Category: reason

Grading The Controversial Florida Seminar Paper

Earlier today I wrote about the New York Times expose concerning the grading of a student seminar paper at the University of Florida. I’ve now had a chance to read the paper.

First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.

Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.

Third, I’ll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of “the People.” And, following Verdugo-Urquidez and Heller, “the People” are Americans, and not aliens. But the author doesn’t stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, “whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country.” (I’m not sure anyone would disagree with this point.)

This analysis leads the author to three conclusions. First, the author would read Article IV, Section 4 to permit the states to play a role to prevent the “invasion” of migrants. (This section more-or-less tracks Judge Ho’s concurrence, and arguments advanced by the Trump DOJ.) Second, the author would allow the courts to strictly scrutinize immigration policies that would “dissolve the people and elect another.” Third, the author would subject discrimination against aliens to mere rational basis review. He would also overrule Plyler v. Doe and Wong Kim Ark. The author recognizes that his positions are in tension with the Fourteenth and Fifteenth Amendments. But he cites the longstanding debates about whether these amendments were properly ratified, and whether they are substantive unconstitutional. If these amendments were not ratified, then we are left with the Constitution without the Reconstruction Amendments.

Here is my assessment. The article is laid out backwards. At the very end, the author contends that the Fourteenth and Fifteenth Amendments may have never been properly ratified. And his conception of National Constitutionalism is premised on those two amendments never changing the constitutional order. Or alternatively, he contends that the Fourteenth and Fifteenth Amendment should have no bearing on how immigration policy is understood. But if these points are wrong, then many of his points would not follow.

Were I to have advised the student on the paper, I would have had him reverse the entire theme. At the outset, the author would have the reader assume–at least for purposes of a thought experiment–that the Reconstruction Amendments were never ratified. Then, the reader would imagine that Congress adopted twentieth-century style open immigration laws. Would those laws violate the original Constitution? If the federal government failed to stop the flow of migrants, would the states then have the power under Article IV to repel the invasion? Could courts declare those laws as unconstitutional?

The author does repeatedly refer to a preference for White people, and blocking non-White immigrants. At least in this paper, the Author frames this preference in terms of how the Framers would have understood immigration–I think he accurately describes that history. Now, with the benefit of hindsight, we know that the author was in fact also articulating his own policy preferences. But based on the paper, the author was presenting this thesis as a matter of scholarship.

Where does this leave us? Is this the student note I’ve ever read? No. Was it executed well from a technical perspective? Yes. Was it thoroughly researched? Yes. Did it present a coherent thesis based on history? Yes. Was it well organized? Not really. The article under-developed the core obstacle–the ratification of the Reconstruction Amendments–and doesn’t explain how the Supreme Court would overrule certain landmark precedents. But these sorts of shortcomings are typical of law student papers. What would I give the paper, having never met the student or heard his presentation? Probably a B+ or maybe an A- if I was feeling generous. Then again, I didn’t read any of the other papers in the class, so it is tough to compare. And remember, under the syllabus, the final paper is worth only 65% of the final score, so we do not know what other elements the student contributed. A final grade of A or A+ is well within the bounds of reasonable grading.

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Grading The Controversial Florida Seminar Paper

Earlier today I wrote about the New York Times expose concerning the grading of a student seminar paper at the University of Florida. I’ve now had a chance to read the paper.

First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.

Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.

Third, I’ll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of “the People.” And, following Verdugo-Urquidez and Heller, “the People” are Americans, and not aliens. But the author doesn’t stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, “whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country.” (I’m not sure anyone would disagree with this point.)

This analysis leads the author to three conclusions. First, the author would read Article IV, Section 4 to permit the states to play a role to prevent the “invasion” of migrants. (This section more-or-less tracks Judge Ho’s concurrence, and arguments advanced by the Trump DOJ.) Second, the author would allow the courts to strictly scrutinize immigration policies that would “dissolve the people and elect another.” Third, the author would subject discrimination against aliens to mere rational basis review. He would also overrule Plyler v. Doe and Wong Kim Ark. The author recognizes that his positions are in tension with the Fourteenth and Fifteenth Amendments. But he cites the longstanding debates about whether these amendments were properly ratified, and whether they are substantive unconstitutional. If these amendments were not ratified, then we are left with the Constitution without the Reconstruction Amendments.

