Current Issues in Constitutional Law

Steven D. Schwinn, Associate Professor of Law

Welcome to Current Issues in Constitutional Law.  The site provides up-to-date material on federal constitutional issues in the courts, in Congress, in the Executive Branch, and in the states.  The material is organized topically, and covers the constitutional doctrines in any basic or introductory constitutional law course.

Use the navigation bar on the left to locate material by doctrine; use the links below, under New and Notable, to find recently posted material; or use the links in the text of the U.S. Constitution to locate material by article, section, and clause.

New and Notable: September 2008

• The American Constitution Society held its 2008-2009 Supreme Court Preview.  Link here. 
• Dean Erwin Chemerinsky addressed students at the Lewis & Clark Law School on The Roberts Court and the Future of Constitutional Law on September 18, 2008.  Link here.

August 2008

• The government filed its supplemental brief in its appeal of district court orders requiring the government to notify Guantanamo detainees 30 days prior to transfer to another country.  The brief challenges the orders based on separation of powers principles, among others.  More here.
• Professor Larry Alexander posted a concise defense of "simple-minded originalism" on ssrn.  Click here for more.

• Judge Richard Posner criticized the Heller decision (the recent gun case), and advocated "loose" constitutional interpretation, in The New Republic.  Click here (and look under "The Second Amendment, Heller, and Constitutional Interpretation") for more.

• Judge John D. Bates of the Federal District Court for D.C. ruled in favor of the House Judiciary Committee--and against the administration officials' claim of executive privilege--in the on-going dispute over officials' refusal to comply with a congressional subpoena and testify before the Committee.  Read more on executive immunity here.

• Attorney General Michael Mukasey encouraged Congress on Monday to enact legislation to answer the questions on habeas "that Boumediene left unanswered."  More, with a flavor of the critical comments, as well, here.  (Look under Suspension of Habeas Corpus, and UPDATE (July 23, 2008).)
• The Fourth Circuit ruled en banc that the Authorization for Use of Military Force, or the AUMF, provided the President with authority to detain a foreign national militarily as an enemy combatant, but that the government violated the procedural due process rights of a Qatari national when it designated him an enemy combatant and detained him militarily on the sole basis of a hearsay declaration of an official with no personal knowledge of the case.  The full (and very lengthy) opinions are here (under The Executive, Military Detention) and here (under Procedural Due Process).
• Judge James Robertson of the United States District Court for the District of Columbia last Friday refused to postpone the start of Salim Hamdan's trial by military commission, passing on Hamdan's argument that the MCA is an unconstitutional suspension of habeas corpus.  Judge Robertson's full decision--with a concise background on the legal evolution of military commissions at Guantanamo--is here.  For more material on executive authority in wartime, click here; for more on Congressional authority in wartime, click here.
• Professor Douglas Kmiec posted a thoughtful piece on executive privilege last week on FindLaw.  Link to the article, along with other recent material on executive authority, here.
• Three important articles on originalism are here.  (Look for Originalism is Bunk; the July 24 UPDATE under The Second Amendment, Heller, and Constitutional Interpretation; and A Reader's Guide to Semantic Originalism.)

July 2008

• Former Attorney General John Ashcroft testified on July 17, 2008, in front of the House Judiciary Committee on OLC's advice (the "torture memos") regarding detainee treatment in the War on Terror.  Read more here.  (See UPDATE (July 17, 2008) under The Torture Debates.)
• The dispute between the House Judiciary Committee and Karl Rove over Mr. Rove's assertion of executive privilege in response to the Committee's subpoena seems to be coming to a head.  Read more here.

• The National War Powers Commission, led by former Secretaries of States James A. Baker, III and Warren Christopher, recommended replacing the War Powers Resolution with a new law providing for consultation between the President and Congress on matters of war.  Read more here.
• Read Professor Schroeder's testimony before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on the OLC torture memos here.  (Look for the Update under The Torture Debates.)

June 2008 

• Both the American Constitution Society and the Federalist Society held their OT 2007 Supreme Court reviews on July 1, 2008.  Links here.
• The D.C. Circuit overturned a CSRT's ruling that petitioner Parhat was an enemy combatant.  The court specifically left open the option for Parhat to file a habeas claim for immediate release pursuant to Boumediene.  Look for the update under Suspension of Habeas Corpus here.
• The Eighth Circuit vacated a lower court's preliminary injunction against South Dakota's informed consent law, holding that the plaintiffs failed to show that they were likely to prevail on their compelled speech claim.  More here.
• The U.S. Supreme Court overturned D.C.'s handgun ban on June 26, 2008, holding that the Second Amendment protects an individual right to possess a firearm, unconnected with militia service.  The opinions--Justice Scalia for the majority, and Justices Stevens and Breyer in separate dissents--provide excellent examples of interpretive techniques.  Click here for more.
• The U.S. Supreme Court overturned the "Millionaire's Amendment"--a federal campaign finance provision designed to level the financial playing field between self-funded candidates and non-self-funded candidates--on First Amendment grounds.  The Court ruled that the plaintiff had standing (click here), and that the provision ran afoul of the Speech Clause (click here).
• The Administration exerted Executive Privilege in response to a subpeona from the House Oversight and Government Reform Committee for documents related to the EPA's recommendations and conclusions related to greenhouse gas emissions under the Clean Air Act.  Click here for the full story and documents.
• In a closely watched case, the U.S. Supreme Court denied review of a Second Circuit ruling upholding a local redevelopment project against property owners' Takings Clause challenge.  Click here for more.
• A sharply divided U.S. Supreme Court ruled in Sprint Communications Co. v. APCC Services, Inc. that an assignee of a legal claim for money owed has standing in federal court, even when the assignee has promised to remit the proceeds to the assignor.  More here.
• The U.S. Supreme Court denied review of a district court decision upholding a Congressional waiver that permitted the Secretary of Homeland Security to disregard environmental laws to build a boarder fence against the plaintiffs' claim that the waiver impermissibly delegated legislative powers to the Secretary.  Click here for more.
• Justice Scalia discusses his originalism with Charlie Rose.  Click here.
• View a panel on constitutional interpretation from the 2008 American Constitution Society National Convention.  Click here.
• Same Sex Marriage v. Religious Freedom: The coming collision?  More here.
• The Second Circuit on facially neutral/disparate impact equal protection claims.  More here.
• The Supreme Court on habeas corpus and the Fourth Circuit on executive detention.  Click here for newly posted material. 
• Four recent U.S. Supreme Court cases on federal preemption.  Click here.