Does Congress Have Power to Regulate Late-Term Abortion?

Glenn Reynolds and Jonathan Adler say no.  Here’s Professor Adler: The U.S. of House of Representatives is preparing to consider a bill — the Pain-Capable Unborn Child Protection Act (PUCPA) — that would prohibit most abortions performed after 20 weeks from conception.  … … [E]ven if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a…

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Did the Senators’ Letter to Iran Concede Too Much?

At Opinio Juris, Julian Ku thinks maybe it did.  I agree. As background, 47 U.S. Senators took the unusual step of sending a letter to Iran explaining how the U.S. Constitution works with regard to international agreements.  Again via Professor Ku, here is the core of the letter: [U]nder our Constitution, while the president negotiates…

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Boehner’s Plan for Netanyahu to Address Congress is Unconstitutional

As has been widely reported, House Speaker John Boehner has invited Israel’s Prime Minister Netanyahu to address the U.S. Congress.  If Congress does host the speech, would it be unconstitutional?  Peter Spiro at Opinio Juris suggests that it would.  I agree.

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Originalism and the Two Narratives of Halbig

Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges “established by [a] State” and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress’ intent.

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National ‘Harmony': An Inter-Branch Constitutional Principle and its Application to Diversity Jurisdiction

Jesse Cross (Independent) has posted National ‘Harmony': An Inter-Branch Constitutional Principle and its Application to Diversity Jurisdiction (Nebraska Law Review, Vol. 93, p. 501, 2014, Forthcoming) on SSRN. Here is the abstract: Most constitutional interpretation continues, in the words of John Hart Ely, to be “clause-bound” in nature: it presumes that each constitutional clause can be studied…

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