Here is my assessment. The article is laid out backwards. At the very end, the author contends that the Fourteenth and Fifteenth Amendments may have never been properly ratified. And his conception of National Constitutionalism is premised on those two amendments never changing the constitutional order. Or alternatively, he contends that the Fourteenth and Fifteenth Amendment should have no bearing on how immigration policy is understood. But if these points are wrong, then many of his points would not follow.

Were I to have advised the student on the paper, I would have had him reverse the entire theme. At the outset, the author would have the reader assume–at least for purposes of a thought experiment–that the Reconstruction Amendments were never ratified. Then, the reader would imagine that Congress adopted twentieth-century style open immigration laws. Would those laws violate the original Constitution? If the federal government failed to stop the flow of migrants, would the states then have the power under Article IV to repel the invasion? Could courts declare those laws as unconstitutional?

The author does repeatedly refer to a preference for White people, and blocking non-White immigrants. At least in this paper, the Author frames this preference in terms of how the Framers would have understood immigration–I think he accurately describes that history. Now, with the benefit of hindsight, we know that the author was in fact also articulating his own policy preferences. But based on the paper, the author was presenting this thesis as a matter of scholarship.

Where does this leave us? Is this the student note I’ve ever read? No. Was it executed well from a technical perspective? Yes. Was it thoroughly researched? Yes. Did it present a coherent thesis based on history? Yes. Was it well organized? Not really. The article under-developed the core obstacle–the ratification of the Reconstruction Amendments–and doesn’t explain how the Supreme Court would overrule certain landmark precedents. But these sorts of shortcomings are typical of law student papers. What would I give the paper, having never met the student or heard his presentation? Probably a B+ or maybe an A- if I was feeling generous. Then again, I didn’t read any of the other papers in the class, so it is tough to compare. And remember, under the syllabus, the final paper is worth only 65% of the final score, so we do not know what other elements the student contributed. A final grade of A or A+ is well within the bounds of reasonable grading.

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Trump’s Iran Air Strikes and the Constitution

B-2 Bomber (Northrop Grumman).

 

Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump’s illegal actions has beneficial consequences.

Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump’s air strikes violate the Constitution:

My longstanding view, developed in a series of articles, is that the Constitution’s original meaning requires Congress to approve any material initiation of military hostilities by the United States.  As explained at length in Textualism and War Powers, that conclusion rests principally on two points:

(1) the original meaning of “declare” war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war.  In the eighteenth-century sense, war could be “declared” by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action — a point noted by Hamilton in The Federalist).

As a result, the Constitution’s assignment to Congress of the power to “declare” war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force.  A wide range of leading members of the founding generation — including Washington, Hamilton, Madison, and James Wilson — described Congress’ power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).

(2) the original meaning of “war” broadly included most uses of sovereign military force, including ones with limited scope and objectives.  An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war — both of which came within Congress’ war power.  The Bas case involved the so-called “Quasi-War” between the U.S. and France in the late 1790s, which consisted only of naval engagements.  Notably, essentially everyone at the time — including advocates of presidential power such as Hamilton and President John Adams — thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).

Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval.  The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome.  Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war).  And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress’ approval under the Constitution’s declare war clause.

As Ramsey notes, there is an argument that relatively small-scale military actions don’t qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn’t apply here. The objective of these strikes – dismantling Iran’s nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan’s 1986 air strike against Libya.

Ramsey also has a compelling response to the argument that this action is legally justified by Iran’s earlier support of terrorist attacks.

Unlike many of Trump’s egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country’s dictator, Moammar Gaddafi. For those keeping score, I condemned Obama’s action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama’s illegal actions don’t justify Trump’s (and vice versa).

Ramsey’s analysis is based on originalism. He suggests there might be a “living constitution” case for justifying such actions, based on “the speed of modern warfare and the exigencies of terrorism and potential nuclear attack.” I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.

In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that “[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” There was no such advance consultation here, even though it was obviously “possible” to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).

The War Powers Act also requires withdrawal of US forces from “hostilities” after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we’ll see if Trump ends up doing so here.

Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.

