It has been a key tenet in the current ideology of liberal democracy that, while regulatory powers are being transferred from Congress to the presidency, fiscal authority remains firmly in the hands of Congress. The power to tax and spend is at the core of sovereign power, and so as long as Congress retains this power, we aren’t really yet in a system of presidential primacy, as some people have argued.

Yet there are clues that even the fiscal power is drifting over to the executive branch, or at least away from Congress. The New York Times today reports on efforts by economists and central bankers to persuades legislatures to spend more money in order to stipulate economic growth. But Congress won’t; it’s gridlocked as always. So who is going to do it?

The central banks, of course. It has long been understood that while central banks are supposed to limit themselves to “monetary policy” (controlling the money supply by buying and selling securities, lending to and borrowing from banks, and so on), they have in recent years been engaging in fiscal policy as well. They do this mainly by purchasing long-term government bonds, private bonds, and quasi-government bonds (like GSE bonds). These purchases are premised on the assumption that, by promoting economic growth, they will eventually drive up interest rates, which will result in the loss of value of those bonds, in which case the central bank will lose money and pass those losses onto the “government” (Congress and the president), which will need to raise taxes or cut spending.

This has always been true—indeed, in my own hazy understanding the distinction between monetary and fiscal policy is not very clear, since the government expects to receive the “profits” from monetary policy in any event and plans accordingly—but the key point, as reflected in the Times article, is that the more overtly fiscal aspects of central bank activity is being normalized, as a result of lingering post-crisis economic stagnation, here and in other developed countries, along with legislative gridlock.

True, the president does not control fiscal policy—not yet—but the gradual, barely noticed, shift of fiscal policy from Congress to a regulatory agency deserves more attention than it has received.

Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.

It’s not that originalism itself is nihilistic—quite the contrary. Originalists believe that constitutional law today should be based on the understanding of the Constitution and its amendments when they were ratified. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.

The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate. The administrative state is the apparatus through which the national government accomplishes its objectives; without it, it can hardly do anything beyond defense and internal security.

And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.

While the view now is that the cancer has metastasized, at one time originalists and their fellow travelers thought that the remedy was simple and could be accomplished within constitutional forms. All that was necessary was for the public to elect a president who takes the Constitution seriously, and for that president to appoint originalists to the Supreme Court. Optimists believed that even liberal jurists could be persuaded to adopt originalism, leaving even Democratic presidents no choice but to appoint originalists to the bench. Once in office, these justices would work to overturn a century of precedents and welcome home what has been called the “Constitution in exile.”

During the Reagan administration it was just possible for an intelligent person to believe in this vision. High-level officials really did take this view seriously and expended effort to bring it to reality. But they failed. It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.

The major cause of the failure of originalism was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.

Scalia finally realized this. His initial happy-warrior pose gave way to bitterness, and over the years his dissents became increasingly shrill, as he came to use them as platforms to attack the Court rather than merely to disagree with his colleagues.

It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vison of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.

I suspect that the vanishingly tiny number of pro-Trump conservative intellectuals described by Peter Beinart see in him Sulla, who reestablished republican institutions after his dictatorship, not Caesar (as Beinart claims), who sought to dismantle them permanently. I find it hard to imagine Trump, as dictator legibus faciendis et rei publicae constituendae causa, going to the trouble of proscribing the Democratic party, only to place nine originalists on the Court before retiring discreetly to Mara-a-Lago. But with the conservative intellectual establishment in ruins, there’s nothing left but hope.

That’s the title—or the beginning of an uncharacteristically long title—of a paper that Glen Weyl and I have posted on SSRN. Here’s the idea:

Every year you send to a registry the amount that you value your house. The property tax you pay is a percentage of the valuation. But you’ll resist the impulse to value your house at 1 cent because if you do, someone will come along and buy your house from under you. That’s because of the other element of the scheme: anyone can force a sale of your house at your self-assessed valuation. The tax is keyed so that you will honestly reveal your valuation, to the extent compatible with maintaining incentives to invest in improving the house.

