Prof. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution

Thomas W. Merrill amd Joe Kearney at a podium.
Dean Kearney (left) welcomes a question for Prof. Merrill after the Hallows Lecture.

The Law School had the privilege earlier this week to present our annual Hallows Lecture. The occasion remembers E. Harold Hallows, a Milwaukee lawyer who taught part-time at Marquette Law School during 1930–1958 and then served on the Wisconsin Supreme Court from 1958 until his death in 1974, the last six years as chief justice. For the lecture, we welcomed Thomas W. Merrill, the Charles Evans Hughes Professor of Law at Columbia University, one of the nation’s most widely respected legal scholars.

Prof. Merrill’s Hallows Lecture, delivered on March 2 in the Lubar Center before 200 people (we counted), was rather a tour de force. Here were the title and advance description:

“Unstated”: How Three Implicit Legal Ideas Have Sidelined Congress and Empowered the President and the Courts

Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment. This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.

Even in advance of its publication this coming fall in the Marquette Law Review and Marquette Lawyer, Professor Merrill serialized the lecture this week for a national audience on the Volokh Conspiracy blog. Following an introductory post by Professor Eugene Volokh, the blog featured the following posts the past four days, March 2–5:

  1. How Unstated Legal Ideas Have Deformed the Constitution
  2. The “Unitary Executive” Theory’s Contribution to the Deformation of the Constitution
  3. The Role of Delegation Theories in Deforming the Constitution
  4. How the Supreme Court’s Conception of Its Role Contributes to the Deformation of the Constitution

The text of the entire lecture as prepared for presentation can be read here, and a video of the lecture is available to view here.

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Running Away from History in Trump v. Slaughter

[This piece is cross-posted and was originally published in the Yale J. on Reg.: Notice & Comment blog.] On December 8, 2026, the Supreme Court will hear oral argument in the landmark case of Trump v. Slaughter. A fundamental issue in the case is whether the statutorily created office of Commissioner for the FTC can include partial restrictions on the President’s ability to remove a Commissioner. The government contends that the statutory removal restrictions impinge on an indefeasible Presidential removal power under Article II.  

While the Supreme Court’s recent decisions in Seila Law and Collins have recognized an indefeasible Presidential removal power for some officers, a flood of recent research has undermined historical arguments for a categorical rule that would extend removal at pleasure to all officers or all principal officers. For summaries of this historical literature see Chabot, Katz, Rosenblum & Manners, Nelson, Katz & Gienapp. (My latest paper, The Interstitial Executive: A View from the Founding, adds more fuel to the fire: it introduces a critical body of previously overlooked archival evidence to show that the Washington, Adams, and Jefferson administrations routinely complied with statutory removal restrictions in their officer commissions.)

The government’s reply brief banked on recent precedent from the Roberts Court. It leaned into Seila Law and the unitary understanding of the Decision of 1789 that the Court adopted in that case.  At the same time, the government offered an extension of Seila Law that would create further conflicts with the historical record.

Both Seila Law and the officers created pursuant to the Decision of 1789 involved departments led by single officers. Neither Seila Law nor the Decision of 1789 involved statutory tenure protections for officers serving on multimember commissions such as the Federal Reserve or the FTC. As a result, Seila Law is not necessarily at odds with historical evidence supporting these independent multimember commissions.  Some of the strongest Founding era examples of tenure-protected officers were those serving on multimember commissions such as the Sinking Fund Commission (described in my work here and here) and the Revolutionary War Debt Commission (described in recent work by Victoria Nourse as well as my new paper).  

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Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

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