Katherine Mims Crocker (Texas A&M University School of Law) has posted To Keep Government Generally Within the Bounds of Law (139 Harvard Law Review (forthcoming 2026)) on SSRN. Here is the abstract:
The current President of the United States has a relationship with the law that is casual at best and contemptuous at worst. Whether we are facing a constitutional crisis has thus become a topic of debate among legal scholars and the broader public. The answer turns in important part on the extent to which the judiciary can help confine the emboldened executive to constitutional limitations. But alongside individual judges, the institution of judicial review (meaning the authority of courts to determine whether government actions comply with the law, and to counteract them if not) is under attack from multiple directions. Combatants include President Trump, administration officials, congressional partisans, and state lawmakers. The Supreme Court has entered the fray.
This Symposium, “Judicial Review in Jeopardy?,” seeks to make sense—and suggest some ways out—of these circumstances. To do so, this Foreword aims to demonstrate, we should view judicial review through the lens of Richard Fallon and Daniel Meltzer’s contention that our constitutional structure “demands a system of constitutional remedies adequate to keep government generally within the bounds of law.” And to realize that system, federal courts must remain willing—and recognize their authority—to both check and balance expansive assertions of political power.
Professors Fallon and Meltzer exalted decision-making about distributing constitutional remedies “governed ‘not by metaphysical conceptions of the nature of judge-made law, nor by the fetich of some implacable tenet, such as that of the division of governmental powers, but by considerations of convenience, of utility, and of the deepest sentiments of justice.’” By balancing formalism with realism and doctrinal care with civic concern, this Symposium reflects considerations of “the deepest sentiments of justice”—and does Fallon, to whom it is dedicated, proud along the way. Judicial review is in jeopardy. But the contributions here offer hope that the peril need neither persist nor prevail.
Highly recommended!