If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran’s nuclear program, that would be a good thing. If they succeed in overthrowing Iran’s brutal regime, that would be better still. Since coming to power in 1979, Iran’s theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump’s many abuses of power and authoritarian tendencies.

I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.

First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called “friction” is ubiquitous, making prediction difficult. As he also put it, in On War, “everything in war is very simple, but the simplest thing is difficult.” Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.

Second, I have little faith in this administration’s ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn’t guarantee a bad outcome. But it certainly reduces the odds of success.

Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:

The constitutional requirement of congressional authorization is more than just a legal technicality. Not only does it prevent dubious conflicts begun at the behest of a single man; it also increases the chances of success if we do enter a conflict. If the president is required to get congressional authorization for war, he will be forced to build up a broad political consensus behind his decision; that increases the likelihood that we will stay the course until victory is achieved, as opposed to bailing out when difficulties arise.

If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama’s 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his “worst mistake” as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.

Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even “armed hostilities” under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.

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Trump’s Iran Air Strikes and the Constitution

B-2 Bomber (Northrop Grumman).

 

Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump’s illegal actions has beneficial consequences.

Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump’s air strikes violate the Constitution:

My longstanding view, developed in a series of articles, is that the Constitution’s original meaning requires Congress to approve any material initiation of military hostilities by the United States.  As explained at length in Textualism and War Powers, that conclusion rests principally on two points:

(1) the original meaning of “declare” war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war.  In the eighteenth-century sense, war could be “declared” by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action — a point noted by Hamilton in The Federalist).

As a result, the Constitution’s assignment to Congress of the power to “declare” war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force.  A wide range of leading members of the founding generation — including Washington, Hamilton, Madison, and James Wilson — described Congress’ power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).

(2) the original meaning of “war” broadly included most uses of sovereign military force, including ones with limited scope and objectives.  An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war — both of which came within Congress’ war power.  The Bas case involved the so-called “Quasi-War” between the U.S. and France in the late 1790s, which consisted only of naval engagements.  Notably, essentially everyone at the time — including advocates of presidential power such as Hamilton and President John Adams — thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).

Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval.  The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome.  Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war).  And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress’ approval under the Constitution’s declare war clause.

As Ramsey notes, there is an argument that relatively small-scale military actions don’t qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn’t apply here. The objective of these strikes – dismantling Iran’s nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan’s 1986 air strike against Libya.

Ramsey also has a compelling response to the argument that this action is legally justified by Iran’s earlier support of terrorist attacks.

Unlike many of Trump’s egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country’s dictator, Moammar Gaddafi. For those keeping score, I condemned Obama’s action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama’s illegal actions don’t justify Trump’s (and vice versa).

Ramsey’s analysis is based on originalism. He suggests there might be a “living constitution” case for justifying such actions, based on “the speed of modern warfare and the exigencies of terrorism and potential nuclear attack.” I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.

In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that “[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” There was no such advance consultation here, even though it was obviously “possible” to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).

The War Powers Act also requires withdrawal of US forces from “hostilities” after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we’ll see if Trump ends up doing so here.

Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.

If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran’s nuclear program, that would be a good thing. If they succeed in overthrowing Iran’s brutal regime, that would be better still. Since coming to power in 1979, Iran’s theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump’s many abuses of power and authoritarian tendencies.

I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.

First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called “friction” is ubiquitous, making prediction difficult. As he also put it, in On War, “everything in war is very simple, but the simplest thing is difficult.” Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.

Second, I have little faith in this administration’s ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn’t guarantee a bad outcome. But it certainly reduces the odds of success.

Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:

The constitutional requirement of congressional authorization is more than just a legal technicality. Not only does it prevent dubious conflicts begun at the behest of a single man; it also increases the chances of success if we do enter a conflict. If the president is required to get congressional authorization for war, he will be forced to build up a broad political consensus behind his decision; that increases the likelihood that we will stay the course until victory is achieved, as opposed to bailing out when difficulties arise.

If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama’s 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his “worst mistake” as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.

Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even “armed hostilities” under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.

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The New York Times Launches An Unfair Attack On Judge Badalamenti

Yesterday, Richard Fausset of the New York Times published an article “A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award.” This article represents the worst of modern-day advocacy journalism. Fausset obviously has no idea how law school seminars are graded, and made no effort to learn. Moreover, it is pretty clear here that there is an ongoing disciplinary proceeding against the student, so no one at the law school is able to comment. Fausset uses that silence to further sully the reputation of everyone involved.

