To Be Absolutely Frank

Boehner’s Lawsuit Against Obama Is Just a Feint

By 6.27.14

So what’s with John Boehner’s newfound love of litigation? The speaker announced yesterday that he will ask the House to initiate a lawsuit against the president over his refusal to enforce the laws Congress has passed. That’s something the Wall Street Journal and George Will have both suggested, and it’s not a crazy idea.

First, the House likely has standing to bring an action. In 1990 a federal court held that a group of congressmen could not bring an action over George H.W. Bush’s failure to comply with the 1974 War Powers Resolution, but left open whether the House as a whole had standing. More recently, the House litigated the Defense of Marriage Act after the Obama administration declined to defend — and it would almost certainly have standing to litigate the president’s right to disregard litigation.

Another Perspective

Call a Constitutional Convention, Already!

By 3.14.14

We've talked endlessly about using a Constitutional convention to wrest the reins of government from entrenched interests and put them back in the hands of the people. Enough talk: It's time to put the theory into action.

To recap, the Constitution may be amended in two ways: by a two-thirds vote of Congress, or by a convention called by two-thirds (34) of the (50) state legislatures. All amendments to date have arisen through the first mechanism, although conservatives and libertarians increasingly are calling for state lawmakers to pursue the second. If 34 states pass convention measures, Congress must convene a convention to discuss amending the constitution. In the words of James Madison, who was instrumental to the drafting of Article V, "If two thirds of the States make application, Congress cannot refuse to call one." Even the centralizer Alexander Hamilton conceded that the wording of Article V leaves " the discretion of Congress."

Constitutional Opinions

Conventional Thinking

By From the November 2013 issue

POLITICS 'HAVE REACHED civil war levels’…” was the headline on the Drudge Report the other day. It linked to a story in National Journal quoting Sen. Tom Harkin as saying, “We are at one of the most dangerous points in our history.” It quoted Sen. Ted Cruz likening the Republican moderates to the appeasers at Munich. Another article quoted an aide to President Obama as comparing Republicans to “terrorists, kidnappers, arsonists…” Yet another quoted the Senate’s chaplain as saying “Lord, deliver us from governing by crisis.”

Brief Thoughts on Constitutional Law

By on 2.23.11 | 11:19AM

Upholding ObamaCare requires a federal judge to find enormous elasticity in the Commerce Clause:

Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act. ...
Judge Kessler added: “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something.”

As Cornell Law Professor William Jacobson observes, Judge Kessler's ruling theorized whether "mental activity, i.e. decision-making" might be governed by the Commerce Clause.

A Further Perspective

Washington Emolument

By 12.9.09

Tomorrow a foreign government is slipping a big check to the President of the United States -- and he's not even in it for the money.

The Nation's Pulse

High Stakes

By 11.20.09

Government has been moving into people's lives for a very long time -- but never quite like this.