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Constitutional Law

Constitutional Law Prof Blog

News, analysis, and commentary on constitutional law issues in the courts, the administration, Congress, and the states; and commentary and analysis on constitutional law scholarship.
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith

Post Frequency: 3.1/day

Last Entry: November 04, 2020 at 10:04:25

The constitutionality of the Lieberman Amendment to ?repeal? the "don?t ask, don?t tell" military policy

Posted on May 25, 2010
In what is being described as a compromise, Senator Lieberman of Connecticut and Representative Patrick Murphy of Pennsylvania are introducing language to repeal the military?s don?t ask, don?t tell policy - - - which is codified by Congressional statute at...

Obama's "Line Item Veto"

Posted on May 25, 2010
The White House today sent legislation to the Hill that would allow the President to "rescind" objectionable spending items, sending a rescission bill back to Congress for fast-track consideration. The proposed legislation, the Reduce Unnecessary Spending Act of 2010, establishes...

Court Declines to Address Private Prosecution

Posted on May 24, 2010
A sharply divided Supreme Court today dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted. The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor...

Who's Activist Now?: the Roberts Court in History PANEL DISCUSSION

Posted on May 23, 2010
The organizers describe the event, entitled Who's Activist Now?: The Roberts Court in History, thusly: For a generation or more, conservatives have condemned liberal judges as ?activists??dedicated to an ideological agenda, dismissive of precedent and the provisions of the Constitution,...

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D.C. Circuit Denies Habeas to Bagram Detainees

Posted on May 22, 2010
A three-judge panel of the D.C. Circuit ruled on Friday in Al Maqaleh v. Gates that habeas does not extend to detainees at Bagram Airfield in Afghanistan. The panel overturned a decision over a year ago by Judge Bates of...

Heightened Plausibility Pleading Under Twombly, Iqbal

Posted on May 21, 2010
The Center for Progressive Reform recently released a white paper titled Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants. The paper argues that the Supreme Court erred in heightening the pleading standard in Bell Atlantic v. Twombly and Ashcroft...

Rand Paul and Federal Civil Rights

Posted on May 21, 2010
Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964. (In this clip from the Rachel Maddow show, Paul...

Colloquium Reminder: How Democratic is the Constitution?

Posted on May 20, 2010
Loyola University (Chicago) School of Law is organizing a constitutional law colloquium titled How Democratic is the Constitution? on Friday and Saturday, November 5 and 6, 2010, at the Philip H. Corboy Law Center in Chicago. Organizers Professors Alexander Tsesis...

Summer Reading: Kagan's Senior Thesis or a Novel?

Posted on May 19, 2010
In a movie review for his elementary newspaper, The Beaverboard, the twelve year old future-Judge Cooney assessed the classic film To Kill a Mockingbird with these fateful words: "Though the picture is overall OK, it's also kind of boring in...

The Mighty Sweeping Clause and Expansive Federal Power

Posted on May 18, 2010
The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock, upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government. The case has important...

Government Defends Individual Health Insurance Mandate

Posted on May 17, 2010
The Justice Department last week filed its first defense of the new health insurance mandate in federal court. The government responded to the plaintiffs' motion for a preliminary injunction in Thomas More Law Center, et al. v. Obama in the...

New Jersey Governor Chris Christie Rebuffs Criticisms Regarding the NJ Supreme Court

Posted on May 17, 2010
Governor Christie's non-"reappointment" of John Wallace, the only African-American of the seven state justices on the New Jersey Supreme Court, which we discussed here, continues to draw attention. Retired NJ Justices Robert L. Clifford, James H. Coleman, Jr...

Necessary and Proper to Extend Civil Committment for Sex Offenders: Comstock Opinion Analysis

Posted on May 17, 2010
In a 7-2 opinion, the Court this morning decided United States v. Comstock, argued in January (our discussion here). The Court reversed the Fourth Circuit and upheld the constitutionality of a Congressional statute, 18 U. S. C. � 4248, allowing...

The Legality of Targeted Killings

Posted on May 14, 2010
It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States. The New York Times reports...

Indiana Supreme Court Takes Up Civil Right to Counsel

Posted on May 13, 2010
The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights. (The mother was represented at trial, but the appellate...

