People
Mark Tushnet
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Roberts court tempers conservative expectations
July 13, 2020
The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court...The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship...What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives' votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future...While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts' restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.
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Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon...Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”
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Donald Trump will not go gentle into that good night: he will rage, rage, rage-tweet against the dying of his might. Indeed, he is already doing so. After a humiliating turnout at Saturday’s rally in Tulsa, Oklahoma – which capped one of the worst weeks of his presidency – Trump’s re-election chances look shakier by the day. Rattled and belligerent, he seems to be gearing up to contest a defeat in November...But Trump does not plan to lose. One reason he may be so obsessed with election-rigging is that he is doing his best to rig the election himself. Earlier this year, the Trump campaign launched a multimillion-dollar legal battle to stop the Democrats making it easier to vote during the pandemic by, for example, expanding mail-in voting. Trump may be deluded about a lot of things, but he seems to realise that the greater the number of people able to vote, the worse his chance of re-election. He told the politics site Politico last week that losing the lawsuits could cost him a second term. If my wildest dreams come true and Trump loses in November, it is, as his recent tweets make clear, almost inevitable that he will contest the results. Whether he is able to do this in court rather than just by screaming into the void depends on how close the results are in important states. “Close” is subjective – “I’d guess that Trump would claim ‘close’ if the margin is less than 10,000 – no matter the size of the state,” says Mark Tushnet, a constitutional law expert at Harvard. But even if he is able to demand a recount, Trump cannot barricade himself in the White House for ever.
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Popular Opinion
May 20, 2020
Tushnet advocates for a new constitutional order that would move away from “judicial supremacy" and instead focus on empowering ordinary people to shape Americans’ understanding of the meaning of the Constitution.
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‘What’d You Miss?’
May 11, 2020
Scarlet Fu and Romaine Bostick bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street. Today's show tackles the impact of the coronavirus on real estate, movie theaters and the markets Guests Today: Frances Donald of Manulife Asset Management, Mark Tushnet of Harvard Law School, Benno Dorer of Clorox, Diane Ramirez of Halstead Real Estate, Tim League of Alamo Drafthouse Cinema.
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U.S courts won’t block governors’ stay-at-home-orders. At least not yet. With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19...The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts... “Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right -- yes for religious services, no for beauty parlors, etc.” The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.
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The federal government needs to take a role in ‘advising governors about how they can serve the national interest’
April 16, 2020
President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.
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Harvard Law expert says Supreme Court case poses major threat to school voucher programs
January 21, 2020
On January 22, the Supreme Court heard arguments in Espinoza v. Montana Department of Revenue, a case that may dramatically impact the ability of states to provide public funding to private, religiously-affiliated schools. In advance of the arguments, Harvard Law Today sat down with Professor Mark Tushnet to preview the case.
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Will Democrats break democracy in a bid to fix it?
January 3, 2020
It was early last year and Pete Buttigieg, still a bit player in the Democratic presidential race, was taking questions from the audience after a book event in Philadelphia...a man stood up in the back and made a rather audacious ask: "Would you support a packing of the courts — to expand the Supreme Court by four members?”...Buttigieg offered a surprising reply. “I don’t think we should be laughing at it," he said. "Because in some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today"...The comment turned into a bit of a moment for the then little-known mayor of South Bend, Ind. Lefty Twitter declared itself impressed. The reaction spoke to a growing desire, in some corners of the party, for Democrats to play more of what scholars call “constitutional hardball,” using tactics that are technically legal, but break with decades- and even centuries-old traditions of fair play...Mark Tushnet, A Harvard law professor, coined the phrase “constitutional hardball” in an obscure academic journal in 2004. He says the increasingly aggressive use of the filibuster to block judicial nominations struck him as a noteworthy break from what had come before.
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Dems eye taking fight over McGahn testimony to impeachment trial
November 27, 2019
Legal experts say the fight over whether White House counsel Don McGahn must testify under subpoena before Congress could be settled at the Senate impeachment trial before it finishes its path through the courts. A federal judge on Monday ruled against the Trump administration, deciding that McGahn must comply with a House Judiciary Committee subpoena seeking his testimony... “Technically, the Senate sets its own rules, including evidentiary ones, and has the power to reject the presiding officer's rulings by majority vote,” said Mark Tushnet, a professor at Harvard Law School. He added that there’s no guarantee Roberts would be willing to go along with Democrats’ requests for witnesses, even in light of Monday’s ruling against the Trump administration. “The McGahn ruling won't matter one way or the other, except to the extent that Roberts finds its reasoning persuasive,” Tushnet said. “And it may be worth noting that Judge Brown Jackson has a pretty good reputation as a careful — though of course liberal — judge.”
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McCulloch v. Maryland: Two centuries later
September 23, 2019
On the 200th anniversary of McCulloch v. Maryland, HLS Professor Mark Tushnet reflects on the 1819 case that paved the way for the modern administrative state and established the supremacy of federal over state law.
