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Mark Tushnet

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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.

  • ‘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.

  • Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

    May 7, 2020

    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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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 TushnetMichael KlarmanJack GoldsmithDaphna Renan, and Neil Eggleston].

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    Collaboration zone

    April 26, 2019

    Library event provides unique opportunity for faculty-student interaction.

  • Video: Unexampled Courage 2

    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.

  • Rep. Devin Nunes’s bizarre $250 million lawsuit against Twitter, explained

    March 20, 2019

    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.”

  • 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.”

  • “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.”

  • 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.

  • 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.

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    Faculty Books in Brief: Winter 2019

    January 29, 2019

    With the increased use of a massive volume and variety of data in our lives, our health care will inevitably be affected, note the editors of a new collection, one of the recent faculty books captured in this section.

  • Whither that wall

    Whither that wall

    January 11, 2019

    President Trump may be able to build a wall along the Mexican border, Harvard analysts say, but then the ripples will widen.

  • Whither that wall

    January 11, 2019

    What started as a touchpoint for presidential candidate Donald Trump to visualize immigration concerns has become the linchpin behind a government shutdown and a possible legal challenge to sweeping presidential power. ...Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School: "Courts would allow leeway, but then there’s the public. If we think about what the courts would say if the president declared an emergency, the answer would be that the courts will give the president a great deal of discretion and leeway in his evaluation of whether there is an emergency. That’s different from asking whether, as a fundamental constitutional matter, there are standards for determining whether there’s an emergency and, in particular, whether a president can declare an emergency without having substantial reasons for characterizing the situation as requiring immediate, urgent attention. The courts will enforce this standard. As a matter of fundamental constitutional principle, the president has to offer reasons to the public explaining why this is something that requires urgent attention. He would have a decent case defending [an emergency] declaration in court. He clearly has more difficulty defending it before the public — and the latter is constitutionally relevant."