Things to Read (4/20/26)
some light reading about constitutionalism
Faithless Prosecution, by Jeff Bellin. On the unconstitutionality of vindictive prosecutions under the Take Care Clause. An important point I agree with in some respects (and will have something short on soon) but I’m not as sure about the prospect of judicial enforcement.
Why Courts Should Not Discipline Trump’s Lawyers, by Rebecca Roiphe. The other side of the coin, in some ways: “This Article draws on [John] Eastman's case to argue that disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive because they chill useful advocacy and threaten democratic values.” I have conflicted feelings about this, but “unwise and counterproductive” might well be right! See also Some Thoughts on John Eastman’s Disbarment by Brad Wendel.
The Presidential Records Act is Constitutional, by Chris Fonzone, a critique of the shocking recent OLC memo on the unconstitutionality of the Act. I find the memo’s Necessary and Proper arguments ambitious and tricky, but Fonzone’s point about the need to discuss the Property Clause seems very important — the counter argument would be that the papers are not in fact government property, but the question is whether that is right and how the Property Clause affects Congress’s ability to answer it.
The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, by Judge Andrew Oldham, Adam Steene, and John Tienken. “The Ex parte Young cause of action would not have been recognized at the Founding and was instead the product of a gradually developing equitable common law. What’s more, the Article argues, Young fits uncomfortably with modern federal courts jurisprudence, which tends to view non-statutory causes of action (like the one announced by the Young Court) with considerable skepticism.” An important piece of Ex Parte Young criticism, especially for anybody who has read their Bray and their Harrison.
The Military Officer’s Oath to Disobey Lawful But Unethical Orders, by Joshua Braver. For several years I have been wondering, what are the explicit or implicit theories of constitutional authority held by our soldiers? If you ultimately believe, per John Harrison, that constitutional power comes from the barrel of a gun, this could be (or become) a foundational question of our constitutional law. Enter Braver, with “a six-month ethnography at a military college, interviews with writers of Army doctrine, a first-person account from an Army officer who defied an order regarding transgender service members, and an analysis of conflicts between Donald Trump and the Chairman of the Joint Chiefs of Staff.” I still need to ponder the results of this analysis, but I am so glad to read a study of this. Great research project.