Constitutional Context

Recent Senate inaction (the failure last year to consider President Obama’s Supreme Court nominee) and Senate actions (the political maneuvering over President Trump’s nominee, now-Justice Neil Gorsuch) underscore the extent to which – for better or for worse – the Constitution’s framers left the independence and reputation of the federal judiciary up to the judgment […]

For the second month in a row, this podcast focuses on religious discrimination.  But this month’s context is very different. Last month we explored the legal path that opponents of the controversial Trump Administration travel-ban must tread to show that the ban should be treated as religious discrimination. By contrast, this month’s religious-discrimination focus stems […]

Continuing controversy over whether the Trump Administration’s travel-ban unconstitutionally discriminates against Muslim believers brings into sharp relief a perennial, complicated question of constitutional law. Regularly, judges and others assessing governmental action face this general question:  When should a law or policy that is not discriminatory “on its face” nevertheless be treated as though it discriminates […]

This podcast begin with a riddle:  “What do former California governor George Deukmejian, the Cleveland Choral Arts Association, and the NFL all have in common?” Give up?  The answer is that each was among the individuals and organizations filing “amicus” briefs (also known as “friend of the Court” briefs) over the last several years with […]

Only half facetiously, I suggest to my students that, when there’s a lull in a cocktail-party conversation, they should spice things up by asking, “Should any citizen who thinks the government is acting illegally be able to challenge the government in court?” When partygoers reply, “of course — that’s what the rule of law means […]

Now that President Trump has nominated Judge Neil Gorsuch – identified with the “original intent” school of constitutional interpretation – to replace Justice Antonin Scalia (the justice popularizing the original intent approach on the modern Court), CONSTITUTIONAL CONTEXT listeners are likely to hear lots of media reporting and pundit commentary about “originalism.” The numerous approaches […]

Regardless of their political ideology or partisan stripe, modern presidents regularly raise constitutional controversies when they exercise executive authority. President Obama’s 2014 DAPA program (which would have postponed deportability for several million undocumented parents of U.S. citizens and permanent residents) was twice declared illegal by lower federal courts. And, the Trump presidency has already generated […]

Now that, for the second time in 16 years, the candidate for president who won the most popular votes has been denied the presidency, the media and public are paying much more attention to the Electoral College — that strange institution our constitutional founders bequeathed us for choosing our nation’s chief executive.  People now understand […]

In calling for tougher gun-control laws after tragic shootings at schools and other public venues, advocates despairing of “common-sense” national measures suggest that meaningful gun control will more likely emerge from state and local governments. Well, right here in San Diego we are testing this speculation.  Our County is at the center of a lawsuit […]