The Brewing Constitutional Crisis

Benjamin Franklin bust by Jean-Antoine Houdon

437 law professors (myself included) from across the country have signed the following statement to call attention to the constitutional crisis that the nation is now facing.

A CALL TO URGENCY

The opening weeks of the second Trump administration convince us, as law professors who have spent years studying the American legal system, that we are beginning to see unfold the gravest threat to the rule of law and its constituent principles – the separation of governmental powers, the independence of prosecutorial authority, the inviolability of human rights, the transparency of government action, and the sanctity of constitutional accountability itself – ever presented in our lifetimes. The president’s and his associates’ actions, and threats of action, profoundly undermine the bedrock principle of our federal government system – that the Chief Executive and his agents are constrained by the United States Constitution. The fundamental guardrails of our constitutional democracy itself are threatened and notably battered. They are, as we write, at risk of complete collapse.

We recall that Benjamin Franklin warned, when asked by Elizabeth Willing Powell whether he and his colleagues had delivered “a republic or a monarchy,” that we have “a republic” but only “if you can keep it.” We hope that all Americans, and especially all lawyers, will recognize the gravity of this situation and will be prepared to answer that challenge with the urgency required in the days, weeks, and months ahead.

You can find the current list of signatories here.

Gorsuch and the State of Administrative Law

photo by Joe Ravi

The United States Supreme Court

I was interviewed by Harold O’Grady on his podcast for the BLS Library Blog about Supreme Court nominee Judge Gorsuch:

This conversation with Brooklyn Law School Professor David Reiss focuses on his recent article Gorsuch, CFPB and Future of the Administrative State. Prof. Reiss talks about the impact that U.S. Supreme Court nominee Judge Neil Gorsuch would have on the future of administrative law and, in particular, on federal consumer protection enforcement if he is confirmed. Prof. Reiss reviews the case PHH v. Consumer Financial Protection Bureau which the United States Court of Appeals, District of Columbia Circuit decided last year. It is likely the case will be appealed to the Supreme Court. If so, Justice Gorsuch may vote to curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, Prof. Reiss believes that, given previous rulings by Judge Gorsuch in cases dealing with administrative law, a Justice Gorsuch will be a skeptic of agency action and will support greater judicial review of agency actions.

You can find the link to our conversation here.