I’ll start with a personal disclosure. The course in question was co-taught by Judge John Badalamenti. You may not know Judge Badalamenti, but you are probably familiar with a case he argued: Yates v. United States (2014). Yes, Badalamenti, as a federal public defender, successfully argued the fish case before the Supreme Court. I’ve known Badalamenti since then, and have chatted with him over the years. Last fall, I spoke at the originalism conference he organized, which hosted the entire Florida Supreme Court, several members of the Eleventh Circuit, and scholars from across the ideological spectrum. I include these facts to show the high regard that Badalamenti is held in by his community.

In the Fall of 2024, Judge Badalamenti taught a seminar at the University of Florida, titled ADVANCED CONSTITUTIONAL INTERPRETATION: ORIGINALISM AND ITS FOES. The syllabus is available online. (It is not clear if Fausset ever bothered checking it.) The syllabus explains how grades are assigned:

Grades will be based 25% on class participation, 10% on reflection papers, and 65% on final papers.

The paper in question was certainly a large chunk of the final grade, but was not the only factor. As I understand the policy at the University of Florida, the awarding of a “book prize” is not discretionary. It is automatically given to the student with the highest score. And in a small seminar with roughly a dozen students, this book prize is not particularly significant. It is not like a law school wide prize. Howard Wasserman, who teaches at nearby Florida International University, explained:

To people unfamiliar with law school, the phrase “book award” sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition.

The fact that a student received a high grade in a small seminar is not worthy of a New York Times expose. Aren’t there actual problems to write about?

On the merits, the argument that the Constitution, as originally written, favors white people stretches back to the founding, and was articulated by William Lloyd Garrison and others. I, for one, favor the Frederick Douglas and Lysander Spooner approach, but there is a scholarly debate in this area.

The entire premise of the NY Times article is that Judge Badalamenti gave a distinguished prize to an avowed white supremacist. But the timeline undermines the narrative. Again, the class concluded in December 2024. But the student’s relevant social media posts did not arise until February 2025, and the most egregious statements were made in March 2025. Does Fausset bother explaining whether Badalementi was even aware of the student’s comments during the class? No, it is all left to insinuation.

Faussett writes that Badalementi “has earned praise from both liberals and conservatives over the course of his career.” The linked article includes this passage:

The federal judge in Florida overseeing a conservative group’s lawsuit against Target’s LGBTQ+ Pride marketing is a Trump appointee and a member of the Federalist Society, which champions individual liberty and traditional values.

These facts describing US District Judge John Badalamenti, presented against a highly politicized backdrop, suggest a particular political leaning that could influence the way he will rule in the case. What people may not know is that the 49-year-old jurist has liberal supporters, came from a humble upbringing and considers political motivations incompatible with his role as a judge. But defying expectations and challenging assumptions is nothing new for him.

. . . .

The diagnosis shortly after becoming a federal judge was devastating to hear, Badalamenti said. But he found a friend and mentor in another former public defender and US district judge at the time, who later joined the Supreme Court: Justice Ketanji Brown Jackson.

“She mentored me through these difficult times and continues to be a tremendous friend and source of positivity,” Badalamenti said in a follow-up email.

Jackson, whom President Joe Biden appointed to the Supreme Court in 2022, declined to comment through a spokesperson, but the representative confirmed the justice’s friendship with Badalamenti.

Yes, Judge Badalementi is friends with KBJ. And as a federal defender, he spent his career defending people of color. A quick google search shows that he is on the board of Gentlemen’s Quest. This group helps high risk high school students gain entry to college. A quick review suggests that Judge Badalamenti is the only white person on the board. Moreover, the Senate Judiciary Committee questionnaire states that he “served as a volunteer mentor for inner city middle school students in the Tampa community.”  This is not a white supremacist. Did Fausset even ask Chat GPT about Badalamenti?

These hits on conservatives are so predictable and unfortunate. They slander a good judge who spent his career fighting for the rights of all people, all in service of an attack on originalism. Look at Fausett’s biography:

I write about conservative culture and gun issues, as well as the ongoing election interference case against former President Trump and some of his allies in Fulton County, Ga.

