Erwin Chemerinsky

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

Recent Articles

Upholding the Rule of Law

The appellate court informs the president that he can’t end-run the Constitution.

AP/Elaine Thompson
(Photo: AP/Elaine Thompson) Washington Attorney General Bob Ferguson speaks at a news conference about the federal appeals court's refusal to reinstate President Trumps ban on travelers from seven predominantly Muslim nations. I n ruling against President Trump’s travel ban, the United States Court of Appeals for the Ninth Circuit reaffirmed a fundamental aspect of the rule of law: No one, not even the president, is above the law. Courts can review the actions of all government officials to ensure their compliance with the Constitution. The lawyers for President Trump argued to the Ninth Circuit that the president’s decisions on matters of immigration are unreviewable by any court. The court forcefully rejected that claim. The judges wrote: “[T]he government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions contravene constitutional rights and protections...

Scalia, the Sequel

An originalist like Antonin Scalia, Neil Gorsuch is guided by 1787 thought processes, which made no provision for a right to privacy, or reproductive choice, or same-sex marriage.

AP Photo/Carolyn Kaster
AP Photo/Carolyn Kaster Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. S enate Democrats face a difficult decision: Do they filibuster Judge Neil Gorsuch’s appointment to the Supreme Court or confirm a justice they know will be very conservative? Senate Democrats are rightly outraged that Republicans stole this seat on the Supreme Court through the unprecedented refusal to hold hearings or a vote on the nomination of Chief Judge Merrick Garland. Everything known about Gorsuch is that he will be a reliable conservative vote across a wide range of constitutional and statutory questions. Democrats remember that there were 48 votes against Clarence Thomas and 42 against Samuel Alito—and in hindsight, that it was a huge mistake not to block them through filibusters. But filibustering Gorsuch risks the Republican majority in the Senate changing the rules...

Awaiting Trump’s Pick

Two of the three favorites for a Supreme Court appointment are merely very conservative. The third is way very conservative. 

(Photo: AP/Cliff Owen)
(Photo: AP/Cliff Owen) Judge William Pryor of the 11th Circuit Court of Appeals on November 17, 2016 W ithout a doubt, President Donald Trump’s pick for the Supreme Court will be very conservative—and the question is what Senate Democrats will do about it. Trump, of course, does not need to pick a justice from the far right. In light of the anger over the Republicans’ stonewalling of Chief Judge Merrick Garland’s nomination, Trump could pick someone from the middle who would be a consensus candidate. But as in selecting his cabinet and announcing his initial policies, Trump has shown zero interest in healing the partisan divide. The rumored frontrunners for the Supreme Court—Neil Gorsuch, Thomas Hardiman, and William Pryor—are all individuals highly recommended by the Heritage Foundation and the Federalist Society because each would be a conservative justice in the mold of Antonin Scalia. Neil Gorsuch, 49, is a judge on the United States Court of Appeals for the Tenth Circuit in...

What Next for Obama’s Immigration Action?

Even after the Supreme Court failed to overturn an anti-immigrant ruling, the president still has options.

Tom Williams/CQ Roll Call via AP Images
Tom Williams/CQ Roll Call via AP Images Immigration reform supporters rally outside of the Supreme Court as oral arguments are heard on President Obama's executive actions which would help defer deportation for undocumented people, April 18, 2016. P resident Obama suffered a major defeat in the Supreme Court when the justices split 4-4 on the legality of his immigration action, Deferred Action for Parents of Americans (DAPA). The result of this deadlock is that a federal district court’s nationwide preliminary injunction keeping DAPA from going into effect remains in place. What options does President Obama have now? DAPA, which was announced by Obama in November 2014, provides deferred deportation status to undocumented individuals who have been in the country since 2010 if they do not have a criminal record and if they have a child who is a citizen or lawfully present in the United States. This would allow about four million people to live temporarily without constant fear of...