Constitutional Law

“Freedom of speech by instructors must be protected, but it is not absolute and the 9th Circuit here misapplied the law in finding constitutional protection for expression where none was warranted,” writes Dean Erwin Chemerinsky.

“What will be the fate of Bostock v. Clayton County, Georgia, the Supreme Court’s 2020 landmark ruling protecting gay, lesbian, and transgender individuals from employment discrimination?” writes Dean Erwin Chemerinsky in his Courtly Observations column. “Over the last year, the court has failed to follow the logic of Bostock in upholding discrimination against transgender individuals.”

“If Renee Good had been killed by a state or local police officer rather than an ICE agent, her family could sue the shooter for excessive force and violating her rights,” writes Dean Erwin Chemerinsky. “But there is no law that allows federal officers to be sued for their constitutional violations.”

Dean Erwin Chemerinsky and Professor John Yoo debate the legal and constitutional issues surrounding President Trump’s military operation to capture Nicolás Maduro.

“The most important question for our democracy in 2026 is whether there will be meaningful checks on President Donald Trump,” writes Dean Erwin Chemerinsky.

It remains a legally thorny question about “whether prohibiting schools, including teachers and staff, from informing parents violates the right of parents to control the upbringing of their children,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. Chemerinsky criticized the ruling and said it should be vulnerable to an appeal. All the same, “the question is how to balance the parents’ rights against the speech interests and autonomy of the children.”

“The invasion of Venezuela shows how far we have come from being a nation under a Constitution based on checks and balances,” writes Dean Erwin Chemerinsky. “It is imperative that Congress reassert its constitutional powers.” 

“Ultimately, the question is whether the Supreme Court will check a president who, in the words of his chief of staff, feels he can do anything,” writes Dean Erwin Chemerinsky. “Nothing was more important in 2025, or is likely to be more important in 2026, than this.”

John Yoo, professor at UC Berkeley Law, said the “constitution does not require Congress to declare war before the president initiates hostilities.” “Congress has the check, before war, of funding to reduce the size and shape of the military available to the president,” he said, adding that Congress has the power of impeachment to challenge a president’s actions.

John Yoo, a Berkeley law school professor and veteran of the George W. Bush Justice Department who is a critic of post-Watergate constraints on the presidency, nonetheless acknowledges that weakening those protections can cut two ways.

“Every time you pull down one of them, you pull down one of those meant to control presidential morality.”