The US law permitting permanent expatriates to vote in federal elections needs to be placed on a sturdier constitutional footing

US Citizens have a right to vote in federal elections in their former states even if they have permanently left the country. Brian Kalt argues that this right, and the Uniformed and Overseas Citizens Absentee Voting Act from which it flows, has constitutional problems given that those who have left are no longer ‘people of the state’. He writes that Congress cannot simply rewrite states’ voter-eligibility requirements as it pleases. He suggests that to address the problem, Congress could establish territory-style representation in the form of non-voting House delegates or piggyback reforms on to the proposed National Popular Vote Interstate Compact

Swearing in the Phoenix: Toward a More Sensible System for Seating Members of the House of Representatives at Organization

Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House. This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified-or, failing that, to the party that is more adept at parliamentary machinations. This nightmare is not completely hypothetical; the House once witnessed a power grab much like this-and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House's legitimacy, and threaten the House's already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two

Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality System

mpeachment is not the most quotable of subjects, but in April 1970, House Minority Leader Gerald Ford managed to make it so. Spearheading a doomed attempt to impeach Supreme Court Justice William 0. Douglas, Ford famously said that an impeachable offense is "whatever a majority of the House of Representatives considers to be at a given moment in history," adding that "conviction results from whatever ... two-thirds of the [Senate] considers to be sufficiently serious to require removal of the accused from office."' This idea is sometimes rendered more simply as "impeachment is whatever the House of Representatives says it is, and removal is whatever the Senate says it is."2 Ford's statement has garnered plenty of criticism over the decades, because it seemingly ignores the Constitution's definition of impeachable offenses-high crimes and misdemeanors ("HCMs")-and substitutes Congress's political whim.

Section Four of the Twenty-Fifth Amendment: Easy Cases and Tough Calls

I have always liked the old joke about the professor attending a presentation on a cure for cancer. During the Q & A he raised his hand and said, "I am sure that will work perfectly in practice . . .but how would it work in theory?" I enjoy theoretical discussions as much as the next person, but I am very happy to be here discussing Section 4 of the Twentyfifth Amendment, one of the most practical provisions in the Constitution. The potential practical effects of Section 4 loom so large that when people talk about "the Twenty-fifth Amendment" nowadays, they are generally referring only to Section 4, even though it is the only section of the amendment that has never been used.1 In most constitutional law cases, the question is, "Can the government do this thing?" For constitutional procedures like Section 4, though, the most consequential question is, "How would this actually play out-in practice?" That will be my focus today

The Many Misconceptions about Section 4 of the Twenty-Fifth Amendment

Among the many perks of being a law professor is the platform it provides. When I am fired up about something, I can write about it-an oped, an article, or a book-and get it published. Such was the case in 2018. I got so tired of reading posts on social media misunderstanding Section 4 of the Twenty-Fifth Amendment that I resolved to write a book. And I did.' Law professors also know that just because you write something does not mean that people will read it, understand it, and agree with it. Misconceptions about the Twenty-Fifth Amendment still abound. But I still like to chip away at them, putting as much good information out there as I can. That is why I am here today. I am going to address five common misconceptions about Section 4 of the Twenty-Fifth Amendment. Some of the things I will address are very basic. Others are more complicated. But all are too common, and given what is at stake here-control of the presidency in a crisis-it would be very helpful to the country if the public had an accurate understanding of these things

Impeachment and Its Discontents

What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.” I am not a fan of failed or futile presidential impeachments; I do not “believe” in them. Nevertheless, I have seen them done three times now. All of this is, in other words, not the sort of purely theoretical construct in which law professors often traffic. As an actual phenomenon – a tangible political fact, not an abstract legal one – failed and futile impeachments need to be analyzed and not just dismissed out of hand. This Article will do that: criticizing failed and futile presidential impeachments, but finding defensible principles at their core and suggesting that censure offers a better way to vindicate those principles. Part II will argue that a presidential impeachment resulting in an acquittal might serve some valid purposes. At best, however, these purposes are greatly diminished by a failed impeachment, and, at worst, they might be disserved entirely. Part III will consider what has driven the House of Representatives in recent decades to become so much more willing to pursue presidential impeachments that are unlikely to succeed. Part IV will conclude by suggesting that the House’s impulses are better served by censure than by futile impeachment

Pardon Me: The Constitutional Case Against Presidential Self-Pardons

Article published in the Yale Law Journal

Three Levels of Stare Decisis: Distinguishing Common-law, Constitutional, and Statutory Cases

Article published in the Texas Review of Law & Politics

The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment

Article published in the Texas Review of Law & Politics