After Congress denied him most of the funding he requested for a border wall last week, President Trump declared a national emergency, thereby invoking power to shift funds that were originally appropriated for other purposes. To state the obvious, no emergency exists. Illegal border crossings are down, and while there has been a recent increase in the number of Central Americans seeking refuge from violence in their home countries, those migrants seek to enter the US at recognized border crossings; a wall would do nothing to address that problem. Meanwhile, even if a border wall we ..read more

Venezuela has suffered through two decades of incompetent, corrupt, and authoritarian socialist rule, first under Hugo Chávez and, since 2013, under Nicolás Maduro. Seeking to restore democracy and prosperity, two weeks ago Juan Guaidó, the president of the Venezuelan National Assembly, declared himself the country’s acting president pending new elections. Guaidó argues that Maduro’s victory in a rigged and illegitimate election left the presidency vacant and that under such circumstances the constitution vests power in the National Assembly’s leader. The US and some of the world’s ..read more

Until late last week, the Supreme Court was preparing to hear oral argument in a case presenting the question whether Federal District Judge Jesse Furman erred by ordering discovery outside of the administrative record to discern the motives behind the Trump administration’s decision to add a question concerning citizenship to the 2020 census. In an unusual move, the Court had agreed to hear the discovery dispute last November—before Judge Furman had completed his consideration of the merits. In the interim, he conducted a trial. Last week, Judge Furman issued a 277-page opinion set ..read more

A recent New York Times article disclosed details of Facebook’s global effort to block hate speech and other ostensibly offensive content. As the article explains, Facebook has good reason to worry that some people use its platform not just to offend but to undermine democracies and even to incite deadly violence. Yet Facebook’s response seems curious, even perverse. Presumably well-meaning young engineers and lawyers gather every other week to update thousands of PowerPoint presentations, rules, and guidelines for its roughly 15,000 relatively low-skilled “moderators” to apply formul ..read more

In the wake of a Supreme Court ruling in a Michigan land dispute earlier this year, I explained in a column for this site that the non-ideological divisions between the justices on display in the case reflected disagreement on a deep question about the very nature of law: How general must a legislative command be to count as a law? I asked: “How many cases must a law target to count as general?  Two? Three? Ten? What if a law targets only one case, but that case is a class action involving many class members?” Despite the fundamentality of these questions, opinions by US courts p ..read more

If President Trump were to pardon Paul Manafort or other people who have been or may be indicted by Special Counsel Robert Mueller, prosecutors in New York or another state might respond by seeking indictments under state law. Would such a state prosecution be barred by the Constitution’s Double Jeopardy Clause? No, because there has long been a “separate sovereigns” exception to double jeopardy. Under that exception, a trial in federal court does not preclude a subsequent trial in state court for the same underlying conduct, nor vice-versa. But what if the Supreme Court eliminates ..read more

The Department of Education (typically abbreviated as ED) recently issued a notice of proposed rulemaking regarding Title IX, the federal statute that forbids educational institutions receiving federal money from discriminating on the basis of sex. The proposed new rules would make it more difficult for colleges and universities to hold accountable those students who sexually assault or harass their fellow students. Whether the proposed new rules strike the ideal balance between the interests of victims and the interests of people who may be wrongly or mistakenly accused of sexual h ..read more

One week ago, US Attorney General Jeff Sessions resigned at the “request” of President Donald Trump, who wasted no time in designating Matthew Whitaker as Acting Attorney General, pending the nomination and Senate confirmation of a full-time replacement. Although hardly Edward Levi (President Gerald Ford’s extremely distinguished AG), Whitaker does not completely lack professional qualifications. He served for over five years as a US Attorney in Iowa and, until last week, was the Chief of Staff to Sessions. However, Whitaker’s chief qualification for the position to which Trump name ..read more

Last week, retired Supreme Court Justice Sandra Day O’Connor announced that, facing the prospect of advancing dementia, she was withdrawing from public life. Justice O’Connor will rightly be remembered as a pioneer. As the first—and for well over a decade, the only—woman on the Supreme Court, she transformed the institution. For most of her nearly quarter century on the Court, she was, on many important issues, the most powerful person in the country, as she defined the Court’s center, while the Court defined the bounds of law. Unsurprisingly, the exercise of so much power did not p ..read more

Last week, USA Today published an op-ed by Donald Trump in which the president attacked Democratic proposals to create a system of Medicare for All. Despite using complete sentences and correct spelling, the essay was recognizably Trumpian: it stoked fears in his disproportionately elderly supporters through tendentious assumptions and outright lies. As Glenn Kessler observed in the Washington Post, “almost every sentence contained a misleading statement or a falsehood.” One of the biggest whoppers was Trump’s claim that he has kept his campaign promise to “protect coverage for pati ..read more