David J. Barron

The Honorable S. William Green Visiting Professor of Public Law

2016-2017

Biography

David Barron is a Circuit Judge on the United States Court of Appeals for the First Circuit, and is The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School. He graduated from Harvard College in 1989 and Harvard Law School in 1994. From 1989 to 1991, he worked as a newspaper reporter. After graduating from law school, he clerked for Judge Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit from 1994 to 1995, and for Justice John Paul Stevens of the United States Supreme Court from 1995 to 1996. He then worked as an attorney advisor for the Office of Legal Counsel of the United States Department of Justice from 1996 to 1999. In 1999, Judge Barron became an Assistant Professor at Harvard Law School. He was promoted to Professor in 2004. He rejoined the Justice Department as Acting Assistant Attorney General from 2009 to 2010. He then returned to the Harvard Law School faculty in 2010 and was named The Honorable S. William Green Professor of Public Law, and served until his appointment to the federal bench in 2014.

Areas of Interest

David J. Barron, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster 2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Military, War, & Peace
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
,
Legal History
Type: Book
Abstract
A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war. The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress. Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.
David J. Barron, Foreword, Blue State Federalism at the Crossroads, 3 Harv. L. & Pol'y Rev. 1 (2009).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Federalism
,
Politics & Political Theory
Type: Article
David J. Barron, Foreword, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo. Wash. L. Rev. 1095 (2008).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
,
Separation of Powers
Type: Article
David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
National Security Law
,
Military, War, & Peace
Type: Article
Abstract
Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. In the companion Article, Professors Barron and Lederman described the structural forces responsible for this shift in the ground of debate and demonstrated that evidence from the Founding era does not reveal an original understanding that the Commander in Chief enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they move the story forward and systematically examine how the three branches have actually considered and treated this issue from 1789 to the present day. They examine those cases in which the President has asserted or relied upon a claim of preclusive war powers. They also review the discussions of this issue that have appeared in Supreme Court opinions; in major debates on the floor of Congress; and in the leading constitutional and war powers treatises, articles, and books of the past two centuries. This historical review shows that the view embraced by most contemporary war powers scholars – namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns – is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.
David J. Barron, Fighting Federalism with Federalism: If It's Not Just a Battle Between Federalists and Nationalists, What Is It?, 74 Fordham L. Rev. 2081 (2006).
Categories:
Government & Politics
Sub-Categories:
Federalism
,
Supreme Court of the United States
Type: Article
David J. Barron, Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218 (2006).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
State & Local Government
Type: Article
Abstract
This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.
David J. Barron, Privatizing the Constitution: State Action and Beyond, in The Rehnquist Legacy 345 (Craig M. Bradley ed., Cambridge Univ. Press 2006).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
State & Local Government
,
Judges & Jurisprudence
Type: Book
David J. Barron, Reclaiming Federalism, Dissent, Spring 2005, at 64.
Categories:
Government & Politics
Sub-Categories:
Federalism
,
State & Local Government
Type: Article
Abstract
The revival of states' rights may be the most substantial accomplishment of the Rehnquist Court's conservative majority. Cases concerning federalism do not regularly capture the newspaper headlines of hot-button constitutional disputes, but the jurisprudence of the Rehnquist majority has, in fact, been in retreat recently when it comes to affirmative action, abortion, school prayer, gay rights, and even the death penalty. In each area, conservative justices defected, creating de facto liberal majorities. When it comes to states' rights, by contrast, the conservative majority has changed constitutional law dramatically. Not long ago, few propositions could be asserted more confidently in law-school classrooms than that states enjoy almost no constitutional protection from congressional power. Now, the talk concerns increasing restraints on federal power. What may be called "Rehnquist Federalism" has not yet made a revolution, and defections occur in federalism cases, too. But Rehnquist Federalism has changed the legal landscape by limiting congressional efforts to provide everything from effective remedies against discrimination to enforcement of federal statutory guarantees of overtime pay-all in the name of "state sovereignty" and despite the arguments of the four liberals on the Court.
