Mark Tushnet

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."

On Sunday evening, in a time slot perfectly orchestrated to capture Golden Globes viewers and those aimlessly scrolling on social media, Kendall Jenner revealed – by way of a much-hyped announcement – that she is the newest face of Proactiv. In furtherance of the undoubtedly big-money endorsement deal, Jenner and Proactiv released a video promoting in which the 23-year old model promotes the 23-year old skincare company, the latter of which is known for its affordable acne solutions and longstanding direct-to-consumer subscription model.   ... As Rebecca Tushnet, a Harvard Law School professor specializing in false advertising (among other things), told TFL, “Endorsers generally have to be truthful about their use of the product they endorse.” In particular, she points to the Federal Trade Commission’s guidelines, which state, “When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given.”  

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.”

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”  

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.”

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.

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.

...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.

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.”

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.

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.

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.

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.

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.

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 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.

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.