Skip to content


Mark Tushnet

  • Can Trump build his border wall on his own? Here’s what the experts are saying

    January 9, 2019

    President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

  • National Emergencies And The Limits Of Executive Power

    January 8, 2019

    President Donald Trump will address the nation this evening to talk about what he calls “the Humanitarian and National Security crisis on our Southern Border.” ...  So can the president get funding for the wall without Congressional approval? We’re unpacking the legal arguments for and against that process. GUESTS Mark Tushnet, Law professor, Harvard Law School. Matthew Dallek, Associate professor of political management, Graduate School of Political Management at The George Washington University; author of “Defenseless Under the Night: The Roosevelt Years and the Origins of Homeland Security”  

  • Explainer: Trump’s emergency threat on wall risks dual legal challenge

    January 7, 2019

    President Donald Trump would almost certainly face a legal challenge if he carries out his threat to get funding for a U.S.-Mexico border wall by declaring a national emergency and circumventing Congress’s purse-strings power. Legal scholars said it was unclear exactly how such a step would play out, but they agreed that a court test would likely focus on whether an emergency actually exists on the southern border and on the limits of presidential power over taxpayer funds. ... Mark Tushnet, a constitutional law professor at Harvard Law School, said, “It’s a very aggressive use of presidential authority. The fact that it’s aggressive doesn’t mean it’s unlawful. But it does mean that it goes beyond the boundaries of what has been done before.”

  • Fact check: What’s a ‘national emergency,’ and can Trump declare one to get his wall?

    January 7, 2019

    Two weeks into a partial government shutdown triggered by an impasse over the money President Donald Trump demanded for his promised border wall, Trump said he could declare a state of emergency and build his wall without congressional approval. ... "The Department of Defense has funds in its account that are not specifically designated for anything. Congress gives them money and says we don't know what’s going to happen over the next year — here’s 100 billion," Harvard Law School Professor Mark Tushnet told NBC News, guessing at an approximate funding amount. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground,” he added.

  • New campaign seeks support for expanded Supreme Court

    October 17, 2018

    A couple of liberal Harvard law professors are lending their name to a new campaign to build support for expanding the Supreme Court by four justices in 2021. The campaign, calling itself the 1.20.21 Project and being launched Wednesday, also wants to increase the size of the lower federal courts to counteract what it terms "Republican obstruction, theft and procedural abuse" of the federal judiciary...Harvard professors Mark Tushnet and Laurence Tribe are joining an effort being led by political scientist Aaron Belkin. He was a prominent advocate for repealing the "don't ask, don't tell" policy that prohibited LGBT people from serving openly in the military..."The time is overdue for a seriously considered plan of action by those of us who believe that McConnell Republicans, abetted by and abetting the Trump Movement, have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us," Tribe said.

  • The case for abolishing the Supreme Court

    October 12, 2018

    ...I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

  • Trump’s notable ‘obstruction’ concession

    September 27, 2018

    In the middle of his lengthy news conference Wednesday at the United Nations General Assembly, President Trump made a somewhat new concession about his conduct vis-a-vis the Russia investigation. “There was no collusion, there was no obstruction,” he said. “I mean, unless you call ‘obstruction’ the fact that I fight back. I do fight back. I really fight back. I mean, if you call that obstruction, that’s fine. But there’s no obstruction, there’s no collusion.”...“I think it would be a real stretch for anyone to include this as evidence of ‘corrupt intent’ or anything like that,” said Harvard Law School professor Mark Tushnet. “On its face, it’s a statement that he is developing a vigorous defense against what he regards as unjustified allegation, and any potential defendant has the right to mount a vigorous defense, and then to tell people that’s what he’s doing.”

  • On the Bookshelf: HLS Library Book Talks, Spring 2018 2

    On the Bookshelf: HLS Library Book Talks, Spring 2018

    August 9, 2018

    The Harvard Law School Library hosted a series of book talks by HLS authors, with topics including Authoritarianism in America, the Supreme Court of India, and Legal Reasoning and Political Conflict. As part of this ongoing series, faculty authors from various disciplines shared their research and discussed their recently published books with a panel of colleagues and the Harvard Law community.

  • The Constitution

    Are there holes in the Constitution?

    July 27, 2018

    To gain a better understanding of some of the issues increasingly in play in today's political climate, the Gazette interviewed Mark Tushnet, Michael Klarman, Steven Levitsky, and Steven Jarding--Harvard faculty members who have expertise in constitutional law and legal history, democratic and authoritarian governments, and American politics.

  • Here’s what 11 experts say about whether President Trump can pardon himself

    June 5, 2018

    President Donald Trump might be dead certain that he has the "absolute right to PARDON myself," but experts are divided. No American president has ever tested the idea. Nor has a court has ever ruled on the question of whether such an extreme action is allowed under the U.S. Constitution. But 44 years ago, when the Justice Department was faced with the possibility that President Richard Nixon might try to pardon himself, a top lawyer in the department in a memorandum to the deputy attorney general said the answer to that question was an unequivocal "No."...Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School: "The constitutional arguments about self-pardoning are ... complex, and no one should have strongly held views about the correct analysis," Tushnet told CNBC.

