Constitutionally Speaking II: New Challenges to an Age-Old Document
Separation of Powers and the Debt Ceiling
Congress has created a statutory debt ceiling that limits federal government borrowing. But at the same time, Congress has enacted laws that require government spending in amounts that would exceed the debt ceiling if it is not periodically raised. Suppose Congress declines to raise the debt ceiling to a sufficient level to enable the President to pay all federal obligations. This would put the President in a bind. He must either borrow in excess of the debt ceiling or decline to make good on federal obligations. May the President continue borrowing money in excess of the debt ceiling in order to avoid default? Or would doing so violate the principle of separation of powers?
Federalism and Conditional Spending Programs
The Tenth Amendment reserves powers not delegated by the Constitution to the federal government to the States and the people. When Congress makes federal funds available to States on the condition that they enact measures or adopt policies that Congress lacks authority to require on its own—a longstanding practice that has always been thought constitutional—may it go too far and coerce the States in violation of principles of federalism embodied in the Tenth Amendment?
Free Speech and Campaign Finance Regulations
The First Amendment prohibits Congress from abridging free speech, and the Fourteenth Amendment applies the First Amendment's free-speech guarantee against the States. Should the danger of corruption permit Congress or the States to enact laws restricting the expenditure of money during political campaigns, notwithstanding the fact that the such expenditures have been held to be forms of speech protected by the First Amendment?
The Fourteenth Amendment and Marriage Equality
The Fourteenth Amendment's Due Process Clause has been interpreted to make marriage a fundamental right, and its Equal Protection Clause bars certain forms of discrimination on the basis of status. Do these constitutional guarantees combine to require the States to issue marriage licenses to same-sex couples?
Civility and Respect
Attorneys David Boies and Ted Olson discuss the importance of civility in legal proceedings and the political process.