Justice Gorsuch: Overrule U.S. v. Kagama
Michael Ramsey
From Justice Gorsuch (joined by Justice Thomas), dissenting from denial of certiorari in Veneno v. United States: Petitioner asks us to grant review in this case to reconsider United States v. Kagama, 118 U. S. 375 (1886). Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the […]
Mark Moller: Incidental Jurisdiction
Michael Ramsey
Mark Moller (DePaul University College of Law) has posted Incidental Jurisdiction (14 Texas A&M Law Review __ (2026) (forthcoming)) (65 pages) on SSRN. Here is the abstract: Federal courts have incidental, or implied, powers. On this there is general agreement among originalist researchers. But there is also wide consensus that, whatever incidental powers Article III courts […]
Robert Natelson on Presidential Removals
Michael Ramsey
At Civitas Outlook, Robert G. Natelson (Independence Institute): Restoring the Constitution’s Presidency: Modifying Myers and Overruling Humphrey’s. From the introduction: President Donald Trump seeks to assert political control over the administrative state by removing and replacing members of purportedly independent commissions. His supporters claim he is reasserting the constitutional prerogatives of the presidency; his critics […]
Christine Kexel Chabot: The Interstitial Executive (with Comments)
Michael Ramsey
Christine Kexel Chabot (Marquette University Law School) has posted The Interstitial Executive: A View from the Founding (41 pages) on SSRN. Here is the abstract: The Supreme Court appears poised to recognize a unitary executive President with power to override statutory removal restrictions for almost all principal officers in the executive branch. The core unitary […]
Josh Blackman on Judge Bumatay on Lower Court Originalism
Michael Ramsey
Yesterday was the beginning of the Federalist Society’s National Lawyers Convention; San Diego-based Judge Patrick Bumatay gave opening remarks. At Volokh Conspiracy, Josh Blackman has excerpts and comments: Judge Bumatay on Originalism, Stare Decisis, and the Party Presentation Rule. From the beginning: First, Judge Bumatay opined on the topic of horizontal stare decisis: Second, bloodthirsty […]
John McGinnis on Nondelegation [Updated]
Michael Ramsey
At Law & Liberty, John McGinnis: Nondelegation Without Chaos. From the introduction: If one theme unites the Roberts Court’s work in administrative law, it is a counter-reformation that recenters the Constitution’s basic architecture for the administrative state. Congress is to legislate; the president and his subordinates are to execute within a hierarchical, accountable executive; and […]
Michael McConnell: Against Bad Originalism
Michael Ramsey
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism (8 pages) on SSRN. Here is the abstract: Jonathan Gienapp’s book, Against Constitutional Originalism, provides excellent critiques of some features of academic originalist theory, but the title is a misnomer. From the introduction: Despite its combative title, Against Constitutional Originalism: A Historical Critique, Stanford historian […]
Adam White on the Tariff Case
Michael Ramsey
At SCOTUSblog, Adam White (Scalia Law): President Trump’s tariffs v. the Supreme Court’s duties. From the introduction: … In the International Emergency Economic Powers Act of 1977 – or IEEPA for short – Congress gave presidents sweeping powers to deal with any “unusual and extraordinary threat with respect to which a national emergency has been declared.” Specifically, […]
The Broader Problem of Rampant National Emergencies
Andrew Hyman
The current controversy about emergency tariffs should be viewed in the broader context of proliferating national emergencies. When the National Emergencies Act became law in 1976, there were only four national emergencies in effect. As of now, there are 48. Each of them would have expired automatically after one year, but for presidential renewal. See 50 U.S.C. § […]
Seth Barrett Tillman on New York v. Trump
Michael Ramsey
From the Clemson Law Review, an interview with Seth Barrett Tillman on the New York v. Trump prosecution (and some originalism): Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman. From the early part of the interview: [Tillman] This case [New York v. Trump] is a little bit more complex […]