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The Constitution identifies three forms of supreme law - the Constitution, laws, and treaties - and specifies procedures for their adoption. Yet it says little about timing. It does not seem to address whether the chambers of Congress must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether a President may make a treaty decades after the Senate consents to its ratification. This Article is the first to offer a comprehensive account of existing federal lawmaking practices as they relate to time. It also considers how those timing practices have evolved over our nation's history. The Article argues that the Constitution requires some measure of synchronicity within each form of lawmaking. For statutes, all the steps requisite for a bill to become law must occur within a single congressional session, a rule immanent in the Constitution's concept of a "session." If all steps do not occur within one session, the slate is wiped clean. For constitutional amendments, the constraints are more complicated and less definite. Both chambers of Congress must pass a proposed amendment within one session. Moreover, once Congress sends an amendment to the states, it lapses if the requisite number of states does not ratify it within a reasonable period. If the proposal is to become an amendment, it must go back to square one and recommence its journey. Treaties are similarly constrained by a synchronicity requirement. In particular, Presidents must make treaties within a reasonable time after the Senate consents to their ratification. If widely accepted, these assertions would have far-reaching implications for how institutions currently make supreme law. The Article further contends that while the Constitution itself adopts a synchronicity constraint on the three forms of supreme law, the participants in each process also can impose their own more stringent limits on each. Finally, the Article uses this framework to comment on the Equal Rights Amendment and the vexing issues posed by attempts to revive that proposal. [ABSTRACT FROM AUTHOR]

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation's foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact laws necessary and proper for carrying into execution federal powers. We believe that Congress can use this authority to adopt preemption mechanisms that reflect its view of the optimal role of states in international affairs. When it comes to policing state involvement in foreign affairs, Congress, rather than the courts, ought to be in the driver's seat. Critically, Congress can proactively police the states, meaning that it need not wait for state mischief before enacting legislation. To give a sense of the possible and to alter the terms of a debate focused on judicial policing of the states, we recommend several novel mechanisms of preempting or deterring state intervention in foreign affairs and suggest categories of state law that ought to trigger these mechanisms. The precise mix is for Congress to consider based on its own sense of the vices and virtues of state forays in international affairs and of our existing foreign affairs federalism. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's ruling in the 2015 case Zivotofsky v. Kerry which deals with territorial and constitutional disputes involving Jerusalem and Israel, as well as America's separation of powers doctrine and a U.S. President's exclusive power to recognize other nations and governments. American foreign relations law and Israeli-U.S. relations are examined, as well as the U.S. Congress' powers and the constitutionality of America's passport policy.

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented federal legislative power to prevail in domestic wars. The "Sweeping Clause" grants Congress far-reaching authority to carry federal powers--legislative, executive, and judicial--into execution. Using this authority, Congress may suspend the ordinary forms of government and some civil liberties as a means of implementing federal powers. For example, Congress may suspend the privilege of the writ of habeas corpus or authorize military trial of civilians if it supposes that such measures will help ensure that federal authority extends throughout the United States. Hence Congress has something of a domestic wartime power that permits it to enact laws meant to defeat rebels and invaders and thereby ensure the continuity of the Constitution and the federal and state governments that sustain it. [ABSTRACT FROM AUTHOR]

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state's laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys general has a duty to defend state law against state and federal challenges, while a second group has no duty to defend state law in such scenarios. A third cohort of attorneys general has a power (and in some cases a duty) to attack state statutes of dubious validity. They may (or must) proactively file suit to obtain judicial resolution of constitutional questions. Given that these duties vary across the states, politicians (including attorneys general) who blithely conclude that all state attorneys general must defend all state laws or, conversely, that all may refuse to defend whenever they believe a state law is unconstitutional evince a lamentable indifference to the power of states to craft an office that suits their particular needs. As the samesex marriage debate reveals, categorical statements about whether state attorneys general must (or must not) defend bars on same-sex marriage are usually little more than self-serving sound bites from elected, politically ambitious attorneys general, intended for constituents focused on policy outcomes rather than legal questions. With Democrats and Republicans squarely divided on issues like same-sex marriage, gun control, and campaign finance, we predict that attorneys general will increasingly seek political advantage by refusing to defend (or insisting on the defense of) laws that divide the parties. We also foresee that failures to defend will be especially likely to occur in states where the attorney general is of a different political party than the governor, legislature, or the preceding attorney general. [ABSTRACT FROM AUTHOR]

The article discusses the emergency powers granted to the U.S. President by the U.S. Constitution, with the author arguing that the original Constitution did not invest the executive with effective powers in the case of crises. Other topics addressed include emergency powers in the late-18th-century English monarchy, martial law, and the U.S. Civil War's impact on executive power.

The article offers information on the significant decision of the U.S. Supreme Court in the case of Marbury v. Madison, in which the court addresses the dispute regarding the failure to deliver commissions to appointees including the U.S. federal judge William J. Marbury. It informs that the U.S. Secretary of State Thomas Jefferson, named the appointments vest before the act of delivering the commission under the onstitutional law of the U.S.

The article discusses U.S. President Barack Obama's apparent change of opinion on the subject of same-sex marriage in America as of November 2012, focusing on an analysis of U.S. constitutional law and the nation's Defense of Marriage Act (DOMA). Obama's previous stance in defense of DOMA is addressed, as well as U.S. Attorney General Eric Holder's declaration in February 2011 that Obama deemed DOMA to be unconstitutional. Obama's opposition to a proposed federal constitutional amendment aimed at banning same-sex marriage is also mentioned.

