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Peter M. Shane
Peter M. Shane's most recent books are "Cybersecurity: Shared Risks, Shared Responsibilities" (with Jeffrey Hunker) and "Connecting Democracy: Online Consultation and the Flow of Political Communication" (with Stephen Coleman), published by MIT. His 2009 book, Madison's Nightmare: Unchecked Executive Power and the Threat to American Democracy, is published by the University of Chicago Press. He is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University's Moritz College of Law, and was Visiting Professor of Law for 2011-12 at Harvard Law School. A graduate of Harvard College and Yale Law School, Professor Shane clerked for the Hon. Alvin B. Rubin of the U.S. Court of Appeals for the Fifth Circuit. He served as an attorney-adviser in the U.S. Department of Justice Office of Legal Counsel and as an assistant general counsel in the Office of Management and Budget, before entering full-time teaching in 1981 at the University of Iowa. He has visited at Duke, Boston College, and Villanova Law Schools, and was the inaugural "Visiting Foreign Chair" for the University of Ghent Program in Foreign and Comparative Law in Ghent, Belgium, in 2001. In 2008-09, he served as Executive Director for the Knight Commission on the Information Needs of Communities in a Democracy. Peter's research focuses on (1) law and the American presidency, (2) democratic theory, and (3) cyberdemocracy, the use of new information technologies to expand opportunities for citizens to participate meaningfully in the formulation of public policy. The views expressed in his blog posts are entirely his own and do not represent the views of The Ohio State University or of any other organization with which he is now or has been associated.

Entries by Peter M. Shane

The Constitution as a Code of Honor

(0) Comments | Posted April 5, 2016 | 12:47 PM

(This essay was initially published by Washington Monthly.)

It would probably delight the late Justice Antonin Scalia to know that the fight over his successor was generating constitutional controversy. Indeed, like many controversies that Justice Scalia fueled, this one concerns not only the implications of particular clauses, but...

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Judge Hanen's Misconceptions and the Legality of Deferred Action

(10) Comments | Posted March 18, 2015 | 9:48 AM

Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say "no" to unconstitutional laws and executive actions: It is the judicial power to say "no" that gives the judicial power to say "yes" its legitimating force. Government...

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Sincere, but Ideological: Judges Can Be Partisan, Even if Not Consciously Biased

(0) Comments | Posted August 13, 2014 | 11:50 AM

It is honorable no doubt to defend federal judges against the charge that they are merely "partisan hacks." But there is no doubt that lawyers expect party ideology to affect those judges' rulings and that they are wise to do so.

That's why, after a three-Democrat Fourth Circuit...

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NLRB v. Noel Canning: Two Cheers for Recess Appointments

(1) Comments | Posted June 27, 2014 | 10:06 AM

As losses go, NLRB v. Noel Canning is going to be pretty easy for the NLRB and future presidents to live with.

In a 5 to 4 vote, the Court held that Article II's Recess Appointments Clause empowers presidents to fill vacancies that occur at any time...

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'Privatization' Is Not 'Privacy'

(2) Comments | Posted April 11, 2014 | 10:07 PM

Author's note: I had the privilege on April 4 of delivering the following remarks as part of a panel on "Creating the Politics of Privacy," a session of the capstone conference for Ohio State's 2013-14 series of campus-wide programs on the distinction between public and private.

America's cultural...

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The Constitutional Stakes in Debt Ceiling Brinkmanship

(55) Comments | Posted October 15, 2013 | 9:07 AM

If you don't think the current government shutdown and fight over the debt ceiling are a threat to constitutional government, you're not paying attention.

In my 2009 book, Madison's Nightmare, I described a systematic "attack on checks and balances between 1981 and 2009 [that] can very much be...

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Using the Syria Debate to Launch War Powers Reform

(0) Comments | Posted September 9, 2013 | 9:57 AM

Whatever else we learn from the current debate over a possible U.S. military strike against Syria, one point seems clear: We don't have good structures and processes in place for dialogue between the President and Congress over war-making. Specifically, we don't have a reliable version of what Professor Stephen M....

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Rebalancing War Powers: President Obama's Momentous Decision

(0) Comments | Posted September 2, 2013 | 3:07 PM

President Obama's pursuit of congressional authority for a Syrian strike operation is, to date, his single most important decision in reshaping the post-9/11 presidency.

He early foreswore torture and declared the U.S. bound by the Geneva Conventions in the war against al Qaeda. These orders, however, only institutionalized...