One person I described this idea to reacted very negatively, at one point calling it “socialism” and at another point calling it “the market gone wild.” Or maybe it’s both? Or neither? You’ll have to read the paper to find out.

Without quite saying so, Jack Balkin hints that he may be. Others, like his Balkinization colleague Sandy Levinson, are more confidant that he is. So is he?

Let’s start with Trump’s policies. He is skeptical about international trade and immigration, supports law and order, and wants to reduce regulation and taxes. His position on social issues is ambiguous and probably moderate. This is an unusual combination of views for a presidential candidate, but these positions are hardly beyond the pale. There are respectable (if not necessarily correct) arguments for all these commitments, and they enjoy the support of millions of Americans, and have at various times in recent history been pursued by the national government, as well as the governments of other liberal democracies. If President Trump kept his campaign promises in good faith, he would hardly be a threat to the constitutional order, whether the policy consequences would be good or bad.

The real source of alarm seems to be Trump’s incivility, and his reckless and frequently erroneous statements—including sarcastic asides, jokes, and semi-deniable provocations that have offended millions of people. Yet most of these statements are not statements of policy or intention but merely (incredible) rudeness to people who are generally treated respectfully by politicians even in the heat of a campaign. It is possible to argue that a person who says that a judge is biased against him because of the judge’s Mexican heritage would also, as president, defy the Supreme Court. Or that someone who would ban Muslims from entering the United States would also be willing to round up American Muslims and put them in internment camps after the next Islamist terrorist attack. But these are leaps of logic—like saying that because Hillary Clinton is willing to accept Syrian refugees onto American soil, she wants to forcibly convert all Americans to Islam. Trump’s offensive verbal attacks might disqualify him from the presidency on political grounds, but they do not show that he plans to violate constitutional norms.

The major import of these statements is what they say about his temperament. But here again, while I agree that Trump lacks the temperament to be president, this is a political, not a constitutional, judgment, unless perhaps one thinks that he is literally insane, say a “sociopathic narcissist,” to quote Sandy. But he’s not insane, and this flinging around of medical vocabulary words as if they meant anything should be avoided.

Jack concludes his post with these words:

On the other hand, it’s also possible that if Trump wins in November, people will become increasingly fearful about what he and his allies will do. As the time grows closer to Trump’s actually taking office, people’s views about what the Constitution allows may undergo significant change. For example, we might see vigorous debates about the responsibility of members of the electoral college to vote their consciences rather than for the candidates who won their respective states. We might also see debates about what will throw the election into the House of Representatives (for the Presidency) and the Senate (for the Vice-Presidency). We may even see schemes floated that try to place Mike Pence, or Tim Kane, or even Speaker Paul Ryan in office instead of Trump or Clinton following a deadlock in the House; or schemes that try to use the Twenty-Fifth Amendment to keep Trump from exercising the powers of the Presidency on the grounds that he is mentally unstable or incompetent.

The striking claim here is that even before Trump takes office, some substantial portion of the public—or (more likely) of the elites—will try to block a democratically elected president from taking office (albeit by reinterpreting the Constitution as though they were law professors). I don’t think there is any possibility that this will happen—unless Trump announces during his campaign that he plans to shut down the courts and Congress. (Which is unlikely but I suppose one can’t rule out anything this campaign season.) Trump will likely lose the election just because all of offensive statements will cost him political support, as they should; that’s how democracy works. And if he doesn’t, our panicking liberal elites will need to decide whether to throw their lot against democracy as Jack predicts they will (as the liberals did in Egypt but not in Turkey), but if they do, then they will need to acknowledge that the threat to constitutional order is not Trump, but they.

