American democracy is under siege.  This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or outright rebellion against the results of democratic elections. These three trends together pose an existential threat to the whole idea of democratic self-governance.  This Article therefore makes the case for heightened judicial scrutiny in order to protect democratic processes against partisan and discriminatory entrenchment.  In making this argument, we seek to revive the political process rationale for heightened judicial scrutiny.

This Article challenges the premise Congress must take such a passive approach to judicial review, expressing policy preferences in seriatim fashion (and being “sent back to the drawing board” each time a policy fails). This approach merely reflects institutional habits. And by failing to question these habits, reformers forfeit an enormous amount of legislative power.

When President Trump was elected president, he held various domestic and international business interests and upon taking office was sued and it was claimed he was in violation of the foreign and domestic emoluments clauses. The Office of Legal Counsel (OLC) was not consulted on the question of whether President Trump could continue to receive payments through his businesses as president. This article proposes that had the OLC been asked it would have concluded that the president was in violation of both clauses to the extent that any profits and payments received were sourced from government entities, whether foreign or domestic.