Author: Gerard Magliocca


The Death Penalty is Not Going Away

One of the unheralded themes from Tuesday’s results is that the demise of the death penalty has been greatly exaggerated.  There will obviously be no Supreme Court majority anytime soon that will pick up on Justice Breyer’s dissenting opinion in 2015 (joined by Justice Ginsburg) that the death penalty is unconstitutional.  Moreover, a ballot proposition to abolish capital punishment was voted down in California, Nebraska voted to repeal a statute outlawing the death penalty, and Oklahoma amended its state constitution to protect capital punishment.


NFIB v. Sebelius

One result of the election is that the Chief Justice’s opinion upholding the constitutionality of the Affordable Care Act takes on a different light.  First, the case is simply far less important than we thought.  Second, the Chief Justice’s judgment that any repeal of the Act should be accomplished through ordinary political processes rather than through a judicial decision now looks better. Of course, we don’t know how the legislative process will play out next year, but it’s fair to say that the Act will be significantly modified.


Ted Cruz for the Supreme Court

Wouldn’t the President-elect be smart to get Ted Cruz out of the Senate and offer him the Scalia seat.  Conservatives would love the pick, he’s clearly qualified, and then Trump wouldn’t have to deal with him anymore.  (I’m not thrilled by this prospect, but it does make sense, no?)


Trump as Andrew Jackson

I thought I would take a stab at putting the election into some context.  The only President that compares to the current President-elect is Andrew Jackson.  He led a popular revolt against the political establishment of the day.  He also took a strong view of executive power and scared a lot of people who thought he would become a dictator (largely because of his military background). And he certainly was a bull in a china shop as President.

I don’t make this as a favorable comparison, as Jackson was a bad (though politically powerful) President. But perhaps there is something that can be learned from that era.


More on Faithless Electors

Let’s hope that the election does not yield any weird problems or results, but before the vote is complete let me explore one or two issues about the Electoral College.

Up until now, I’ve thought that electors are free to vote for anyone and that state cannot constitutionally restrict that choice. Now, though, I’m wondering if the correct argument is that most states just permit electors to vote for anyone, but they can choose not to.  I say that because I doubt that states had any laws regulating who electors could vote for until recent decades, and I’m wondering if any of the electors who voted faithlessly in the past ever came from a state that said they could not.  Maybe I should look into that (maybe somebody already has).

Another thought is that there are some states that say a faithless elector vote is invalid. Others say it is valid but that the elector must pay some fairly trivial fine for voting that way. This strikes me as silly.  Either the vote should be counted or not.  What’s the point of a fine?


The Brexit Opinion

Yesterday a court held that the Government cannot unilaterally trigger the process for Britain to withdraw from the European Union.  Instead, Parliament must do so with a statute. Since I posted about this issue after the Brexit vote, I thought I would comment on the decision, which will be appealed to the UK Supreme Court.

One aspect of the court’s analysis involved the legal effect of a decision to give formal notice of a withdrawal.  A principle of the unwritten constitution is that the Government cannot unilaterally (in other words, without statutory authority) alter the domestic legal rights of British citizens.  The Government replied that starting the withdrawal process does not alter any legal rights: only the final exit agreement would and that would go before Parliament. The Court said this argument was without merit because there was no way to know if an exit agreement would be reached during the two-year negotiation period specified by the relevant EU Treaty.  If no agreement is reached, then Britain’s EU membership simply ends and that would alter domestic legal rights.  Thus, they could be altered without parliamentary approval if the Government failed to reach an agreement with the European Union and approval must be sought now.

This strikes me as unpersuasive. The fact that there is a risk that legal rights will be altered is not the same as saying that they are being altered.  In practical terms, I also think that the Government is very unlikely to reach no agreement with the EU. Now Parliament might be required to act if that happens, and the courts might have to keep applying EU law where applicable until Parliament acts, but those are possible remedies for a far-fetched scenario.

A more convincing line of argument is the Court’s assertion that the Act formalizing Britain’s membership in the EU is a “constitutional statute” that must be read more strictly in favor of Parliament’s prerogatives than an average statute (other precedents made this point).  Since that statute made EU law a part of UK law, only an Act of Parliament can begin the process of undoing that. Again, the issue is whether the start or the end of the process is the relevant reference point. Here, though, you might say that reading the Act as strongly as possible would cover the beginning and the end.

