Constitutional Interpretation: Articles and Testimony

""Unconstitutional Wars from Truman Forward," 30 Humanitas 5 (2017). Beginning with Harry Truman, Presidents have circumvented Congress when going to war and have instead sought support from the U.N. Security Council and NATO allies. To that extent, they have adopted the British model that placed all of external affairs with the Executive - a model the Framers were well aware of and decisively rejected. Independent presidential powers in external affairs have been promoted by scholars, the Supreme Court (the sole-organ doctrine in the 1936 Curtiss-Wright decision), and various agencies of the executive branch, including the Justice Department.
"The Claim of Judicial Finality: Theory Undercut by Experience," 16 University of New Hampshire Law Review 305 (2018). Justices of the Supreme Court, legal scholars, and reporters who cover judicial proceedings frequently claim that when the Court issues a constitutional decision it remains final unless the Court changes its minds or the Constitution is amended to reverse the Court. However, the record of more than two centuries regularly punctures that theory.
"A Challenge to Presidential Wars: Smith v. Obama," 44 Congress & the Presidency 259 (2017). Starting with Harry Truman's war against North Korea in 1950 and extending to Barack Obama's military actions against Libya in 2011, Presidents have exercised the war power without any statutory support from Congress. Instead, they claim "authority" from United Nations resolutions and NATO allies. A lawsuit by Captain Nathan Michael Smith in 2016 challenged these presidential initiatives.
"Does the Supreme Court Have the Final Word?," 64 The Federal Lawyer 62 (2017). The Supreme Court and legal scholars regularly insist that when the Court decides a constitutional matter it speaks with finality. According to that account, those decisions can be altered only if the Court changes its mind or the Constitution is amended. Noting in American history supports that generalization. On a regular basis, Supreme Court decisions on constitutional questions are challenged and overridden by the elected branches backed by public opinion.
"The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,"31 Constitutional Commentary 149 (Summer 2016). Beginning with the 1936 decision in United States v. Curtiss-Wright and carrying forward to the 2015 decision in Zivotofsky v. Kerry, errors and misconceptions by Supreme Court have promoted independent presidential powers in external affairs. The decision in 2016 jettisoned the sole-organ doctrine in Curtiss-Wright but allowed two other errors in the 1936 decision to continue and developed a new model of presidential power that is close cousin to the sole-organ doctrine.
"How Courts Expand Presidential Beyond Constitutional Limits," Washington Times, September 13, 2016. Beginning with the Curtiss-Wright case of 1936 and carrying forward to the Jerusalem passport case (Zivotofsky) in 2015, the Supreme Court has fashioned doctrines and theories that support exclusive and plenary power for the President in external affairs. Presidents have also claimed they can obtain authority not from Congress but from the UN Security Council and NATO allies.
"Institutional Powers of Congress," Bruce Fein and Louis Fisher, October 2014. This document provides guidance to congressional staff for basic powers and duties of Congress needed to carry out the checks and balances that are fundamental to constitutional government. Among the subjects covered: war powers, congressional oversight, the spending power, warrantless surveillance, Intelligence Committees, military tribunals, gaining access to executive documents, the confirmation process, subpoenas and the contempt power, and the State Secrets Privilege.
"Obama Flips Position with Prisoner Exchange," National Law Journal, June 23, 2014. On May 31, 2014, President Obama released five Taliban detainees from Guantánamo in exchange for the release of Sgt. Bowe Bergdahl, who had been held by the Taliban for five years. The release violated the statutory requirement that the executive branch give Congress 30 days advance notice before releasing any detainee from Guantánamo, asserted presidential authority under Article II without acknowledging congressional authority under Article I, and failed to follow Justice Department policy announced in an Office of Legal Policy memo on January 15, 2009.
"Congress Has Ample Legislative Tools to Defend Itself," Roll Call, March 11, 2014, p. 20. The House Judiciary Committee has held several hearings critical of President Obama for acting in a manner that some lawmakers regard as a violation of his constitutional duty to see that the laws are faithfully carried out. One legislative remedy (H.R. 3857, the Enforce the Take Care Clause) would authorize either chamber of Congress, with a 60-percent majority, to file a lawsuit to compel the President to execute the law. The bill is so broadly drafted that courts would dismiss such cases.
"Judicial Errors That Magnify Presidential Power," The Federal Lawyer, January/February 2014, pp. 66-72. Judicial rulings by the Supreme Court are treated as legitimate and often authoritative sources of authority. What happens if a decision rests on a plain misconception about presidential power, often because the Court failed to properly understand a historical precedent? An error, from any source, should not guide courts, Congress, the executive branch, scholars, and the general public. Courts should revisit their mistakes and correct them.
