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What Did the SFFA Court “Say to John”? White Innocents, Reciprocal Democratic Sacrifice, & the Message of Affirmative Action
No full textMind the Gap: Time to Rehabilitate Section 504 to Prohibit Disparate Impact Discrimination
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Private Standards as Liability Shields: A Pro-Innovation Artificial Intelligence Regulatory Approach for States
No full textStates face a dilemma. The federal government is not regulating artificial intelligence (AI), and is threatening states that regulate the technology with preemption and funding restrictions. Moreover, piecemeal state regulation with different substantive requirements risks impeding AI innovation and harming our national interest and security. And yet, AI creates a whole host of problems relating to accuracy, safety, security, bias, transparency, privacy, and autonomy that needs to be governed. This Article presents a solution to this dilemma that can protect against AI risks without harming innovation and the national interest. The proposal is for states to provide a liability shield for AI systems that conform to recognized comprehensive risk management standards. After discussing the proposed solution, as well as drawbacks to the model, the analysis concludes that these liability shields are a simple, positive step that states can take to both promote AI innovation and protect their citizens from risks
Tribal Sovereignty, Sales Tax, and States Interference: Why Tax Compacts May Be the Best Way Forward
No full textConstitutional Limits on the President\u27s Authority to Adjourn Congress
No full textCan the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.
This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the Convening Clause, which authorizes the President to convene one or both houses in an “extraordinary” session; and the Disagreement Clause, which allows the President to adjourn Congress when the houses disagree about the terms of adjournment. A plan that percolated among some House members in 2024 and 2025 called for manufacturing a disagreement with the Senate that the President would cite as a basis for adjourning Congress. I call this the “contrived adjournment plan.”
The contrived adjournment plan violates the Constitution for four independent reasons. First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them. Second, even if the Disagreement Clause applies to regular sessions, it does not enable the President to adjourn the Senate if the Senate allows the House to adjourn. The House and Senate each possess independent authority to continue meeting while the other adjourns. If the Senate permits the House to adjourn, then the Senate’s refusal to adjourn itself would not create a constitutionally significant disagreement that the President could resolve. Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate’s inherent authority to convene on an earlier date. Fourth, even if the Senate could not reconvene, a forced adjournment of the Senate arguably would not create a “recess” that would permit the President to appoint officials without the Senate’s consent.
For the past 235 years, the Disagreement Clause has not been a cannon aimed at the Senate, waiting for a President to light the fuse. The Disagreement Clause has a narrow role that does not include empowering the President to evade Senate review of appointments. The Constitution is more resilient than Machiavellian schemes assume