We’ll see what happens on appeal sometime next year.  Later I may return to the intriguing idea of a “constitutional statute.”


A Presidential Medal of Freedom for John Bingham

(Cross-posted at Balkinization)
I am pleased to invite the scholarly and legal community to join a letter that Michael Kent Curtis and I have drafted asking the President to honor John A. Bingham with a posthumous Presidential Medal of Freedom for his contributions to the United States, most notably by drafting the Equal Protection Clause of the Fourteenth Amendment. The letter will go out either next week or the following week, and I will post the final text here when we are done.

If you are interested in seeing the draft and joining the letter, please email either Professor Curtis ( or me (


Swallowing the Whistle

Some of the criticism being directed against FBI Director Comey strikes me as a version of an argument that you hear in sports (especially basketball). The argument is that towards the end of a close game the referees should “swallow their whistles.”

What do people mean by that?  I think they mean that a higher standard of proof must be met before the ref makes a call that might determine the outcome.  Why?  One thought is that we want the players to determine the outcome themselves.  Or another thought is that if the call is close it should not be made because the consequences of an erroneous call are too great (as opposed to say, something called earlier in the game).

But there are difficulties with this line of thought.  First, you might say that the rules should be enforced in the same way throughout the game. Second, you could argue that “swallowing the whistle” rests on an action/inaction distinction that is weak.  By not calling something that would ordinarily be called, the ref is determining the outcome–and in the wrong way.

I’m not sure how well the whistle analogy works for what the FBI Director did. Perhaps he just made the wrong decision to disclose–it doesn’t matter that we are close to the election. Perhaps he swallowed his whistle by not recommending charges against Hillary Clinton in the first place.  Or perhaps so-called “October Surprises” that involve law enforcement are not outcome determinative because of things like early voting or the not-unjustified belief by many voters that news at the end of a campaign should be heavily discounted as political noise. Anyway, we’ll know soon.


Donald Trump as an Anti-Precedent

One way in which constitutional law makes lemonade out of lemons is through the concept of an anti-canon. In other words, lawyers and judges hold up certain cases or events as precedents for what NOT to do.  Law is unusual in emphasizing these disasters. In an English class, students don’t read bad books to understand how to write good ones.  In law classes, though, we spend a lot of time thinking about cases such as Dred ScottPlessyLochner, and Buck v. Bell  to understand how they went so wrong and what we can learn from them.

I wonder if Donald Trump will become a sort of anti-precedent for politics.  In other words, people may look back on this election and say for years to come things like “You can’t say that–you’ll end up like Trump” or “That guy is just like Trump,” or “that proposal sounds just like Trump.” In part the meaning of Trump’s candidacy will depend on how much he loses by and what he does after the election, but my point is that he might end up reinforcing or strengthening many of the norms that he is now flouting.


Should President Clinton Nominate Merrick Garland for the Court?

With all due respect to Yogi Berra, I’m going to talk about one of the first major decisions that President Clinton will have to make. (I say “have to make” because I doubt that the Senate will confirm Judge Garland in the lame-duck session.  If they do, though, then never mind.)

One factor is whether Republicans or Democrats control the Senate next year.  If the GOP retains control, then the argument for nominating Garland again gets stronger, as he is easily confirmable in a non-election year.  If Democrats win the Senate, though, then the choice is more difficult.  The President could nominate a younger and more liberal judge, or perhaps go for younger and more diverse in some sense.  Why stick with Garland?

I suppose one answer is that Judge Garland is being treated badly and not nominating him next year would be, well, treating him even worse. Nevertheless, there is no vested right in a nomination of this sort from President to President (even of the same party). There is also the thought that even with a Democratic Senate the President may not want her first Supreme Court nomination to cause a fight.  She is almost certain (you would think) to get at least one more vacancy, and maybe that is the time for a different pick.

A contrary case could be made, though, that by making that different pick now the President would discourage Senators from repeating the Garland precedent. Picking Garland again basically says to the Senate that there is no real cost to imposing a presidential election year blockade. If someone else gets picked who is worse from the Senate’s point of view, future Senators might say “See, that strategy backfired. Don’t do that again.”

But is this true?  By the time another Justice dies in a presidential year when the Senate and White House are controlled by different parties, we might all be dead.  Will anyone really care about the Garland precedent except for some historians?  Seems doubtful.

Anyway, let’s revisit this after Election Day and see where the Senate stands.