Scholars, judges, and policymakers have observed that American constitutional democracy depends on far more than the constraints imposed by judicially-interpreted formal legal arrangements. Drawing on judicial doctrine, political science, and the history of American institutions since the end of World War II, this article explores what it means to take seriously a more expansive, less court...
The Constitution of Our Tribal Republic
Long before there was a U.S. Constitution for the American republic, there were treaties among Indian Nations and between Indian Nations and colonial governments reflecting ideals of consultation and negotiation among self-determining peoples. Using negotiations between the United States and the states a point of comparison, this article works through what it might mean to think about...
Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design
The article contemplates how constitutional designers should address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government.
Accountability in the Deep State
The story behind the resignation of Joel Clement—the head of the U.S. Interior Department’s Office of Policy Analysis—provides a window into the relationship between the political leadership and the civil service at the Interior Department in the first year of the Trump administration. It also serves as a jumping-off point to revisit the value in having a civil service with some independence from...
(Re)Constructing Democracy in Crisis
This article complements academic discourse about democratic backsliding by focusing on two questions: In what ways has democracy been chronically or systemically weakened and prevented, and what kinds of new institutional and organizational forms do we need to realize democratic aspirations in the twenty-first century.
America's Conscience: The Rise of Civil Society Groups Under President Trump
The article explores the role and transformation of civil society groups under the presidency of Donald Trump. It observes such groups face the risk of overlooking injustices that do not involve President Trump, the urge to sharpen tactics against the administration’s lawyers, and the temptation to forget that the country will be better off when, once more, the work of civil society groups is not...
A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers
The article explores the approach to administrative law in a period when the executive systematically disregards the expectation of rational, good-faith decision-making and seeks single-mindedly to maximize achievement of its policy objectives.
California, Climate, and Dormant Foreign Affairs Preemption (Again)
After President Trump withdrew the United States from the Paris Climate Accord, California announced its continued commitment to the cause by entering into agreements to control global temperature increases with other subnational governments from around the world. This comment analyzes possible dormant foreign affairs preemption challenges posed by such agreements.