Sunday, December 04, 2016
Bobbitt vs. Jaffer on Drone Strikes
Philip Bobbitt, who to my mind does not enter the lists often enough, has a very insightful review of Jameel Jaffer's book on drone strikes up on the Just Security website. Jaffer is not too happy with Bobbitt's review, and his reply is here. To my mind, Bobbitt makes at least two important points that Jaffer misses. The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I'm happy to call it a "war," the 9/11 War) authorized by Congress. So as I recommend in my recent article, Bobbitt takes the 9/11 AUMF seriously. My contribution is to argue that the presidential elections held subsequent to 9/11 are constitutionally relevant to assessing the basis of the Obama administration's military operations overseas, including drone strikes. By the way, I am happy to recommend Sai Prakash's article in the same Drake Law Review symposium to which I contributed. Prakash argues for the position, which I agree with, that the 9/11 AUMF justifies the military operation against ISIS.
Trump's real threat to democracy
Last week, CNN asked me to write about how President Donald Trump
might restrict freedom of speech. Instead I sent them an op-ed
explaining the real threats to democracy. Here it is.
Inside the Strange World of “Reconciliation”
Thursday, December 01, 2016
Voting Rights Back at the Supreme Court: The Big Racial Gerrymandering Cases You Haven’t Heard Of
Tuesday, November 29, 2016
Trump's Victory and Regime Theory
Sunday, November 27, 2016
Republicans and the Americans for Democratic Action
Saturday, November 26, 2016
President Obama should be supporting a new constitutional convention
The new "political correctness"
Anyone who seriously believes that the Trump "election" does in "political correctness" is simply mistaken. Instead, we are daily being visited with new forms of political correctness. In no particular order, let me suggest the following as things that will become a condition for participating in polite public conversation in the all-too-near future, on pain of being thought a political extremist or, even worse, not a "good sport" about being defeated in an election:
Friday, November 25, 2016
The Uncomfortable View from 1824
Thursday, November 24, 2016
Advice from the Book of Changes on Recent Events
Wednesday, November 23, 2016
Will the U.S. survive the 2016 election (continued): A reply to Damon Linker
Damon Linker has a thoughtful reply in The Week to the New York Daily News op-ed co-authored by my UT colleagues Jeff Tulis, Jeremy Suri, and myself. He certainly does not disagree with our central premise that Donald Trump is a potential menace to the American republic. The gravamen of his argument is as follows:
Upside Down Federalism
Gerard N. Magliocca
The outcome of the election may change our understanding of federalism. Part of that change is that Democrats will become more keen on states'-rights and Republicans less so, in the grand tradition of political flip-flopping. A theoretical shift, though, may also be in order.
Tuesday, November 22, 2016
Torture and the U.S. Military
Cross-posted at Opinio Juris
Monday, November 21, 2016
Will the United States Survive this election (continued) America on the brink of civil war?
Trump Normalization Watch (conflict of interest)
More substantive articles are appearing about Trump's enormous conflict of interest problems. To my mind, the WaPo has the best coverage, with a major story here; Jennifer Rubin's follow up on what was said on the Sunday programs; and Trevor Potter's essential analysis. So, three observations: spokespeople for Trump are using the (nonexistent) law as a shield against what is really a political-policy problem, albeit one that might verge on the constitutional (in my estimation they are bluffing, they don't appear to have a strategy given that Trump almost certainly doesn't want to divest himself of ownership). Second, the issue is indeed ownership not management, as Rubin points out. Third, Trump and the GOP are perhaps concentrating too much in their statements on the possibility of "outbound" corruption (outbound, that is, from the Oval Office), wherein Trump makes a decision based on financial interest, rather than "inbound" corruption, in which a foreign power or entity directs financial benefits Trump's way in the hope of influencing American policy. The only way to solve the latter is through divestiture of ownership. And this is by no means a complete catalog of the difficulties -- there is also the "overhang" problem as federal officials attempt to make decisions in the ordinary course which will somehow affect Trump's financial interests without worrying about their future job security.
Choose Your Own Health Insurance Apocalypse
443,000; 454,000; 379,000. Those are the estimated number of people in, respectively, Michigan, Ohio, and Pennsylvania who currently have health insurance through the Medicaid expansion component of Obamacare. That’s the part that the Supreme Court gave states the power to opt out of, but which nonetheless has managed to get more people health insurance than the better-known exchanges-with-subsidies component of the system. 31 states now participate in the Medicaid expansion and that includes every Great Lakes state except Scott Walker’s Wisconsin. How many of the people currently receiving expanded-Medicaid coverage were Trump voters? A back-of-the-envelope estimate* is roughly 200,000 actual votes for Trump, in those three states alone. (Note that the outcome in Michigan was decided by fewer than 12,000 votes.) So, simple question: Does Donald Trump want to begin his presidency by kicking all those people off their health insurance? Or does he want to keep this major component of Obamacare, or some version of it, in place?
City Power: Final Reflections on Cities and the 2016 Election
Sunday, November 20, 2016
Maybe the Democrats Should Help Trump Abolish Obamacare