  • Australian High Court Justice reflects on how legal systems deal with alternative facts

    Australian High Court Justice reflects on how legal systems deal with alternative facts

    April 23, 2018

    Stephen Gageler AC, LL.M. ’87, a justice of the High Court of Australia, returned to Harvard Law School in March to meet with faculty members, participate in classes, and speak on 'Alternative Facts in the Courts.'

  • Could lying about trying to fire Mueller put Trump in even more hot water?

    January 29, 2018

    Even as President Trump's falsehoods go, this one was pretty blatant: Two months after he unsuccessfully tried to fire Robert S. Mueller III, Trump denied that he had even considered doing such a thing...Another constitutional law expert, Mark Tushnet of Harvard University, said it would be a “stretch” to say that such lies inherently violate a president's duty to faithfully executive the laws. But he said it could play into an obstruction case. Another constitutional law expert, Mark Tushnet of Harvard University, said it would be a “stretch” to say that such lies inherently violate a president's duty to faithfully executive the laws. But he said it could play into an obstruction case.

  • The case against court-packing

    November 27, 2017

    In recent months, prominent legal scholars on both sides of the political spectrum have proposed court-packing plans, or at least urged reconsideration of the longstanding political norm against court-packing. If such ideas take hold, it will be a very dangerous development... But in his most recent post on this subject, [Mark] Tushnet notes – with admirable candor – that “[t]he rationale is not (on the surface) to ‘seize control of the judiciary'” (emphasis added). That, of course, suggests that “seizing control” is a major part of the rationale beneath the surface.

  • Legal experts split on if NFL can punish for anthem protests

    October 12, 2017

    Jerry Jones may want to bench Dallas Cowboy players who don't stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football...The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be "fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position," Harvard Law School professor Mark Tushnet said.

  • Chattanooga man loses his job after sitting during national anthem at a weekend event

    October 10, 2017

    A man says he lost his job because of the stance he took at an event that NewsChannel 9 sponsors. The termination comes during a national conversation about respect for the American Flag...One Harvard Law School Professor we talked to says the law in Tennessee is written so that employers like 9Round can run their businesses however they want. "Employers are entitled to fire people what's known as "at will." That is for any reason they have, or for no reason at all," Mark Tushnet said.

  • Harvey Weinstein Has No Case Against the New York Times, Legal Experts Say

    October 10, 2017

    Hollywood producer Harvey Weinstein has said he plans to sue the New York Times because the paper only gave him two days to respond to allegations that he sexually harassed women for decades. Does he stand a chance in court?...“The short answer is that he’s almost certainly a public figure who can prevail only if he shows that the paper acted with reckless disregard of whether the story was true or false,” Harvard Law professor Mark Tushnet told TheWrap. “Departing from journalistic practices by not giving him ‘enough’ time to respond almost certainly isn’t enough to show reckless disregard.”

  • Thurgood Marshall: The soundtrack of their lives

    October 2, 2017

    Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

  • Future Colin Kaepernicks, Beware: You Can Get Fired for Political Speech

    September 28, 2017

    It doesn’t look like any NFL players will be disciplined for kneeling or locking arms in protest during the playing of the National Anthem. But First Amendment experts say most employees can be fired from many jobs for exercising their freedom of speech...But government employees are in a different position, Harvard Law professor Mark Tushnet told TheWrap. He said that under the First Amendment, government workers who speak about public policy can’t be fired unless their speech interferes with their jobs — by provoking fights, for example. “Typically, though, governments aren’t able to make that showing,” he said.

  • Do you support Colin Kaepernick? Read this before making a First Amendment political protest on the job

    September 26, 2017

    ...But could everyday workers be fired for expressing their opinions at the office?...The short answer: If you’re not a government employee: No...But it doesn’t necessarily protect private-sector employees who make statements or donations in favor of causes their employers disagree with, Mark Tushnet, a professor of law at Harvard Law School, previously told MarketWatch. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. “That includes disagreement with what they say in public,” Tushnet said.

  • What the Constitution says Berkeley can do when controversial speakers come knocking

    September 22, 2017

    An op-ed by Mark Tushnet. Next week is “Free Speech Week” at the University of California Berkeley. Conservative speakers, some very incendiary, are scheduled to appear in public spaces — the storied Sproul Plaza, the nearby Mario Savio Steps — offering their views on feminism, Islam, and more. Maybe the organizers really want to gather an audience that will listen to what the speakers have to say — the list seems quite fluid, but the names of alt-right provocateur Milo Yiannopoulos, anti-Islamic polemicist Pamela Geller, and former White House strategist Steve Bannon have been bandied about — and exit with changed minds. Mostly, though, they want to lay down a marker at what they regard as a center of intolerance for conservative views. And they probably expect some disruptions that will, they hope, discredit their opponents.

  • Ordained and established: HLS scholars dissect the framers' contributions

    Ordained and established: HLS scholars dissect the framers’ contributions

    September 18, 2017

    On Sept. 17, 1787, the framers of the U.S. Constitution gathered to sign the historic document created to unite a group of states with different interests, laws and cultures; today, HLS faculty voices are providing us with history, interpretation and critical analysis of that document.