Trump is a recognizable type. He is the twenty-first century version of the billionaire rabble-rouser who gains power by appealing to the mob—almost a stock character in the waning years of the Roman Republic. The founders certainly feared such a person, but the major obstacles to the presidency that they created or kept in place in order to keep a demagogue out of the office—property qualifications for voting, indirect elections, federalism, separation of powers—have mostly been dismantled. Even in our democratic age, it seems that some people are coming to appreciate the vision of elite-led democracy that these institutions were meant to sustain. Trump may not threaten the constitutional order himself, but he is provoking the elites to reconsider their support for a constitutional order in which someone like Trump could be elected president.

A guest post by Will Baude, Adam Chilton, and Anup Malani.

Yesterday we argued that claims about legal doctrine are frequently made without sufficient support, and argued that this can be a problem that should be remedied. Today we will briefly sketch our proposed solution.

In response to analogous concerns, other disciplines have developed methods for conducting “systematic reviews” of prior findings on a research question. Individual studies may have limited statistical power to answer a research question and their conclusions may be bound by the specific circumstances in which they were conducted. By contrast a review could aggregate the data and contexts from multiple studies to yield both a more precise and generalizable study. But it is important that the reviews be conducted in a rigorous way that minimizes the kind of bias and error we have discussed.

Although there are a number of variants of systematic reviews, they generally have four steps. First, the researcher should state clearly the question she is attempting to answer. Second, the research must justify and be transparent about how she defines and obtains the sample for her review. Third, the research ought to explain any weighting that is applied to the cases in the sample. Fourth, the researcher needs to justify and be transparent about the manner in which she analyzes the sample cases she reviews.

We argue that the insights of systematic review can be extended to law. It is true that legal analysis tends to be qualitative rather than quantitative, and that legal analysis is more likely to embed normative issues, but in our view those are not reasons to ignore the lessons of systematic review. On the contrary, a rigorous methodology allows us to separate positive and normative contributions and move arguments forward.

In our new essay, we explain exactly how we’d extend these four steps to legal analysis, and provide an example of a systematic review in action. Read it if you’d like to learn more.

I discuss the end of the term with Emily Bazelon, Will Baude, and Nikole Hannah-Jones in the Times Magazine. More coming.

I debate (with Adam Cox) Mike McConnell and Carrie Severino, here.

Here. Does this make me a tyrannophobe?

It’s time to dust off this old paper, which I wrote with Adrian Vermeule; see also this book where it reappears as a chapter. Tyrannophobia is now definitely a thing. It’s made its way onto Wikipedia (the author of the entry writes with admirable brevity) and even a medical diagnosis website (possibly of questionable utility).

And, of course, it’s made its way into the media:

He’s not Hitler, as his wife recently said? Well, of course he isn’t. But then Hitler wasn’t Hitler—until he was.

Here’s a nicely done critique of my paper exploring the Fed’s legal violations during the financial crisis by George Selgin of Cato.

What is quadratic election law? It is quadratic voting, applied to our political system, in a way that does not conflict with legal and political norms. Read about it here.

Jack Balkin disagrees with my prediction that originalism will fade away. He makes two arguments, albeit divided in five categories.

Originalism will survive as “a common language for political conservatives to talk about their constitutional values” (arguments 1 and 5)

Originalism will decline first in law schools, as liberal constitutional law professors—who overwhelmingly dominate the field—no longer feel the need to engage with originalism, because it no longer plays a role in Supreme Court decisionmaking even as rhetoric. As they stop writing about it, originalism will move back from “on the wall” to “off the wall.” Law review editors will stop taking it seriously, and publication of originalist scholarship will decline. Conservative scholars will look elsewhere for inspiration. If originalism survives in political discourse, it will survive only as a code word (like “strict constructionism”).

Jack also argues that the cultural importance of founder worship ensures that originalism will survive as a political force. However, I don’t think the two have much to do with each other. Founder worship is a term for an American mythology that is only remotely related to the founders’ actual views. The modern-day political role of founder worship determines the content of that mythology. Originalism, if undertaken sincerely, undermines mythology, as all serious history does. The obscure and complex origin of the American state, and its remoteness to present-day realities, was always a weakness of originalism, not a strength.