Faussett was asked to investigate only one side of the spectrum. This is not journalism. As Rush would say, these are activists with bylines.

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The Attack on Iran Is Unlawful

Hours after the U.S. bombed several sites in Iran, President Donald Trump called the operation a “spectacular military success.”

Whether or not that turns out to be true, the attack looks rather different as a legal matter. Trump appears to have significantly overstepped his authority, as the attack was not authorized by Congress and was not in response to an attack on American soil or American troops. The best the White House has been able to come up with so far is that Trump acted under the legal authority “afforded to him as Commander in Chief,” as a White House official told Real Clear Politics on Saturday night.

Sorry, but that simply isn’t good enough.

Under the War Powers Act of 1973, the law that governs presidential authority to order military strikes, there are three lawful ways for a commander-in-chief to order the bombing of another country. None of them appears to cover the strikes carried out on Saturday.

Here is the relevant section of the law (emphasis added): “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The first two options provided by the law are clearly not involved here, as Congress did not declare war against Iran and did not pass an authorization for the use of military force (as was done to allow the invasion of Iraq in 2002).

The third circumstance also does not apply to Trump’s attack on Iran, which was not carried out in response to an attack on American troops and did not respond to a crisis threatening American soil. As Reason‘s Matthew Petti wrote in the wake of the attack last night: “This campaign is a war of choice. And the administration did not try to sell it to Congress—let alone the American people—before embarking on it. Instead, Trump watched Israel launch a first strike on Iran, then threatened to get involved, talking himself into a corner. Now he seems to be hoping that Iran simply won’t respond to being attacked.”

The War Powers Act does not include a clause allowing presidents to bomb other countries just because. It also—despite the fact that the law is frequently discussed in political media in these terms—does not allow a window of 48 hours for the president to do whatever he pleases before alerting Congress and seeking further authorization.

That 48-hour window (as outlined in a subsequent section of the War Powers Act) applies only if the president is engaged in a lawful use of military force—that is, if he is acting in accordance with one of the three mechanisms built into the first section of the law.

“If there’s an attack in progress on the United States (i.e., currently happening), we expect the president to respond swiftly to neutralize the attack and protect Americans—and then we will hold the president to account,” explained former Rep. Justin Amash (L–Mich.) in a post on X. “The Framers of the Constitution agreed at the debates in the federal convention of 1787 that the president should have the ‘power to repel sudden attacks’ but not the power to otherwise introduce forces into hostilities without congressional approval.”

Some current members of Congress seem to be greeting the news of Saturday’s attack with appropriate skepticism about Trump’s authority.

“This is not constitutional,” Rep. Thomas Massie (R–Ky.) wrote on X after Trump announced the attack. Massie introduced a bipartisan resolution last week to block the use of military force against Iran without congressional authorization, but the measure has not received a vote.

“While President Trump’s decision may prove just, it’s hard to conceive a rationale that’s Constitutional,” Rep. Warren Davidson (R–Ohio) wrote on X.

Some Democrats, including Reps. Alexandria Ocasio-Cortez (D–N.Y.) and Rep. Sean Casten (D–Ill.), said Trump’s decision to strike Iran without congressional authorization should be grounds for impeachment. That is one option that should be on the table as Congress considers how to respond to Trump’s ordering of this attack.

But there are unlikely to be any direct political consequences for Trump as long as House Speaker Mike Johnson (R–La.) is willing to look the other way. In a statement released on Saturday night, Johnson said the strikes were “necessary, limited, and targeted.”

Even if that is true, it would just underline the importance of getting approval from Congress. The White House could have made the case to lawmakers (and their constituents) that a strike against Iran’s nuclear facilities was necessary and in the best interest of the United States.

The War Powers Act should not be treated as a series of suggestions that can be discarded when they seem inconvenient. Indeed, limits on executive power are most essential at the moments when they are inconvenient—otherwise, they are meaningless. Trump’s attack on Iran was not just an assault on a suspected nuclear weapons program; it was yet another blow against the separation of powers and the fundamental structure of the American constitutional system.

