Notice & Comment

Author: Sam Wice

Notice & Comment

Why the D.C. Circuit Likely Was Incorrect in Holding that the House of Representatives Has Standing to Challenge President Trump Building the Wall

The D.C. Circuit issued an opinion today in U.S. House of Representatives v. Mnuchin. The opinion holds that the House of Representatives has standing to bring a lawsuit against the Trump administration to prevent President Trump from building a wall along the border with Mexico. Although I have previously said that I believe the House […]

Notice & Comment

Examination of a Potential Talking Filibuster Rule in the Senate

Recently, I wrote an article on (i) why the vote and time requirements to overcome a filibuster are such effective tools for the minority to oppose legislation and (ii) potential procedural options on how to eliminate the filibuster. Subsequent news reports have indicated that if Democrats were to win the Senate in the 2020 elections, […]

Notice & Comment

The Origination Clause and Why House Democrats May Have Standing to Challenge the Recent Executive Order on Payroll Taxes

With COVID-19 cases still common throughout the United States and unemployment around 10 percent, many Americans are in a dire economic situation. As the COVID-19 economic stimulus recently expired, and President Trump and Congress have been unable to reach any agreement on an extension, President Trump unilaterally issued four executive orders for economic relief. Many […]

Notice & Comment

Examining Procedures for How the Senate Filibuster Could Be Eliminated

The days of the Senate filibuster are likely numbered. Recently, President Obama called for eliminating the filibuster as a relic of Jim Crow. Likewise, President Trump has repeatedly called for eliminating the filibuster, and Joe Biden has indicated openness to eliminating the filibuster. If the Senate were to eliminate the filibuster, this is not the […]

Notice & Comment

Why the Senate Likely Cannot Be Called Back Into Session Under the Constitution

In response to mass shootings across the country, several politicians, including President Trump, have called for increased gun-control measures. House Democrats had already passed some gun control bills before the mass shootings, and Speaker Pelosi has urged the Senate to consider the legislation. To encourage immediate action, Speaker Pelosi recently wrote a letter to President […]

Notice & Comment

Is the Death of the Blue Slip and Senate Hold Now Inevitable?

Much of a senator’s influence comes from the power to say no. Part of this traditional influence are the blue-slip and hold processes. The blue-slip process has historically required each home-state senator to return a “blue slip” stating that the senator supports a judicial nominee before the Senate will consider a nominee. Likewise, a hold has historically […]

Notice & Comment

If the ACA Is Enjoined, Must the TCJA Be Enjoined Too?

The Department of Justice recently announced that it will support a district court ruling that the entire Affordable Care Act (ACA) should be enjoined as the allegedly unconstitutional modifications in the Tax Cuts and Jobs Act (TCJA) that zeroed out the individual mandate to purchase health insurance are inseverable from the rest of the ACA. […]

Notice & Comment

Returning Civility to the Senate Confirmation Process Without Destroying the Senate

Recent Senate confirmation battles have featured unprecedented conflict. Without the need to consult with Democrats to overcome a filibuster on nominees, Republicans have eliminated some of the bipartisan confirmation norms such as the “blue slip” for U.S. circuit court nominees, which required each home state senator to approve of a circuit court nominee. In response, […]

Notice & Comment

The Legality of the Wall Is Not Primarily a National Emergency Question

Although the national emergency declaration is getting much of the attention, its legality will not primarily determine whether President Trump can build a wall along the border with Mexico. Specifically, only about a quarter of the additional funding President Trump wants to use to build the wall would come through his national emergency authority. Instead, the […]

Notice & Comment

Must All Federal Employees Work During a Future Shutdown?

To ensure that federal employees were promptly paid after the 35-day shutdown ended, Congress recently passed the Government Employee Fair Treatment Act of 2019. However, by passing the Act, Congress might have inadvertently required all federal employees to work during a future shutdown. The Antideficiency Act requires the government to shut down when Congress does […]