By Neil H. Buchanan and Michael C. Dorf
Most pundits and politicians, including the President, appear to assume that if the debt ceiling is reached, default would be necessary. Here, we observe a previously unnoticed deficiency in this assumption: Default would not only usurp congressional power to set spending levels; it also would not even satisfy the debt ceiling, because failure to pay money due on government obligations is a kind of borrowing, both for statutory and constitutional purposes.
By Alan E. Garfield
A slew of secular for-profit businesses have sued seeking exemptions from the contraception mandate and many have succeeded in obtaining preliminary injunctions. This Essay explains why courts have found these claims credible under the Religious Freedom Restoration Act but contends that the Act’s underlying purpose is best served by denying these entities an accommodation.
By: Susannah W. Pollvogt
Windsor could be seen as a case primarily about federalism and the states’ traditional prerogative to regulate the meaning of marriage. It could be seen as a case attempting to revive a form of substantive due process based in individual dignity. Or it could be seen as a case that turns on the doctrine of unconstitutional animus. This Essay will concern itself with this last interpretation—that Windsor is a case about animus. But even within the confines of this single issue, there is much to argue over.
By: Jason A. Cade
A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina, in cases arising from systemic unlawful policing.
By: Courtney G. Joslin
On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor. In a 5-4 decision authored by Justice Kennedy, the Court held that section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional. This Essay considers the extent to which the Court’s decision in Windsor turns on any of federalism-based arguments.