Originalism as a comprehensive theory of constitutional interpretation may disappear, but originalist arguments will survive (including the tactical use of originalism to overturn precedents) (arguments 2, 3, and 4)

This I agree with, but only because the text of the Constitution has always played a role in constitutional decisionmaking except when swamped by inconsistent precedents. Jack also thinks that justices use originalist rhetoric to overturn precedents that they don’t like. That’s all fine. I wasn’t talking about rhetoric; I was talking about practice or, at a minimum, sincere reliance on originalist methods. Originalism became a thing only because Justice Scalia and his academic followers believed that originalism was more than a rhetorical trope. It was this claim that energized and inspired the conservative legal movement—the claim that the constitution, properly understood, actually embodied conservative values. As this claim loses its influence over judicial decisionmaking, the conservative legal movement will look elsewhere for a unifying ideology.

My prediction that originalism will fade away has received cogent responses from Larry Solum, Michael Ramsey, and Jack Balkin. When I can find the time, I will respond to them. I do want to clarify that I am, in effect, treating all of us law professors as endogenous to larger social and cultural forces rather than (as we prefer to think of ourselves) as autonomous agents. I’m not making arguments on the merits of originalism and its competitor theories (whatever “merits” might mean in this context). And while I could be wrong about those forces, this is the terrain on which the debate should take place (and for that reason, Jack Balkin’s post is most directly responsive (but in brief response to him, I mean by originalism the legal-intellectual movement asserting what he calls a “comprehensive theory of constitutional interpretation” associated with Scalia’s ideas and not, for example, episodic examinations of the text in light of historical context when precedents run out, which is hardly new or distinctive. I’m also talking about the near-term, let’s say, a horizon of ten years, not forever.)). But I had some other thoughts, albeit along similar lines, that I wanted to jot down first.

Suppose that President Obama or his successor, if a Democrat, nominates and manages to secure the appointment of a (very likely) moderate liberal justice. We will now have, for the first time in decades, a clear 5-4 liberal majority. How will this change constitutional theory, by which I mean the work product of constitutional law professors?

First, the various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book, that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)

Second, while I have no doubt that some constitutional law scholars committed to originalism will continue to write in this vein for the time being, look for a gradual shift in the center of gravity in conservative scholarship to judicial restraint. The explanation is symmetrical with my first point. Judicial restraint will help preserve the gains in conservative constitutional law—including the creation of gun rights, the expansion of speech rights, the erosion of protections for criminal defendants and minorities, and so on—at a time when a liberal majority will reject all efforts to advance the conservative legal agenda. By contrast, it is possible that a new moderately liberal swing justice will hesitate about sweeping aside recent precedents if persuaded that radical change would do significant damage to the court’s reputation. It is easy to imagine a moderately liberal justice voting to cut back on Citizens United but not, say, Heller, just as O’Connor and Kennedy drew the line at Roe. Ambitious conservative legal scholars might get a hearing if they drop their commitment to originalism and make arguments based on the small-c conservative values inherent in respect for precedent, or, more creatively, argue that religious people should be designated a suspect class because they are vulnerable to discrimination.

Will constitutional law professors really turn on a dime? Certainly not all of them. A flip-flop at the level I am discussing can occur through selection effects rather than individual changes-of-mind. This is an opportunity for conservatives, particularly younger conservatives, who have not staked their reputations on originalism, and likewise in the other direction for liberal scholars who have not committed themselves to judicial restraint. My arguments might sound cynical, but I have history on my side.

Most law academics write scholarship with the hope and expectation that their work will influence public policy. Not all of them—it is possible to write good scholarship that advances knowledge but has no immediate application to policy. But such scholarship is pretty rare in the legal world.

