrence for the proposition that emergency laws or alleged emergencies are not exempt from the major questions doctrine. But Justice Jackson’s emergency discussion was about Article II, not a purported congressional authorization. Nevertheless, the Court’s use of MQD is consistent with the spirit of his analysis.

Note that the MQD can be about presidential power only if the unitary executive theory is embraced. Limiting independent agencies through that doctrine does not limit the President. But soon the Fed will be the only independent agency.

I’m looking into how the Court has cited the Declaration of Independence for normative purposes. Couple of initial observations:

First, the Declaration contains explicit references to God. As a result, the Declaration is sometimes cited in Establishment Clause cases to reject a strict secular reading of the Constitution (which makes no such references).

Second, the Declaration states as a principle (in criticism of the King) the civil power should be superior to the military power. The Court invoked this in Ex Parte Milligan. The Constitution makes no such statement, though the Third Amendment and the Commander-in-Chief Clause certainly imply this idea.

Third, Justice Jackson cites the Declaration in the Youngstown concurrence as a way of reading Article II more narrowly. I think this is the only example of this usage, though I’m not sure.

Finally, there are obviously many equality and unwritten rights cites to the Declaration. (Dred Scott famously asserted that the Declaration should not be taken literally on that score.)

Anyway, there may be more to say as I go through the cases.

Florida State Law Review has published its Symposium Remembering Dan Markel. This arises from a summer 2024 in-person festschrift that Ethan, Carissa, and Jack Chin organized.

My contribution, co-authored with Michael McCann, revisits Dan’s final published piece on fans contributing to athletes and sports teams, which predicted the current world of fan collectives.

One notable feature of the Chief Justice’s tariff opinion (albeit in a portion speaking for only a plurality) was that Dames & Moore v Regan was “exceedingly narrow.” This was not how I was taught the case thirty years ago. Then it looked like a significant decision upholding a unilateral exercise of executive power.

The Chief’s characterization of Dames & Moore is especially interesting because he was a law clerk to Justice Rehnquist when Rehnquist wrote that opinion. Is the Chief just restating his view of the case from 1981? Or did he arrive at that view only now?

Today’s opinion says nothing about refunds. But your intrepid blogger actually has a specific receipt for a tariff that I had to pay a few months ago on a gift. I will leave no stone unturned to get my $75 back! How will I do that? Will I get anything before I turn 70? Tune in over time for updates on this exciting saga.

Oh, the opinions. I’ll have more to say about them next week.

The new Courts Law essay comes from Marin Levy (Duke) reviewing Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge 2025), which explores the role of foreign (especially admiralty and maritime) disputes in the early federal courts.

“It was a principle of the revolution, and the practical construction of the Declaration of Independence, that necessity or expediency justified the refusal of liberty, in certain circumstances, to persons of a particular color; and that those to whom their services and labor were due, were their owners.”

Groves v. Slaughter (from 1841) (Baldwin, J., concurring) (internal quotation marks omitted) 

I have a problem. Everyone wants a talk this year on the Declaration of Independence. But I’m no Carlton Larson with a new book coming out on that. In fact, I’ve never written anything on Declaration. Alas.

Here’s one unusual take on the Declaration. When Winston Churchill gave his famous “Iron Curtain” speech in 1946, he said that the principles of “the English common law find their most famous expression in the American Declaration of Independence.” Comparing the common law to the Declaration may seem odd. After all, one is revolutionary and the other is definitely not.

On the other hand, we understand the Declaration as open-ended and evolving in manner not unlike the common law. And there is what might be called a common-law progression from the Declaration to the Gettysburg Address and to the “I Have a Dream” speech. None of these statements are law, but they are often treated as legal authorities.

Is there more to this idea or comparison? I’m not yet sure.

At the risk of introducing crass partisanship into the mix, I think the answer to Gerard’s question must account for the political alignment of the non-plurality president and the political alignments and/or incentives of the media ecosystem.

George Bush and Donald Trump did not govern as non-plurality presidents. Each governed as if he had won the popular (and not merely the EC) votes. Right-wing media (in its relative infancy in 2000, but a strong presence) support that framing. And the national political press went along for the ride. Everyone proceeded as if the non-plurality president had an overwhelming mandate to do what he wanted. Not that either Bush or Trump succeeded in everything he wanted to do. The point is that no one said he could not or should not do something because he failed to win the popular vote.

Had the non-plurality presidents been Democrats, the media and the Republican opposition would not have allowed that framing. In fact, Republicans and conservative media spent eight years questioning Bill Clinton’s legitimacy or power to govern with two plurality victories and (for modern times) EC landslides.

When Congress considered abolishing the Electoral College in 1969, serious concerns were expressed about the possibility that the popular vote loser could become President. Many thought this would cause a serious legitimacy crisis. Of course, that did not happen after the 2000 and 2016 presidential elections. In part, that’s because the losers conceded. But what else explains that silence?

There are at least three factors. First, in 1969 the presidential nominating process was not particularly democratic. Party bosses still wielded great power. Second, people under 21 generally could not vote. Third, there was significant political violence in 1968. All of this could easily lead people to conclude that a non-plurality President would be one step too many for Americans to accept.

With reforms and cultural changes, those concerns were much reduced by 2000. And the 2000 precedent eased the way for 2016. People might feel differently if and when this happens again, but I doubt it.