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice's (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that opportunity as a result of executive enforcement of a law it believes is unconstitutional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President's constitutional vision, which is what the duty to defend is all about. [ABSTRACT FROM AUTHOR]

The article presents a legal analysis and evaluation on why the Incompatibility Clause applies to the Office of the President in the U.S., as asserted by Seth Barrett Tillman. It highlights that under the Incompatibility Clause, a Representative or Senator cannot serve as President while retaining his or her seat in Congress and neither Senator nor Representative could simultaneously remain in the Senate and serve as President. It notes that Tillman supplies no sound historical reasons to support his argument that the President does not occupy an office because he offers no evidence to support his propositions, but merely declares them as fact.

Scholars and politicians insist that declarations of war are relics of the past. As proof, they note that in over two centuries the United States has declared war in a total of five ways and that the nation last declared war over sixty years ago. Perhaps because declarations seem so rare, relatively little scholarly attention has been paid to them. This Article considers the much neglected declaration of war, making two contributions. First, those who assert that Congress has not declared war in sixty years fundamentally misapprehend what it means to "declare war" under the Constitution and what constitutes a declaration of war. Whenever Congress authorizes or commands a war, it has issued a declaration of war, regardless of whether Congress uses the phrase "declare war." This broader conception of what constitutes a declaration of war means that every war sanctioned by Congress in the past half century was a declared war, even though Congress never passed a formal declaration during that period. Second, congressional declarations of war need not be laconic documents that do no more than authorize warfare, leaving tremendous discretion to the Commander in Chief. Instead, Congress can enact detailed declarations, as was typical in the founding era. Among other things, war declarations may constrain the use of military force and may regulate the wartime rights of citizens and foreigners. By exhuming the declaration of war, we belatedly perceive that reports of its death are quite premature. [ABSTRACT FROM AUTHOR]

The essay introduces a taxonomy for defining the scope and features of the powers of the U.S. president so that discussions to be made on the said powers maybe improved. The taxonomy being proposed offers consideration on three general inquiries, namely, the source of presidential power, the potential checks on presidential power, and the exclusivity of presidential power. An elaboration is made on various executive powers like specific powers, vesting clause powers, structural powers, extra-textual powers, removal powers and other powers.

The article focuses on the misunderstood relationship between originalism and popular sovereignty. It contests the interpretive assertion by proponents of popular sovereignty that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the U.S. Constitution was ratified and amended. It states that originalism has no special claim to legitimacy merely because the Constitution was the product of an act of popular sovereignty.

The article examines certain problems regarding the structure and statutes of conventional delegations in the U.S. The positive theory offered by the accounts of conventional delegations is taken into account. Key information about the provision of the Article I, Section 8 of the statutory delegations to increase tax and regulate commerce is presented.

The article discusses the power to remove government officers in the U.S. It was stated that removal has been the center of many well-known constitutional crises and cases. The lack of scholarship that explores whether Congress can remove officers by statute perhaps explains why there are clashing claims related to the subject. is that Congress can enact removal statutes which includes simple removal statutes.

The article comments on the response of Professor Martin Redish to the article of the authors titled "How to Remove a Federal Judge." The authors argue that their article is still the most credible reading to understand the meaning of good behavior, referring to the Good Behavior Clause in Article III of the U.S. Constitution. They state that the argument of Redish to their definition of good behavior is misconceived.

The article comments on the conventional wisdom that impeachment is the sole remedy to remove a federal judge from the position and that its implicit reference is the constitution's grant of good-behavior tenure. The authors argue that the impeachment-only argument has no basis either in the constitutional text or in the history behind that text. They provide construction to the Good Behavior Clause in Article III of the U.S. Constitution.

The article examines the interaction of several powers related to the conduct of war. Theories about the interaction of the U.S. Commander in Chief Clause and Congress's war regulatory powers, are discussed. The controversy over the famous Bybee memorandum is analyzed, as well as the sentiments of the critics of the Bybee memorandum regarding the scope of the executive authority of the U.S. president regarding the advance and retreat of soldiers.

The article examines the constitutional status of customary international law in the U.S. One of the ways that such a law limits the war on terror is that politicians might believe that they are legally obligated to respect international law, including customary international law, in the conduct of the war. According to international law scholars, officials must respect customary international law because the Constitution makes that law part of the supreme Law of the Land.

Criticizes the controversial claims of law professor Larry Kramer that the U.S. Constitution never authorized judicial review and that the founders regarded popular constitutional methods as the exclusive means of safeguarding the Constitution. Failure of the professor to consider constitutional text and structure; Argument against the claim that the Constitution was a special kind of fundamental law; Comments on the historical method of the judicial review.

This article focuses on the nondelegation doctrine in legislative power. The nondelegation doctrine has roots that extend as far back as three centuries. In "The Second Treatise of Government," John Locke listed four constraints on the legislative power. In their recent article, Interring the Nondelegation Doctrine, professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine. In their view, the "legislative power" generally references the right to vote on bills in a legislature along with the other "de jure" powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties "legislators" by giving them the power to vote in the legislature. So when Article 1 of the constitution speaks of "legislative powers," it refers to those powers individually held by federal legislators, including most prominently the right to vote on bills. Furthermore, under their "naive" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor the U.S. Federal Constitution goes further and prohibits broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate legislative power.

Discusses the origins of judicial review in the U.S. Flaws of the assault on judicial review; Discussion of recurring arguments against judicial review; Widespread support for judicial review of state law.

Demonstrates that the theory that the political safeguards may substitute for judicial review cannot comport with the text, structure or original understanding of the United States Constitution. Errors of constitutional structure; Complaints about the judicial review; Original understanding of judicial review.

Explores the federal insider trader regime in the United States. Legality of the insider trading under the regime; Impact of the Rule 10b-5 on liability; Liability upon engagement in Deceptive Trading Theory; Efforts of the Securities and Exchange Commission in mitigating unfair asymmetries.