Many judges complain that law professors don’t write for them—for the judges. I’ve always thought that this complaint was exaggerated, but it is true that many law professors, perhaps most, write for a broader audience, including regulators and legislators, and the broader policy community that, sooner or later, might bring their ideas to the attention of people with power. In the end, the goal is to get something done. Citation of one’s work in judicial opinions, legislative history, regulatory documents, and the like, is thrilling validation that one’s ideas are not completely useless.

This brings me to originalism. The audience for originalist scholarship—and I mean the audience with the power to use originalist scholarship to change people’s behavior and thereby to validate the importance of the scholarship—consists entirely of nine people: the justices of the Supreme Court. (Okay, and also their clerks). Legislators don’t care about originalism. Regulators don’t care about originalism. Not even the lower courts care about originalism.

With Scalia gone, only one originalist justice remains—Clarence Thomas. The other seven justices don’t care about originalism, at least not in the sense that Scalia did. They do not champion originalism. They may be receptive from time to time to arguments about the original understanding of this or that clause, but they clearly don’t think of such arguments as dispositive or even particularly weighty. Those arguments are, at best, allowable arguments.

Supreme court litigants must now decide whether to fill precious space in their briefs with originalist arguments. Maybe they will do so, to get Thomas’ vote. But Thomas’ originalism is, by all accounts, idiosyncratic and unpredictable. And the other justices are unlikely to make originalist arguments in their opinions to attract a vote from Thomas, who increasingly goes his own way.

President Obama will not try to replace Scalia with an originalist. This we know. What if the next president is a Republican? I doubt that a Republic president will expend any political capital to try to appoint an originalist. History shows that hardly any presidents make appointments for such narrowly ideological purposes. Just consider the record of Bush II, Bush I, and even—aside from the Bork fiasco and Scalia himself—Reagan, who appointed the stalwart non-originalists, Sandra Day O’Connor and Anthony Kennedy. Presidents are concerned above all with an appointee who will not interfere with their political agenda.

It’s true that presidents are under pressure to appoint ideologues. And as we see from Ted Cruz, the word “originalism” remains an important political code word. But a Republican president will not be under pressure to appoint an originalist; he will be under pressure to appoint someone who is likely to overturn Roe v. Wade and uphold gun rights. It’s simply irrelevant whether this person is an originalist or not. Indeed, a sincere originalist is not as politically dependable as someone with strong conservative political values which he will use to resolve legal disputes. Sincere originalism could lead in any number of directions (for example, overturning Citizens United). A conservative federal judge with strong prior experience working in a Republican administration would be a far safer choice than, say, an academic (like Scalia himself) who cares about ideas.

Where does that leave the growing community of legal academics who identify themselves as originalists? They will continue to have an audience for their work—themselves. But if, as I suspect, the Supreme Court gradually stops citing originalist scholarship, that audience will no longer be enough to motivate them.

Daniel Hemel writes:

The betting website PredictIt now puts the odds of Donald Trump winning the White House this November at 21%. I don’t think that estimate is too far off: Trump is ahead in virtually every recent Republican primary poll, and he trails Hillary Clinton by 2.6 percentage points in a general election matchup (according to the RealClearPolitics polling average). If there is, say, a 1-in-2 chance that he wins the Republican nomination and a slightly less than 1-in-2 chance (conditional on winning the nomination) that he defeats the Democratic candidate in the general election, then 21% seems just about right.

