Manoj Mate (University at Buffalo Law School) has posted Voids of Constitutional Law (forthcoming, 59 LOYOLA OF LOS ANGELES LAW REVIEW _ (2026)) on SSRN. Here is the abstract:
Although the U.S. Constitution has long been held out as a model for a particular type of constitutionalism, recent developments have drawn attention to those aspects of the U.S. legal order that are marked by the absence or avoidance of application of substantive law. Since the first Trump administration, the Supreme Court has issued decisions and orders that create different types of voids of constitutional law, including Trump v. Hawaii, Trump v. United States, and Trump v. CASA. In this article, I situate these recent decisions within the broader arc of the Court’s jurisprudence. I argue that the presence of these voids within our constitutional order is not a new development, but rather part of structurally embedded dimensions of constitutional jurisprudence and systemic aspects of federal court adjudication.
The article examines the Court’s creation of voids of constitutional law through close study of recent decisions and orders in the areas of executive power and separation of powers, immigration, and election law. It begins by situating voids within conceptions of the rule of law and the scope of equitable power and remedies. The article examines both the jurisprudential and systemic sources of voids of constitutional law, and then identifies three types of voids—substantive, procedural and temporal voids. It then proceeds to examine specific case studies that illustrate the operation of legal voids across different domains and areas of law. It then examines different methods of void creation and considers the harms cause by void creation to separation of powers, rights and representation, and concludes by considering the broader implications of the article for void prevention approaches, conceptions of judicial supremacy and the role of the Court.
Highly recommended.