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How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage

(5) Comments | Posted June 26, 2013 | 5:41 PM

Justice Kennedy's opinion in United States v. Windsor immediately and deservedly now enters the canon of momentous Supreme Court human rights decisions. Historians and others will likely debate whether the Court's disposal of the Prop 8 case on technical standing grounds -- allowing same-sex marriage to...

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The NLRB, the IRS, and the Cancer of Senate Obstructionism

(20) Comments | Posted May 17, 2013 | 3:51 PM

Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that "[b]ehind the words of the constitutional provisions are postulates which limit and...

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Judicial Activism and Recess Appointments

(2) Comments | Posted January 31, 2013 | 10:36 AM

On Wednesday, January 4, 2012, President Obama appointed three new members for the National Labor Relations Board. He also named Richard Cordray to serve as director of the Consumer Financial Protection Bureau. To do so, he invoked his recess appointments power under Article II, Section 2, Paragraph 3 of the...

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Two More Reasons Why the D.C. Circuit is Wrong, Wrong, Wrong on Recess Appointments

(6) Comments | Posted January 30, 2013 | 9:19 AM

The D.C. Circuit opinion avoiding President Obama's recess appointments to the NLRB purports to rest on a historically grounded reading of Article II of the Constitution. The relevant text says, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the...

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Permitting Legislative Repeal by Blocking Nominations: The DC Circuit Recess Appointment Disaster

(37) Comments | Posted January 27, 2013 | 4:06 PM

From early in the 20th century through the 1980s, Congress had a habit of building into some of its legislation a little device called the one-House "legislative veto." The idea was this: Congress would enact a statute allowing some federal agency to regulate something. But, with the one-House veto, either...

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The Hysteria Over the Obama Executive Orders

(4) Comments | Posted January 18, 2013 | 2:25 PM

Not being a psychiatrist, I don't really understand why the president's fairly modest efforts at gun policy reform seem to have utterly deranged some of his political opponents. But talk of impeachment in connection with his gun-related "executive orders" is, to put it mildly, ridiculous.

To put matters...

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The Two-Mandate Myth: An Ohio Perspective

(16) Comments | Posted November 9, 2012 | 9:08 AM

Within moments of President Obama's apparent victory in both popular and electoral votes, Speaker Boehner was claiming that Republicans enjoy their own mandate from the 2012 elections -- Republicans kept control of the House. I'm searching in vain for a polite word for this argument.

With unemployment still...

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Limited Government v. National Competence: The Ongoing Struggle Over the Commerce Clause

(21) Comments | Posted July 6, 2012 | 5:00 PM

The framing of Congress's constitutional law-making powers -- so profoundly at issue in NFIB v. Sibelius, the "Obamacare case" -- reflects two contending principles that will never be drawn into any final, definitive balance.

One principle, the basis of the conservatives' unhappiness with the Affordable Care Act, is that the...

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The Obamacare Surprise: Chief Justice Roberts' Brilliance as Institutional Strategist

(4) Comments | Posted June 29, 2012 | 11:08 AM

No parlor game has more preoccupied constitutional law professors this year than predicting the outcome of NFIB v. Sibelius, the Supreme Court ruling on the Patient Protection and Affordable Care Act. Of the many dozens of predictions I had heard, many foresaw a 5-4 vote, but I know of no...

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OLC's Skillful Defense of President Obama's Recess Appointments and Its Possible Aftershocks

(4) Comments | Posted January 13, 2012 | 10:41 AM

The Justice Department's release of on Office of Legal Counsel (OLC) opinion regarding President Obama's recess appointments power is a welcome display of public accountability. However one analyzes the bottom line, the opinion is a model of the genre. It is thorough in its analysis, candid about points...

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Recess Appointments and President Obama's Surprising Restraint

(7) Comments | Posted January 6, 2012 | 3:15 PM

For all the brouhaha surrounding President Obama's recess appointments this week of three new members for the National Labor Relations Board and of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, what is most surprising - and most welcome from a constitutional perspective - is the...

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Occupy the Constitution 2.0

(2) Comments | Posted December 12, 2011 | 3:26 PM

I cannot say that my earlier suggestions for a pro-democracy constitutional amendment have ignited a firestorm of grassroots activity. They have, however, elicited enough email responses to prompt my attempt at a yet better-drafter version.

Members of Congress have already proposed a constitutional amendment to deal,...

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