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The New York Times Launches An Unfair Attack On Judge Badalementi

Yesterday, Richard Fausset of the New York Times published an article “A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award.” This article represents the worst of modern-day advocacy journalism. Fausset obviously has no idea how law school seminars are graded, and made no effort to learn. Moreover, it is pretty clear here that there is an ongoing disciplinary proceeding against the student, so no one at the law school is able to comment. Fausset uses that silence to further sully the reputation of everyone involved.

I’ll start with a personal disclosure. The course in question was co-taught by Judge John Badalamenti. You may not know Judge Badalamenti, but you are probably familiar with a case he argued: Yates v. United States (2014). Yes, Badalamenti, as a federal public defender, successfully argued the fish case before the Supreme Court. I’ve known Badalamenti since then, and have chatted with him over the years. Last fall, I spoke at the originalism conference he organized, which hosted the entire Florida Supreme Court, several members of the Eleventh Circuit, and scholars from across the ideological spectrum. I include these facts to show the high regard that Badalamenti is held in by his community.

In the Fall of 2024, Judge Badalamenti taught a seminar at the University of Florida, titled ADVANCED CONSTITUTIONAL INTERPRETATION: ORIGINALISM AND ITS FOES. The syllabus is available online. (It is not clear if Fausset ever bothered checking it.) The syllabus explains how grades are assigned:

Grades will be based 25% on class participation, 10% on reflection papers, and 65% on final papers.

The paper in question was certainly a large chunk of the final grade, but was not the only factor. As I understand the policy at the University of Florida, the awarding of a “book prize” is not discretionary. It is automatically given to the student with the highest score. And in a small seminar with roughly a dozen students, this book prize is not particularly significant. It is not like a law school wide prize. Howard Wasserman, who teaches at nearby Florida International University, explained:

To people unfamiliar with law school, the phrase “book award” sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition.

The fact that a student received a high grade in a small seminar is not worthy of a New York Times expose. Aren’t there actual problems to write about?

On the merits, the argument that the Constitution, as originally written, favors white people stretches back to the founding, and was articulated by William Lloyd Garrison and others. I, for one, favor the Frederick Douglas and Lysander Spooner approach, but there is a scholarly debate in this area.

The entire premise of the NY Times article is that Judge Badalamenti gave a distinguished prize to an avowed white supremacist. But the timeline undermines the narrative. Again, the class concluded in December 2024. But the student’s relevant social media posts did not arise until February 2025, and the most egregious statements were made in March 2025. Does Fausset bother explaining whether Badalementi was even aware of the student’s comments during the class? No, it is all left to insinuation.

Faussett writes that Badalementi “has earned praise from both liberals and conservatives over the course of his career.” The linked article includes this passage:

The federal judge in Florida overseeing a conservative group’s lawsuit against Target’s LGBTQ+ Pride marketing is a Trump appointee and a member of the Federalist Society, which champions individual liberty and traditional values.

These facts describing US District Judge John Badalamenti, presented against a highly politicized backdrop, suggest a particular political leaning that could influence the way he will rule in the case. What people may not know is that the 49-year-old jurist has liberal supporters, came from a humble upbringing and considers political motivations incompatible with his role as a judge. But defying expectations and challenging assumptions is nothing new for him.

. . . .

The diagnosis shortly after becoming a federal judge was devastating to hear, Badalamenti said. But he found a friend and mentor in another former public defender and US district judge at the time, who later joined the Supreme Court: Justice Ketanji Brown Jackson.

“She mentored me through these difficult times and continues to be a tremendous friend and source of positivity,” Badalamenti said in a follow-up email.

Jackson, whom President Joe Biden appointed to the Supreme Court in 2022, declined to comment through a spokesperson, but the representative confirmed the justice’s friendship with Badalamenti.

Yes, Judge Badalementi is friends with KBJ. And as a federal defender, he spent his career defending people of color. A quick google search shows that he is on the board of Gentlemen’s Quest. This group helps high risk high school students gain entry to college. A quick review suggests that Judge Badalamenti is the only white person on the board. Moreover, the Senate Judiciary Committee questionnaire states that he “served as a volunteer mentor for inner city middle school students in the Tampa community.”  This is not a white supremacist. Did Fausset even ask Chat GPT about Badalamenti?