Where's the birth certificate? Hawai'i amends Freedom of Information Act

Posted on May 13, 2010
President Obama's birth certificate is of great interest to some who contend he was not born in the United States, thus making him ineligible to be the President. (Article II section I of the US Constitution provides,"No Person except a...

Ninth Circuit Weighs In on Citizens United

Posted on May 12, 2010
A three-judge panel of the Ninth Circuit last week issued the second circuit court ruling on campaign expenditures and contributions in the wake of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign...

Arizona "Ethnic Studies" Law: HB 2281

Posted on May 12, 2010
Arizona, the home of the Immigration law, Senate Bill 1070 which we most recently discussed here, is now also home to an "ethnic studies" law, House Bill 2281, which Governor Jan Brewer (pictured below) has signed. The law prohibits any...

Government Urges Judicial Restraint in Rendition Case

Posted on May 12, 2010
The Obama Administration filed a brief urging the Supreme Court to reject a petition to hear Maher Arar's case seeking damages for alleged extraordinary rendition and torture. Thanks to Lyle Denniston at SCOTUSblog for the link to the brief. We...

Fish on Strauss's Living Constitution

Posted on May 11, 2010
Stanley Fish reviewed David A. Strauss's new book, The Living Constitution, in today's on-line New York Times. Fish takes on Strauss's thesis that "the text of the Constitution will play, at most, a ceremonial role" in constitutional law and that...

The Specter of a Lesbian Supreme Court Justice?

Posted on May 11, 2010
"Have I ever lived an alternative lifestyle? The answer is no." That is not Elena Kagan, in some real or imagined dialogue. That was Donna Shalala in 1992, Clinton's Secretary of Health and Human Services. Janet Reno, Clinton's third and...

Elena Kagan Nominated to United States Supreme Court

Posted on May 10, 2010
President Obama announces the nomination this morning: Whitehouse Press Release here. RR

President Obama to Seek Line Item Veto

Posted on May 08, 2010
President Obama will propose legislation this month to give him greater power to curtail congressional spending bills, according to Friday's New York Times. The measure would reportedly give the President 45 days after signing a spending bill to submit back...

New Jersey Court Rules Gov. Christie's EO Invalid

Posted on May 08, 2010
The New Jersey intermediate appellate court ruled on Friday that Governor Chris Christie's executive order including labor unions in the state's anti-pay-to-play law infringed upon the legislature's core law-making authority in violation of state constitutional separation-of-powers...

ACS 2010 Convention

Posted on May 07, 2010
The American Constitution Society opened registration for its 2010 National Convention at the Renaissance Mayflower Hotel in Washington, D.C., from June 17 to June 19. Featured speakers include Senator Al Franken, Rep. Linda Sanchez, and Newark Mayor Cory Booker...

In Memoriam: Rhonda Copelon

Posted on May 07, 2010
ConLawProf, constitutional law litigator, and Vice-President of the Center for Constitutional Rights, Rhonda Copelon (pictured below) died yesterday, May 6, 2010. She argued Harris v. McRae, was a founding member of CUNY School of Law, and in recent years concentrated...

Constitutionality of National Day of Prayer

Posted on May 06, 2010
Today, May 6 is the national day of prayer by Presidential Proclamation: by virtue of the authority vested in me by the Constitution and laws of the United States of America, do hereby proclaim May 6, 2010, as a National...

"Four Dead in Ohio": Congressional Resolution on Kent State

Posted on May 05, 2010
House Resolution 1272 "Commemorating the 40th anniversary of the May 4, 1970, Kent State University shootings," text below, was adopted today by a vote of 413-0. Two members voted "present" because of the wording resolution according to Politico. RESOLUTION Commemorating...

Justice O'Connor on Arizona Immigration Law SB 1070

Posted on May 04, 2010
Arizona may have gone a little too far. Immigration is the province of the federal rather than state government. Racial profiling may be a problem. These are the sentiments of retired Justice Sandra Day O'Connor on Arizona Immigration Law SB...

New Jersey Supreme Court under Governor Chris Christie

Posted on May 03, 2010
A state constitutional conflict is brewing in New Jersey over Governor Chris Christie's non-"reappointment" of John Wallace, the only African-American of the seven state justices on the New jersey Supreme Court. Justice Wallace (pictured right) was appointed in 2003 and...

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