Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.comHis book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

A Gun to the Debt-Ceiling Fight

(Flickr/zieak)
If Barack Obama turns out to be a one-term president, historians may mark the summer of 2011 as the moment his failure became inevitable. At that point, the new right-wing Republican House majority declared the national debt hostage and demanded Obama’s surrender to them on all points of domestic policy. When the debt-ceiling statute required authorization of a new federal borrowing limit, they refused to vote on the measure without massive cuts in federal spending and no increase in federal revenue. The crisis was averted by the appointment of an idiotic congressional “supercommittee” that was supposed to identify future cuts, matched with a set of “automatic” cuts that were to take effect if the “supercommittee” failed to come up with a compromise aimed at reducing federal debt. Not surprisingly, the “supercommittee”—perhaps better known as the “Clark Kent committee”—was unable to produce a compromise. The debt showdown, which paralyzed Washington for much of spring and early summer...

A State-Federal Standoff over the Death Penalty

(AP Photo/Charles Dharapak, File)
A principled governor invoking “state’s rights” to defy federal policy. Aggressive local officials overriding state decisions. A federal court angrily affirming its own power. An anguished dissent attacking a power-hungry Congress. United States v. Pleau has all the elements of a great federalism battle (including, by the way, largely symbolic stakes). But don’t expect to see Rhode Island Governor Lincoln Chafee’s “state’s rights” stand hailed by Republican conservatives: Chafee is blocking the federal government in order to show his disapproval of the federal death penalty. The result, decided May 7 by the First Circuit Court of Appeals, is now in the Supreme Court’s in-basket. Pleau deals with important issues of policy, morality, and history. But because this is the United States, the language of the dispute is that of federalism—a pastime that Professors Edward L. Rubin and Malcolm Feeley once dubbed “a national neurosis.” The case began on September 20, 2010, when Jason Wayne...

“Inspired” But Not Read

(Flickr / Rhubarble)
“I happen to believe that the Constitution was not just brilliant, but probably inspired,” Mitt Romney told a town-hall meeting in Euclid, Ohio, on Monday. It may be that, like many who like to thump sacred texts, he has simply never read it. Media commentary has focused on Romney’s flat-footed refusal, or inability, to talk back to a questioner who suggested that President Obama should be “tried for treason” because he is “operating outside the structure of our Constitution.” But it’s worth taking a moment to note that “treason” is a term Americans seem to take lightly these days (Witness Rick Perry’s remark that Fed Chairman Ben Bernanke, a former George W. Bush staffer, would be “almost treasonous,” and perhaps guest of honor at a Texas necktie party, if he used the Fed’s legal authority to try to prevent the economy from falling back into recession). The Framers didn’t take the term lightly, and their care is reflected in one of the Constitution’s most important, though little-...

Bring On Less Democracy

(Flickr / afagen)
Is anybody else as depressed as I am about the next four years? No matter who wins, we face the prospect of bitterly divided government, savage partisanship in Congress, and increasing executive desperation. Even if Republicans win the Senate and retain the House, they will not have a filibuster-proof majority in the Senate; even if Obama holds on to the White House, he will face filibusters in the Senate and outright defiance in the House. A Congress that cannot deal with the tiny student-debt problem in orderly fashion is unlikely to be able to tackle big problems at all. The response to legislative paralysis is, of course, executive aggrandizement. Charlie Savage of The New York Times laid out recently the turn by the Obama administration to executive authority as its means of governing the country. It’s entirely predictable; legislative fecklessness has led to presidential power-grabbing for more than a century. And if Mitt Romney becomes president, he is already poised to follow...

Face It: SB 1070 Is about Race

“Before you get into what the case is about,” Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government’s argument in United States v. Arizona, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement. S.B. 1070, passed in a state that borders Mexico, will bring about many more stops and detentions of brown-skinned people, citizens or not. But the government chose not to argue that issue in its brief, and Verilli agreed that the profiling issue was off the table. The government’s argument, taken as a whole, is this: The Constitution gives the federal government exclusive authority over immigration and naturalization...

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