"Obama Got the Law Right and the Politics Wrong," Boston Review, December 9, 2013. In July 2013, the Obama administration announced it would allow an additional year before the Affordable Care Act's employer and insurer reporting requirements took effect. On several occasions President Obama was asked on what legal grounds the administration acted. Had he violated the Constitution's requirement that he "take Care that the Laws be faithfully executed?" Each time he chose to avoid giving an answer. On December 3, the House Judiciary Committee held a hearing to explore that issue.
"Presidential Budgetary Duties," 42 Presidential Studies Quarterly 754 (December 2012). Although the Constitution places the power of the purse in Congress, Presidents and executive agencies have long exercised broad discretion over the obligation and expenditure of funds. On occasion there have been major collisions, including President Nixon's claim that he could refuse to spend appropriated funds (the impoundment dispute) and the position of the Reagan administration that if Congress denies funds for certain operations the President wants he may seek money from foreign governments and private parties (the Iran-Contra affair). This article also covers covert spending, item vetoes, legislative vetoes, and efforts in recent decades to control the national debt.
"No Labels Would Hurt Separation of Powers," Roll Call, July 19, 2012, p. 18. The bipartisan group called "No Labels" has promoted a number of reform measures which it claims will make government function more effectively. The main effect, however, would be to redirect the United States away from its constitutional system of separation of powers and checks and balances and make it more closely resemble the British parliamentary system, which deliberately concentrates power in the Executive. Other reform proposals, ranging from a presidential item veto to a "fast track" for legislative proposals submitted by the President (forcing Congress to approve or reject, without any legislative amendments) would substantially weaken representative government and the deliberative process in Congress. The recommendations offered by No Labels place implicit and unwise trust in presidential power and fail to take into account the repeated damage done to constitutional government by abusive and illegal initiatives taken by Presidents, especially from the Korean War of 1950 to the present time.
"Teaching the Presidency: Idealizing a Constitutional Office," PS: Political Science and Politics, January 2012. From World War II to the present, a number of prominent scholars on the presidency advocated an outsized trust in executive power, weakening the constitutional system of separation of powers and checks and balances. The names include Clinton Rossiter, Henry Steele Commager, Richard Neustadt, and Arthur Schlesinger (before he turned against presidential power with Richard Nixon in office). Instead of relying on objectivity and a respect for public law, these writers manufactured heroic properties for the Presidency, clothing it with imaginary qualities of acting instinctively for the "national interest" and surrounded by advisers with unrivaled expertise and unerring political judgment. Veneration for the Presidency continues in some studies after 9/11.
"Crush Videos: A Constructive Dialogue," National Law Journal, February 21, 2011, p. 38. There is a general belief that the task of constitutional interpretation is reserved exclusively to the Supreme Court, but there are many legitimate participants, including Congress, the President, the general public, and the 50 states with their own constitutions. This article reviews the political response to a decision by the Supreme Court in United States v. Stevens, issued April 20, 2010. By an 8-1 majority, the court held that a statute applying criminal penalties to commercial activity in "crush videos" was overbroad and thus unconstitutional. Congress quickly revised the legislation and it was signed into law on December 9, 2010.
“Saying what the law is: On campaign finance, it’s not just for the Court; Congress has a co-equal say,” National Law Journal, February 22, 2010, p. 38. The Supreme Court decision in Citizens United v. FEC (2010) claimed that judicial rulings on campaign finance law are final unless the Court alters its position or the Constitution is amended. This article argues that members of Congress have equal, if not superior, competence, authority and legitimacy to decide the law on campaign finance. New legislation is needed to assure that the level of campaign expenditures does not corrupt the political system, drain power from the general public, and weaken Congress as an independent branch of government.
“Congress, Don’t Cede Budgetary Power to the President,” Roll Call, January 19, 2010, p. 4. The current magnitude of budget deficits has drawn attention to a form of “item veto” that might find acceptance in the courts. The version currently under consideration (“expedited rescission”) would permit the President to sign an appropriations bill and then return to Congress a list of projects to be canceled. Congress would have to vote on his proposal, without amendment. The procedure would weaken Congress as an institution and reward the President who has been the major cause of deficits by recommending tax cuts and unpaid military interventions. Savings from this process would be minuscule and might even increase spending through quid pro quos.