At the very least, the possibility of a Trump victory is not so remote as to make it too soon to ask ourselves: what would life under President Trump look like? To some extent, the answer depends on what the next Congress looks like — many of Trump’s proposals (like lowering the top individual income tax rate to 25%, ending birthright citizenship, and issuing concealed carry permits that are valid in 50 states) would require statutory changes. But not all of them. For example, Trump could accelerate the pace of deportations without any new legislation (though it would help if Congress allocated funds to triple the number of Immigration and Customs Enforcement officers, as Trump has said it should). Moreover, 8 U.S.C. § 1182(f) already gives the President broad authority to “suspend the entry of all aliens or any class of aliens” when he (or she) finds that their entry “would be detrimental to the interests of the United States.” (Others — including my colleague Eric Posner — have discussed whether the First or Fifth Amendment would prevent President Trump from banning Muslim immigrants from entering; I won’t weigh in on that question except to point out that President Trump presumably could ban some or all immigrants under § 1182(f) as long as he did not target immigrants of a particular religion, race, ethnicity, gender, or other “suspect class.”)

What checks and balances might prevent President Trump from taking executive actions along these lines (e.g., an executive order banning all immigrants from entering the United States for a period of time)? Conceivably, Congress could repeal § 1182(f) — though President Trump presumably would veto the repeal legislation, and Congress could override the veto only with the support of two-thirds of the House and two-thirds of the Senate. Alternatively, a federal court might block President Trump’s executive order — though I don’t know what theory the court would use. Could a court set aside the President’s finding that entry of these immigrants “would be detrimental to the interests of the United States”? The President’s action might be “arbitrary and capricious” under the standards of the Administrative Procedure Act, but the Supreme Court held in Franklin v. Massachusettsthat the President is not an agency subject to the APA.

That leaves, as perhaps an unlikely suspect, the Department of Homeland Security. By this, I don’t mean the Secretary of Homeland Security — Trump would want to pick a loyalist for that post. I mean the Department of Homeland Security rank-and-file — the hundreds of thousands of DHS employees whose active participation would be necessary to implement Trump’s policy (even if they have no formal say in the matter under the Constitution).

In a dissenting opinion three years ago, Chief Justice John Roberts emphasized the extent to which administrative agencies can prevent a president from carrying out his or her agenda. Citing work by two of his colleagues on the court, Roberts wrote:

Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001); see also S. Breyer, Making Our Democracy Work 110 (2010) (“the president may not have the time or willingness to review [agency] decisions”). President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” . . . President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.”

Roberts wrote those words to make a very different point: in the case three years ago, he was arguing that the Supreme Court should not defer to the Federal Communications Commission on a particular issue regarding the placement of cell phone towers. Moreover, presidential power vis-à-vis “independent” executive branch agencies such as the FCC is even weaker than with respect to Cabinet departments. But the point applies across the executive branch — and it would almost certainly apply to a President Trump. As president, Trump might be able to do more than “a damn thing,” but he wouldn’t be able to do everything he wanted to — or even everything the Constitution allows him to. He may become Commander-in-Chief over a military of 1.5 million soldiers and sailors, but an even larger corps of 2.7 million federal civilian employees would still stand in his way.

Would Homeland Security employees engage in outright civil disobedience under President Trump? Perhaps not. But between outright disobedience and vigorous enforcement of a president’s policies, there is a wide spectrum of potential bureaucratic responses. These responses will vary depending on the president’s policy — for example, if Trump orders Homeland Security to stop everyone except for U.S. citizens and lawful permanent residents at the border, then disobedience by an individual agent may be relatively easy to detect. (But if President Trump banned all foreigners, how would he fill the rooms at his hotels?) On the other hand, if Trump orders Homeland Security to stop every foreigner who arrives at a U.S. airport without a nonrefundable return ticket, then the individual agent might have more room to decide just how closely she will examine the airline refund policy in fine print.

