Harvard Law & Policy Review

Archives for February 2015

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The Problem with Kicking the Can Down the Road

By Tharuni Jayaraman

It’s happening again. As has been reported endlessly this past week, if Congress does not act soon to pass a funding measure, the Department of Homeland Security will shut down at 12:01 AM on Saturday. Notwithstanding the endless speculation and sound bites, the long-term implications for the country of such a shutdown are unclear. Indeed, given that about 85% of DHS employees would likely be considered “essential,” the term “shutdown” might, in itself, be a bit of a misnomer. However, as former Assistant Secretary for Intergovernmental Affairs Juliette Kayyem points out, it is clear that the “shutdown” would have some immediate costs. Those DHS employees who are deemed “essential” would have to report to work even though they would not get paid until the “shutdown” ended. Nonetheless, I am not here to write about the implications of a potential DHS shutdown because, quite frankly, there is not that much more to add.

Instead, I believe that the current game of brinkmanship is indicative of a larger problem with consequences that go beyond those of a potential DHS shutdown. The problem is Congress’ inability (or unwillingness) to engage in the budgeting procedures laid out in the Congressional Budget and Impoundment Control Act of 1974. Congress has not passed a budget resolution since the resolution for FY 2010.

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Thinking About an Agenda for a New Supreme Court, Part II

By Mark Tushnet

The first post on this topic briefly discussed what a new Supreme Court might do about campaign finance regulation. I suggested that the best course would be to go back to the beginning, rather than try to work within the framework developed over the past forty years. Doing so would allow a new Court both to eliminate much of the doctrinal complexity in the field and, far more important, to place the constitutional analysis of campaign finance regulation on a firmer footing.

Something similar might be done about affirmative action. Ever since Bakke, the constitutionality of affirmative action has turned on the argument that sometimes affirmative action can promote a valuable diversity in the institutions where it occurs. But, really, that wasn’t the motivation for affirmative action in the first place, nor is it, I think, the central motivation for those who support affirmative action today. [Read more…] about Thinking About an Agenda for a New Supreme Court, Part II

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This is Why Einstein was a Genius (And Rand Paul is Not)

By Tom Watts

Science has taken a beating in the policy world lately. While discussing the recent measles outbreak, Rand Paul, who is a medical doctor and should know better, said that vaccinations can lead to “profound mental disorders” (which, needless to say, is false). The Senate has also struggled with whether climate change is real and, if so, whether it is human-induced (which, needless to say, it is). These problematic incidents involving elected officials highlight some fundamental misunderstandings about science that are common enough to be worth clearing up. [Read more…] about This is Why Einstein was a Genius (And Rand Paul is Not)