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The Obamas Want ‘Higher Ground.’ Someone Got There First.
September 11, 2019
Hanisya Massey, the owner of Higher Ground Enterprises in Covina, Calif., first heard from a lawyer for Higher Ground Productions early this summer. Barack and Michelle Obama wanted to trademark their company’s name, but the United States Patent and Trademark Office had deemed it too similar to the mark Ms. Massey registered in 2017 for her computer training company. Higher Ground Productions was looking to strike a deal. ... A few weeks ago Higher Ground Productions filed a petition to cancel Ms. Massey’s trademark. Rebecca Tushnet, a Harvard Law School professor and an expert in intellectual property law, said in an interview that the goal of this move would be to determine whether Ms. Massey is actively and regularly using the trademark to conduct business. The Obamas’ filing starts a fact-intensive inquiry that could take years to sort out. “If there’s not sufficient use of the mark, then the registrant has no rights and the Obamas can go ahead,” Ms. Tushnet said. If there is sufficient use, she added, Ms. Massey could have a potential trademark infringement claim.
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Presidential Power Surges
July 17, 2019
Particular moments in history and strategic breaks with unwritten rules have helped many U.S. presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be.
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Presidential Power Surges
July 9, 2019
Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].
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Collaboration zone
April 26, 2019
Library event provides unique opportunity for faculty-student interaction.
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Video: Unexampled Courage
April 5, 2019
Harvard Law School recently hosted Judge Richard Gergel, U.S. District Judge of the U. S. District Court for the District of South Carolina, for a talk on his book, "Unexampled Courage,” and a discussion with HLS professors Randall Kennedy, Kenneth Mack and Mark Tushnet.
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Rep. Devin Nunes (R-CA) is suing Twitter. More specifically, Nunes is suing Twitter, a Republican strategist, and two parody Twitter accounts, one purporting to be Nunes’s mother, the other purporting to be Nunes’s cow. (The account is @Devincow). First reported by Fox News, the complaint seems to be part of a plan almost destined to backfire spectacularly in the public eye: one of the more combative and well-known figures in Congress (particularly for his defenses of President Donald Trump) deciding to sue a notoriously free-wheeling social media platform, two parody Twitter accounts, and a Republican operative who uses it frequently for $250 million over tweets like these. ... But the question isn’t necessarily “Is Nunes’s lawsuit shambolic,” but “What does Nunes hope to achieve with his shambolic lawsuit?” So I spoke with Mark Tushnet, a First Amendment professor at Harvard Law School. After going through the complaint, Tushnet said that Nunes’s only real legal claim against Mair is for libel — a written statement that is harmful to someone else’s reputation. And because Nunes is a public figure, the standard for libel is higher. As Tushnet said, “[Nunes] has to show that the defendants made false statements of fact either knowing that they were false or with reckless disregard of their truth or falsity.”
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States File Suit Against Trump Administration Over Wall Emergency
February 19, 2019
Sixteen states on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. ...The states’ best chance could be to argue that the border wall doesn’t meet the statutory definition of a military construction project, as the president asserts, Harvard law professor Mark Tushnet said.“It’s not a slam dunk for them,” he said, “But there’s a decent chance they will ultimately prevail.”
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“An Unusual Situation”: Experts Weigh in on Trump’s National Emergency Declaration
February 18, 2019
After weeks of sparring with Congress, President Donald Trump invoked a national emergency Friday in an attempt to secure money for a barrier along the United States’ border with Mexico. The declaration came a day after the passage of a bipartisan spending bill that caps funding for the wall, a key Trump campaign promise, at just under $1.4 billion.... But declarations like Obama’s have not been wielded as a means to skirt Congress over funding disputes. “This is an unusual situation … because here a president asked for something and Congress said no, essentially, and now he’s going to declare an emergency to do what he couldn’t get Congress to do,” said Harvard Law professor Mark Tushnet. “That is new.”
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Legal challenges to Trump emergency declaration face uphill battle
February 18, 2019
Democratic lawmakers, states and others mulling legal challenges to President Donald Trump’s national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said. ...Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then. “My guess is the money, the significant amount of money, won’t flow before the 2020 election,” Harvard Law School professor Mark Tushnet said.
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Let’s say Trump declares a national emergency. What happens next?
February 7, 2019
An op-ed by Mark Tushnet: If Congress doesn’t come up with an appropriations bill funding his beloved wall, can President Trump declare a national emergency and build the wall anyway? The answer depends on law and politics. The Constitution is the starting point. It says that the government — even the president — can’t spend money unless Congress passes a law authorizing the spending. Without a bill funding the wall, where can the president find the money? Several places, it turns out. The National Emergencies Act says that a presidential declaration of an emergency triggers a bunch of other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” There’s a pot of about $10 billion available under that provision. Another allows him to divert the emergency money already appropriated for disaster relief.