These are, of course, hypothetical responses to hypothetical policies: we don’t yet know what a President Trump will do (and hopefully we never will know). We do, however, have many historical examples of “bureaucratic drift” — that is, of an agency pursuing goals that diverge from those of its presidential principal. The Environmental Protection Agency under President Reagan is one example: B. Dan Wood finds that “following the Reagan inauguration, the EPA bureaucracy bucked the administration and used its slack resources to substantially increase surveillance of pollution sources.” EPA Administrator Anne Gorsuch Burford managed to reverse this trend for a time, but her stormy tenure ended in resignation after less than two years, after which “[t]he committed bureaucrats who remained at EPA . . . again found slack to restore and intensify their surveillance activities.” Wood and coauthor Richard Waterman document a somewhat similar phenomenon at the National Highway Traffic Safety Administration under President Carter: while Carter and his NHTSA administrator both favored a more robust regulatory regime, the lower-level employee in charge of engineering evaluations did not share that regulatory philosophy, and the number of auto safety defect evaluations dropped sharply. And there are countless more cases of drifts less dramatic — many of which might not be observable to academics and other outsiders.

To be sure, the drift dynamic depends on the preferences of bureaucrats being different from the preferences of the president. And the former are difficult to measure. We do, however, have data on political contributions by employees at various federal agencies. And so we know that at Homeland Security, 61% of political contributions (by dollar amount) went to Democrats in the 2012 election cycle. We know that of the small number of Homeland Security employees whose 2016 presidential campaign contributions are reported along with their place of work in the OpenSecrets database, 58% donated to Democrats (primarily to Clinton) and none gave to Trump. And according to one poll of workers across federal agencies this past August, more than two-thirds said they had an unfavorable opinion of Donald Trump (the unfavorable figure was 65% for Ted Cruz, 54% for Clinton, 46% for Marco Rubio, and 40% for Bernie Sanders).

All of which is to say that in thinking about a Trump presidency (or, for that matter, an administration led by anyone whose views are far afield from the federal rank-and-file), we should think not only in formal separation-of-powers terms but also in practical terms of bureaucratic drift. Even where a President Trump would have constitutional and statutory authority to pursue his policies via executive action, he might not have the bureaucratic buy-in necessary to carry those policies through. Nor could he easily replace the federal rank-and-file with a bureaucracy of Trump followers: aside from the tenure protections of the Civil Service Reform Act, the existing rank-and-file is further insulated by the fact that outsiders couldn’t just step in and do their jobs. Say what you want about “good enough for government work”; the fact of the matter is that longtime federal employees have accumulated loads of agency-specific expertise that wouldn’t be easy for new hires to rebuild.

These practical observations raise difficult normative questions — questions that could consume an entire book. Assuming it is true that rank-and-file federal officials could make it difficult for a President Trump to implement his most extreme policies, that doesn’t necessarily mean that they should. After all, Trump will only become President Trump if he wins the November election, which would imbue even his most disturbing proposals with a degree of democratic legitimacy. Under those circumstances, what would be the ethical obligations of a rank-and-file federal worker unwilling to carry out Trump’s directives? As a lawyer rather than a philosopher, I’m not sure I’m competent to answer that question. But with Trump just days away from winning his second primary in South Carolina, I don’t think it’s too early to ask it.

In Slate. I predict that originalism as an academic field in law schools will not survive without Scalia on the Supreme Court to provide it with legitimacy.

I argue in Slate that Cruz is ineligible for the presidency. But would a court stop him if someone sued?

Courts employ various devices to avoid deciding uncomfortable, politically charged questions. For example, the political question doctrine deprives courts of jurisdiction over issues that are inherently “political,” meaning that the Constitution grants jurisdiction to other parts of the government to decide the issue, or the issue just is not amenable to judicial evaluation because it requires a “policy” judgment rather than a “legal” judgment. A prominent example is impeachment: if the president is impeached and convicted, a court won’t second-guess the Senate. However, the eligibility rules are different. Imagine that Miley Cyrus is elected president. The Constitution sets the minimum age at 35; would a court block 23-year-old Miley from office? Imaginably, yes. There’s nothing difficult about determining someone’s age or what the constitutional provision means. What if the person is not a “natural born citizen”? Justin Bieber, 14 years hence. Also, imaginably, yes. If so, and if Cruz is found not be a natural born citizen, then yes for Cruz as well?

