03 July 2025
The Constitution’s Midnight
Resolving some legal issues requires drawing a line through a gray area. Others can be resolved without having to draw a line, in recognition of an old insight: that there is a dawn and a dusk does not mean there is no noon or no midnight. Whether the President had power under the Constitution to attack Iran without congressional approval is an issue that falls in the latter category, within the Constitution’s midnight: wherever a line might be drawn in harder cases, this is not one of them. Continue reading >>
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27 September 2023
Wartime Elections as Democratic Backsliding
The topic of the next elections to the Verkhovna Rada (Parliament) of Ukraine unexpectedly surfaced in public discourse towards the end of spring this year. Julia Kyrychenko and Olha Ivasiuk’s recent article on Verfassungsblog outlines major legal and practical obstacles to holding wartime elections in Ukraine. In their illuminating analysis, the authors make a strong case against wartime elections, a viewpoint largely shared by civil society. My argument is a bit different. I will argue that (1) wartime parliamentary elections are expressis verbis inconsistent with the Ukrainian Constitution, and (2) wartime elections would undermine the legitimacy of democratic institutions and potentially lead to democratic backsliding. Continue reading >>
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25 September 2023
No Voting Under Fire
Can Ukraine hold elections while it is in the midst of a full-scale invasion by Russia? This question has recently received international attention, including comments from US Senator Lindsey Graham advocating for elections during the war. However, holding elections during the current state of war faces not only factual but also legal obstacles. Genuine democratic elections cannot be conducted under fire from Russian troops. Continue reading >>
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