David J. Barron, Gerald E. Frug & Rick Su, Overruling Home Rule, Commonwealth Mag., Winter 2004, at 15.
Categories:
Government & Politics
Sub-Categories:
State & Local Government
Type: Article
David J. Barron, The Community Economic Development Movement: A Metropolitan Perspective, 56 Stan. L. Rev. 701 (2003)(reviewing William Simon, The Community Economic Development Movement, Law, Business, and the New Social Policy (2001)).
Categories:
Government & Politics
Sub-Categories:
State & Local Government
Type: Article
David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255 (2003).
Categories:
Government & Politics
Sub-Categories:
State & Local Government
Type: Article
Abstract
Participants in the debate over suburban sprawl regularly refer to "home rule," by which they mean the autonomy that state law supposedly now confers on cities and suburbs. Opponents of sprawl assert that American local government law protects home rule, which results in socially destructive development because it allows localities to pursue their own selfish ends. Therefore, they seek to reduce home rule and to shift policy power to region-or state-level actors. Defenders of home rule, by contrast, celebrate the recognition of home rule for promoting local freedom and choice. Thus, they are wary of anti-sprawl reform. In this Article, Professor Barron argues that this debate wrongly equates home rule with local legal autonomy and, for this reason, that anti-sprawl reformers are unduly hostile to local power. Professor Barron begins by showing that the late-nineteenth-century urban reformers involved in the first home rule movement did not seek local legal autonomy. Rather, they sought - through competing packages of grants of, and limits on, local power - to enable cities to promote visions of urban governance that the prior legal regime had foreclosed. Drawing on this more complex conception of home rule, Professor Barron then shows that what now passes for home rule is itself a mix of grants of, and limits on, local power. Indeed, he argues, in its current form, home rule does more to frustrate the ability of cities and suburbs to pursue anti-sprawl policies than to protect local autonomy. Professor Barron then sets forth an approach to anti-sprawl reform that seeks to reclaim, rather than reduce, home rule. To that end, he explains how state law now limits the ability of local governments to fight sprawl, partly through constraints inscribed in the very state constitutional provisions that purport to grant home rule and partly through state law's recognition of certain local legal entitlements. Finally, he identifies legal changes that could expand the power of cities and suburbs to address regional problems like sprawl.
Gerald E. Frug & David J. Barron, The Census As a Call to Action, 29 Fordham Urb. L.J. 1387 (2002).
Categories:
Government & Politics
Sub-Categories:
State & Local Government
Type: Article
David J. Barron, A Localist Critique of the New Federalism, 51 Duke L.J. 377 (2001).
Categories:
Government & Politics
Sub-Categories:
Federalism
,
State & Local Government
Type: Article
David J. Barron & Eric M. Zolt, When Local Control Goes Out of Control, Wash. Post, July 15, 2001, at B5.
Categories:
Government & Politics
,
Taxation
Sub-Categories:
State & Local Government
,
Taxation - Federal Estate & Gift
,
Taxation - State & Local
Type: News
David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201 (2001).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
David J. Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-enforcement Power, 63 J.L. & Contemp. Probs. 61 (2000).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Supreme Court of the United States
Type: Article
Abstract
Barron challenges the court-centered approach to the scope of the President's non-enforcement power. He contends that a President, notwithstanding that he considers himself bound by the Supreme Court's constitutional interpretations, should resolve three distinct questions in determining whether he may faithfully decline to enforce a statute by virtue of its unconstitutionality.
David J. Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487 (1999).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
State & Local Government
,
Federalism
Type: Article
David J. Barron, Note, Civic Republican Administrative Theory: Bureaucrats as Deliberative Democrats, 107 Harv. L. Rev. 1401 (1994).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Administrative Law & Agencies
Type: Article
David J. Barron, Book Note: Democracy and Dishonesty, 106 Harv. L. Rev. 792 (1993)(reviewing Joseph Goldstein, The Intelligible Constitution: The Supreme Court’s Obligation to Maintain the Constitution as Something We the People Can Understand (1992)).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
Type: Article
David J. Barron, Leading Cases: The Supreme Court, 1992 Term, 107 Harv. L. Rev. 144 (1993).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article

Education History

Current Courses

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