In 2008, a person named Markham Robinson brought a lawsuit arguing that John McCain could not occupy the White House because McCain was born on a naval base in the Panama Canal Zone. The court dismissed the suit because Robinson—who wanted to become an elector for long-shot candidate Alan Keyes—could not show that he was injured by McCain’s candidacy—and must in any event wait until after the election to bring his lawsuit since the Constitution charges Congress in the first instance with the task of evaluating election results. It’s also not clear that Hillary Clinton or Bernie Sanders could challenge Cruz if he won the election, since the remedy—Cruz stepping down—would give the presidency to his vice-president rather than to Clinton or Sanders. Clinton/Sanders, like Robinson, would not have suffered an injury. However, Cruz might want to choose his vice-president very carefully.

A little history that has not yet played a role in the debates:

The founders admired the British system of government, and copied much of it, but they rejected the class society on which it was based. Hence the House of Commons becomes the House of Representatives; the House of Lords becomes the Senate, whose members do not obtain their seats via class lineage. The president was modeled on the king, with elections replacing the British reliance on royal dynastic succession.

The key thing that the founders knew—and we have all forgotten—is that numerous English or British kings were foreign born, indeed, were foreigners. The seventeenth-century kings James I and Charles I were born in Scotland (a foreign country to their subjects in England). William III, who in 1689 initiated the constitutional monarchy that existed at the time of the U.S. founding, was Dutch. The two early eighteenth-century kings, George I and George II, were born in Germany. This was a consequence of the rules of dynastic succession at a time when royal lineages crossed borders .

But the foreign connections of English and British kings were a constant source of political tension. English subjects distrusted the foreigners who occupied the throne. The alleged French sympathies of James II (not foreign born, but a Catholic and cousin of Louis XIV, who spent much of his early adult life abroad) led to the Glorious Revolution. In those days, it was not out of the question for a king to invite a foreign army to come to his aid by invading his own country. Parliament could not ban foreign kings but it did the best it could in the Act of Settlement of 1701, providing that if the Crown “shall hereafter come to any person, not being a native of this Kingdom of England, this nation [shall] not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the Crown of England, without the consent of Parliament.” It also banned from the throne Catholics, and spouses of Catholics—namely, foreigners and native-born people thought to have foreign sympathies, like James II.

Could a foreigner born of an American citizen, possibly a foreign lord flush with cash, come to the United States and bribe his way to the presidency? Such a possibility would not have been far from the minds of the founders. The natural-born citizenship clause solved this problem in a stroke. It ensured that presidents, unlike British kings, would be free of foreign sympathies arising from foreign birth and connections. The founders required that representatives have been a U.S. citizen for seven years, and senators for nine years, before taking office. The “senatorial trust,” explains The Federalist Papers, “ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.” The presidency—an infinitely more important office than that of a senator—must be protected all that much more from foreign influence, they believed.

What does this mean for Cruz? Whatever the merits of his candidacy, it’s unlikely that he would, as president, call for an invasion by the Canadian army. But Cruz, whose campaign website is headed “RESTORE THE CONSTITUTION,” and who has criticized the Supreme Court for “redefining the meaning of common words,” is in a weak position to argue that natural born citizen is something it isn’t.

Legislation is being proposed. Respected academics hate it. I defend it in BloombergView.

I have completed my debate with Greg Lukianoff and others. I ended up being perplexed about what Lukianoff believes and what his organization, FIRE, stands for. He says the “First Amendment” but the First Amendment protects speech codes in private universities; it doesn’t block them. So he says “in the case of private colleges, First Amendment values.” But he never addresses this conundrum: why would the First Amendment protect speech codes if speech codes undermine First Amendment values? Imagine that a Republican congress, under the leadership of a President Trump, passed a law compelling private universities to abolish their speech codes. Would FIRE defend the private universities against this form of government censorship or congratulate the government for advancing first amendment values on college campuses?