A Brief Response to Professor McConnell on Self-Pardons
Andrew Hyman
Regarding the WaPo column by Professor McConnell that Mike Ramsey quoted earlier, that column links to the debate transcript from 1787, and I don’t think that transcript really suggests an ability to self-pardon. Professor McConnell is technically correct that, “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be […]
Saikrishna Prakash: Congress as Elephant
Michael Ramsey
Recently published, in the Virginia Law Review: Saikrishna Bangalore Prakash (University of Virginia Law School): Congress as Elephant (104 Va. L. Rev. 797 (2018)). Here is the abstract: Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, […]
Justice Gorsuch Dissents on the Contracts Clause, Cites Mike Rappaport’s Student Note
Michael Ramsey
In Sveen v. Melin, decided 8-1 yesterday, Justice Gorsuch filed a solo dissent arguing that the state law at issue was unconstitutional under the original public meaning of the contracts clause. Here are the key passages: When it comes to legislation affecting contracts, the Constitution hardens the presumption of prospectivity into a mandate. The Contracts […]
Zachary Price: Funding Restrictions and Separation of Powers
Michael Ramsey
Recently published, in the Vanderbilt Law Review, Zachary S. Price (Hastings): Funding Restrictions and Separation of Powers (71 Vand. L. Rev. 357 (2018)). Here is the abstract: Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive overreaching, it may provide authority […]
The Pardon Power Clause Does Permit the President to Pardon Himself [Updated]
David Weisberg
With regard to the recent post on this blog concerning Eric Muller’s post at The Faculty Lounge: (1) Prof. Muller begins his post by asserting: “A person can certainly give himself something.” (Emphasis in original.) He then proceeds to express doubts that a person can grant himself something. He relies, in part, on the OED, which provides the […]
Law Professors’ Letter on Executive Power (Part 2): The Faithful President
Michael Ramsey
In a previous post I noted that a group of law professors has released a public letter to the President's counsel arguing that the President's exercise of executive powers is limited by a duty of good faith and a responsibility not to act for private gain. The previous post remarked on the fact that the […]
Law Professors’ Letter on Executive Power: An Originalist Argument by Nonoriginalists
Michael Ramsey
A number of law professors have signed an open letter to the President's counsel asserting that the President is bound by a duty of good faith in carrying out executive functions. Here is the basic claim (footnote omitted): First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, […]
Can the President Pardon Himself? (Again)
Michael Ramsey
Eric Muller (North Carolina) at The Faculty Lounge: Can Donald Trump "Grant" Himself a Pardon? I Doubt It. A nice argument (complete with graphs) that to "grant" is something you do to someone else, not to yourself. From the introduction: The question on everyone's lips is always some version of "can Donald Trump pardon himself?" But […]
The Importance of Experts
Mike Rappaport
Lynn Uzzell has criticized the positive reactions of both originalists and nonoriginalists to Mary Bilder’s book, Madison’s Hand (which argues that Madison doctored his notes). While I agree with some of what Uzzell says, unfortunately she fails to appreciate the importance of developing a strong originalist theory that will win the debate among experts. Let me […]
Robert Natelson on Enumerated Powers
Michael Ramsey
Recently published, in The Federalist Society Review (vol. 19, May 2018), Robert Natelson (Independence Institute): The Founders Interpret the Constitution: The Division of Federal and State Powers. Here is the introduction: Perhaps the leading issue dividing proponents and opponents during the debates over whether to ratify the Constitution was whether the document granted, or could be […]