Erwin Chemerinsky

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Recent Articles

Trump’s ‘Emergency’ Action: Unlawful and Unconstitutional

Presidents have no extra-constitutional powers during real emergencies, much less fictitious ones. 

AP Photo/ Evan Vucci President Donald Trump speaks during an event on human trafficking in the Cabinet Room of the White House. T he federal courts and ultimately the Supreme Court should quickly and emphatically hold that President Trump’s attempt to fund the border wall by declaring a national emergency is illegal and unconstitutional. In 1974, when President Richard Nixon made an unprecedented claim of executive power to resist complying with a subpoena from the Watergate special prosecutor, the Supreme Court unanimously rejected this assertion and enforced constitutional checks and balances. We should hope and expect that even the conservative Roberts Court, with two justices appointed by President Trump, will likewise follow the Constitution and reject Trump’s dangerous claim of emergency powers. The Constitution has no clause that gives the president emergency powers. This was a deliberate and wise choice. The framers of the Constitution wanted to make sure that its requirements...

A Very Tarnished Court

Kavanaugh, or his replacement, will be the fifth Republican justice sitting illegitimately. 

Michael Reynolds/Pool Image via AP Supreme Court nominee Brett Kavanaugh gives his opening statement at the Senate Judiciary Committee hearing on Capitol Hill C onservatives are about to fulfill a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same. Even if the Democrats gain control of the Senate in November, President Trump is sure to have a nominee confirmed by January, whether it is Brett Kavanaugh or someone just as conservative. This will create the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David...

Remembering Judge Stephen Reinhardt

The legacy of the great liberal appellate judge, who died Thursday at 87

AP Photo/Jeff Chiu, Pool, File Judge Stephen Reinhardt listens to arguments on gay marriage bans at the Ninth Circuit Court of Appeals in San Francisco O ne of President Jimmy Carter’s greatest legacies was the terrific judges he appointed, especially to federal courts of appeals. Carter never got to appoint a Supreme Court justice. However, he did appoint nine women to federal courts of appeals judgeships—before then, only two women in all of American history had ever been federal court of appeals judges. Carter relied on merit selection committees, and that process yielded a group of truly excellent judges. One of the greatest of them, Judge Stephen Reinhardt, died yesterday at age 87. Reinhardt will be most remembered as a liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court justices were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But...