13 June 2025
The Nondelegation Case Against Trump’s New Travel Ban
Despite the enormous harm likely to be caused by Trump's new travel ban, many assume there is no effective way to challenge it in court. The Supreme Court's ruling in Trump v. Hawaii (2018) – addressing Trump’s first-term “Muslim ban” – probably precludes challenges based on discriminatory intent. Nonetheless, there is an alternative path to striking down the new travel ban: the nondelegation doctrine. That path remains open because Trump v. Hawaii did not consider nondelegation issues; indeed, the word “nondelegation” is not even mentioned in any of the five majority, concurring, and dissenting opinions. Continue reading >>
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12 June 2025
Power, Profit, and Washington’s Paradox
The Trump administration has been accused of corruptly placing private financial benefit above the public interest, most recently in President Trump’s acceptance of the gift of a Boeing 747 from Qatar for his use as Air Force 1, and invitations to dinner at a private club and to a private White House tour, offered as perks for those who invested substantial sums in his Stablecoin. Although, here, the President’s self-enrichment is blatant, more troubling are his policies aimed at dismantling safeguards against corruption at home and abroad. These reveal a deep contradiction in the warring goals of those currently governing in Washington; a contradiction that may eventually burst into the open. Continue reading >>
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07 June 2025
U.S. Sanctions on the International Criminal Court
Since the negotiation of the Rome Statute, U.S. relations with the Court have zig-zagged between quiet support and open hostility. With President Trump’s return to office, we are back to confrontation. On June 5, Secretary of State Marco Rubio made sanction designations of four ICC judges – two of whom authorized the investigation into Afghanistan and two of whom approved the Netanyahu and Gallant arrest warrants. This post describes these developments and situates them within the broader context of U.S.-ICC relations. Continue reading >>
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03 June 2025
Trump’s Threat to Nonprofits
The administration of President Trump is threatening nonprofits with the loss of tax-exempt status in an attempt to force them to conform their activities to policies favored by that administration. The threats are based on shaky legal grounds, and nonprofits have both constitutional and statutory bases for countering them. Nevertheless, these threats are significant, especially when combined with the administration’s efforts to cut government funding for many programs operated by nonprofits. And at the same time, the U.S. Congress is considering reducing the benefits of tax-exempt status in many ways, primarily to help pay for tax cuts benefitting wealthy individuals and corporations. Continue reading >>
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28 May 2025
A Blow to Our Constitutional System
A little-noticed Supreme Court order may pave the way for a dramatic expansion of presidential authority—overturning a 90-year-old precedent and weakening the independence of key regulatory agencies. In the hands of a would-be autocrat, the Supreme Court decision has delivered a serious blow to the constitutional system. Continue reading >>
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16 May 2025
Whom Is Citizenship For?
On Thursday, May 15, the US Supreme Court heard oral arguments in “the birthright citizenship case.” Instead of deciding on the constitutionality of President Trump’s executive order (EO) banning birthright citizenship for certain classes of individuals, the Court is asked to decide whether lower courts exceeded their authority in placing a nation-wide injunction on the government’s order. But this doesn't make the decision any less significant. Continue reading >>
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16 May 2025
Undoing the American Rechtsstaat
Donald Trump’s return to the forefront of U.S. politics brings an urgent constitutional question back into focus: Can the American administrative state survive another presidency driven by executive absolutism? Recent developments before the Supreme Court, especially in Trump v. U. S., suggest that long-standing norms and legal safeguards are under siege. This post explores how a second Trump term might exploit structural vulnerabilities in U.S. public law, with consequences that extend far beyond American borders. Continue reading >>
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06 May 2025
Trump 2.0 as ‘Dual State’?
Donald Trump’s radicalized efforts to transform US constitutional democracy into personalized executive-centered rule have again generated a predictable avalanche of invocations of Carl Schmitt. Less predictably, recent political commentators have turned to one of Schmitt’s contemporary critics, the mid-century socialist jurist and political scientist, Ernst Fraenkel, claiming that his account of the Nazi “dual state,” in which rule-based normative and discretionary prerogative legal spheres uneasily coexisted, provides a useful template for making sense of Trump 2.0’s highly selective rendition of legal fidelity. Continue reading >>30 April 2025
Harvard Under Attack
Since Donald Trump took office as the 47th President of the United States of America, hardly a week has gone by without academic institutions coming under attack. The U.S. government is now claiming that Harvard - and other universities - are violating Title VI of the Civil Rights Act by serving as “breeding grounds for anti-Semitism”. This raises numerous constitutional questions. Continue reading >>
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30 April 2025