Statement before the Senate Committee on the Judiciary, “Restoring the Rule of Law,” September 16, 2008. In previous periods of emergency and threats to national security, the rule of law has often taken a backseat to presidential initiatives and abuses. This statement identifies some basic steps for returning to the rule of law and constitutional government. Damage comes when the executive branch depends on the state secrets privilege, secret law, signing statements, misuse of executive privilege, and dependence on the illusory claim of “inherent” powers. The rule of law is weakened when Congress and the judiciary defer to broad claims and assertions by executive officials and fail to exercise checks and balances.
“Interpreting the Constitution: More than what the Supreme Court Says,” Extensions, Fall 2008, pp. 14-19. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. If the meaning of the Constitution depended solely on unelected federal judges, popular sovereignty would be undermined and replaced by judicial, hyper-technical interpretations increasingly alien to the public. There is no historical support for the view that judges are better positioned to safeguard minority and individual rights. Mutual respect among the branches (and between the branches and the public) provides continuing legitimacy and vitality to the Constitution.
“Signing Statements: Constitutional and Practical Limits,” 16 Wm. & Mary Bill of Rights J. 183 (2007). May a President, through a signing statement, nullify or dilute a bill that both houses of Congress pass and present to him? Does that assertion of authority give the President, in effect, an item veto? What happens to the President’s constitutional obligation to “take Care that the Laws be faithfully executed”? If signing statements replace Congress-made law with Executive-made law and treat a statute as a mere non-binding starting point for what executive officials want to do, the rule of law is undermined. The threat is especially grave when implementation of a law is not made public, as when interrogating detainees.
Statement before the House Committee on the Budget, “Line-Item Veto — Constitutional Issues,” June 8, 2006. It is possible to write legislation giving the President a form of item-veto authority that satisfies the standards set forth in Clinton v. City of New York (1998). However, members of Congress have an independent and non-delegable obligation to protect their institutional rights, duties, and prestige. The item-veto proposal considered by the committee damaged the prerogatives of Congress by signaling to the public that lawmakers cannot properly conduct their constitutional duties over federal spending. Moreover, no evidence supports the view that the President is more responsible on fiscal affairs than Congress, either on aggregate amounts or particular projects.
Statement before the House Committee on the Judiciary, “Congress, the Court, and the Constitution,” January 29, 1998. In the last four decades, Congress has on only one occasion held general hearings on its duties to independently interpret the Constitution. Is the legislative branch coequal with the judiciary in this task or must it defer to the courts? Does Marbury v. Madison (1803) stand for the proposition that when the Supreme Court decides a case its interpretation is final and binding on the other branches and may be changed only by the Court or by constitutional amendment? The record demonstrates that members of Congress may act not only in advance of court rulings but afterwards as well, creating a broad and constructive interbranch dialogue.
“Separation of Powers: Interpretation Outside the Courts,” 18 Pepperdine L. Rev. 57 (1990). Although law reviews and classes in constitutional law focus almost exclusively on case law, many of the principal disputes involving separation of powers are resolved outside the courts, including issues of the veto power, the President’s removal power, recess appointments, congressional investigations, executive privilege, war powers, budgetary disputes, legislative vetoes, and the Incompatibility and Ineligibility Clauses. Through various accommodations, questions of constitutional law are settled by these nonjudicial interpretations. Even when litigation occurs it is not unusual for courts to simply bless what the elected branches earlier decided.
“Constitutional Interpretation by Members of Congress,” 63 N.C. L. Rev. 707 (1985). In response to an article published two years earlier by Abner J. Mikva, this article argues that Congress has ample resources to perform effective constitutional analysis. Historical and contemporary examples of constitutional debate conducted by lawmakers demonstrate that Congress can analyze difficult constitutional questions in a responsible manner. Errors of legislative judgment occur, but that pattern is also evident in the record of the judicial and executive branches. Much of constitutional law depends on factfinding and the balancing of competing values, areas in which Congress can legitimately claim substantial expertise.
Books: Defending Congress and the Constitution (Lawrence: University Press of Kansas, 2011): American Constitutional Law (with Katy J. Harriger), (Durham: Carolina Academic Press, 9th ed., 2011): This book is also available in two paperbacks: Constitutional Structures: Separated Powers and Federalism ( and Constitutional Rights: Civil Rights and Civil Liberties (http:; Political Dynamics of Constitutional Law (with Neal Devins), (St. Paul, MN: West Publishers, 5th ed., 2011):; The Constitution and 9/11: Recurring Threats to America's Freedoms (Lawrence: University Press of Kansas, 2008):; Constitutional Conflicts between Congress and the President (Lawrence: University Press of Kansas, 5th ed., 2007):; The Democratic Constitution (with Neal Devins), (New York: Oxford University Press, 2004): Devins/dp/0195171225/ref=tmm_hrd_title_0
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