These hits on conservatives are so predictable and unfortunate. They slander a good judge who spent his career fighting for the rights of all people, all in service of an attack on originalism. Look at Fausett’s biography:

I write about conservative culture and gun issues, as well as the ongoing election interference case against former President Trump and some of his allies in Fulton County, Ga.

Faussett was asked to investigate only one side of the spectrum. This is not journalism. As Rush would say, these are activists with bylines.

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The Attack on Iran Is Unlawful

Hours after the U.S. bombed several sites in Iran, President Donald Trump called the operation a “spectacular military success.”

Whether or not that turns out to be true, the attack looks rather different as a legal matter. Trump appears to have significantly overstepped his authority, as the attack was not authorized by Congress and was not in response to an attack on American soil or American troops. The best the White House has been able to come up with so far is that Trump acted under the legal authority “afforded to him as Commander in Chief,” as a White House official told Real Clear Politics on Saturday night.

Sorry, but that simply isn’t good enough.

Under the War Powers Act of 1973, the law that governs presidential authority to order military strikes, there are three lawful ways for a commander-in-chief to order the bombing of another country. None of them appears to cover the strikes carried out on Saturday.

Here is the relevant section of the law (emphasis added): “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The first two options provided by the law are clearly not involved here, as Congress did not declare war against Iran and did not pass an authorization for the use of military force (as was done to allow the invasion of Iraq in 2002).

The third circumstance also does not apply to Trump’s attack on Iran, which was not carried out in response to an attack on American troops and did not respond to a crisis threatening American soil. As Reason‘s Matthew Petti wrote in the wake of the attack last night: “This campaign is a war of choice. And the administration did not try to sell it to Congress—let alone the American people—before embarking on it. Instead, Trump watched Israel launch a first strike on Iran, then threatened to get involved, talking himself into a corner. Now he seems to be hoping that Iran simply won’t respond to being attacked.”

The War Powers Act does not include a clause allowing presidents to bomb other countries just because. It also—despite the fact that the law is frequently discussed in political media in these terms—does not allow a window of 48 hours for the president to do whatever he pleases before alerting Congress and seeking further authorization.

That 48-hour window (as outlined in a subsequent section of the War Powers Act) applies only if the president is engaged in a lawful use of military force—that is, if he is acting in accordance with one of the three mechanisms built into the first section of the law.

“If there’s an attack in progress on the United States (i.e., currently happening), we expect the president to respond swiftly to neutralize the attack and protect Americans—and then we will hold the president to account,” explained former Rep. Justin Amash (L–Mich.) in a post on X. “The Framers of the Constitution agreed at the debates in the federal convention of 1787 that the president should have the ‘power to repel sudden attacks’ but not the power to otherwise introduce forces into hostilities without congressional approval.”

Some current members of Congress seem to be greeting the news of Saturday’s attack with appropriate skepticism about Trump’s authority.

“This is not constitutional,” Rep. Thomas Massie (R–Ky.) wrote on X after Trump announced the attack. Massie introduced a bipartisan resolution last week to block the use of military force against Iran without congressional authorization, but the measure has not received a vote.

“While President Trump’s decision may prove just, it’s hard to conceive a rationale that’s Constitutional,” Rep. Warren Davidson (R–Ohio) wrote on X.

Some Democrats, including Reps. Alexandria Ocasio-Cortez (D–N.Y.) and Rep. Sean Casten (D–Ill.), said Trump’s decision to strike Iran without congressional authorization should be grounds for impeachment. That is one option that should be on the table as Congress considers how to respond to Trump’s ordering of this attack.

But there are unlikely to be any direct political consequences for Trump as long as House Speaker Mike Johnson (R–La.) is willing to look the other way. In a statement released on Saturday night, Johnson said the strikes were “necessary, limited, and targeted.”

Even if that is true, it would just underline the importance of getting approval from Congress. The White House could have made the case to lawmakers (and their constituents) that a strike against Iran’s nuclear facilities was necessary and in the best interest of the United States.

The War Powers Act should not be treated as a series of suggestions that can be discarded when they seem inconvenient. Indeed, limits on executive power are most essential at the moments when they are inconvenient—otherwise, they are meaningless. Trump’s attack on Iran was not just an assault on a suspected nuclear weapons program; it was yet another blow against the separation of powers and the fundamental structure of the American constitutional system.

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