Before coming to MSU College of Law in 2000, Brian Kalt was an associate at the Washington, D.C., office of Sidley Austin. He earned his juris doctor from Yale Law School, where he was an editor on the Yale Law Journal. After law school, he served as a law clerk for the Honorable Danny J. Boggs, U.S. Court of Appeals for the 6th Circuit. Professor Kalt's research focuses on structural constitutional law and juries. At MSU Law, Kalt teaches Tort and Administrative law.
Industry Expertise (6)
Writing and Editing
Areas of Expertise (5)
Structural Constitutional Law
The Bill of Rights
Harold Norris Faculty Scholar (professional)
Awarded by Michigan State University
Crystal Apple Award (professional)
Awarded by MSU College of Education
Yale Law School: J.D. 1997
University of Michigan: A.B., with Highest Distinction 1994
- State Bar of Michigan
- United States Courts of Appeals: District of Columbia Circuit; Sixth Circuit
- Federalist Society
- Life Member, Sixth Circuit Judicial Conference
Reminder: The 25th Amendment requires political apocalypse
What would it take to employ the 25th Amendment? As we've written before, there are a few scenarios that leap to mind (and read these articles by Brian Kalt and David Pozen for some more context) in which the 25th Amendment could be invoked.
'The Resistance Inside The Trump Administration': A Constitutional Crisis?
Brian Kalt: "I think, as the op-ed writer said, it wouldn't work. It would make things worse. The 25th Amendment, section four in particular, it was designed to make sure that if the president was incapacitated there was someone who could pick up the reins immediately. And they wanted to make sure it wasn't used for presidents who were unfit or who were inept or any of those other things. We already have a process to get rid of presidents who are doing a bad job. This was supposed to not supplant that, so they designed it so that if you tried to use it for that, it wouldn't work."
Why the 25th Amendment Is a Dead End
Even worse: Brian Kalt has floated a true nightmare scenario. As he points out, there’s at least some ambiguity in the text of the 25th about how much of a delay is required between when the president reasserts his ability to serve and the point at which the vice-president and the majority of the cabinet transmit their belief that the disability continues. Trump might claim that he was entitled to the “powers and duties” in the interim, or perhaps even until Congress voted to confirm his inability to govern. In other words, the 25th might give us a period in which two people had at least plausible claims to the office. Now that’s what I’d call a constitutional crisis.
Understanding the 25th Amendment
Law Professor Brian Kalt at Michigan State College games out how difficult implementing the 25th Amendment about fitness for office would be utilized against President Trump.
What the Arpaio pardon reveals about Trump’s take on the rule of law
PBS Newshour online
President Trump's Friday night pardon of former Maricopa County Sheriff Joe Arpaio -- convicted of defying a court order to stop targeting undocumented immigrants -- drew swift criticism, even from fellow Republicans. What makes the controversial pardon so noteworthy? John Yang is joined by Brian Kalt of Michigan State University to discuss its significance.
Trump nominates Neil Gorsuch to Supreme Court
The Detroit News
“Gorsuch has stellar credentials and an excellent reputation: smart, collegial, and a good writer,” said Brian Kalt, a Michigan State University law professor. "One might think of him as the classic insider, and thus not the sort of person Trump might favor, but that just goes to show how well-respected he is as a judge.”...
There's a section of Yellowstone where you can get away with murder
The book's premise originates from a 14-page article called "The Perfect Crime" by Michigan State University law professor Brian Kalt. The article describes a judicial no-man's land in the Idaho part of Yellowstone, where a person can commit a crime and get off scot-free due to sloppy jurisdictional boundaries...
Journal Articles (5)
Eligible voters who have left the United States permanently have the right to vote in federal elections as though they still live at their last stateside address. They need not be residents of their former states, be eligible to vote in state and local elections, or pay any state or local taxes. Federal law—the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)—forces states to let these former residents vote for President, the Senate, and the House this way. There are several constitutional problems with all of this...
When no presidential candidate wins a majority in the electoral college, the House of Representatives holds a “contingent election” between the top three candidates. Unfortunately, if one of those three candidates should die there is no way to provide a substitute, so the dead candidate’s supporters and party would be disenfranchised.
This article is a response to Benjamin Cassady’s recent article, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify. It agrees with Your Crook that disqualification does not apply to election to the House or Senate, and that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous.
The Ninth Amendment declares that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Scholars have developed a rich literature on the Ninth Amendment, but they have focused nearly exclusively on how courts should treat the amendment’s mysterious unenumerated rights.
Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear. This note makes the case against the validity of self-pardons, using arguments from the Constitution's history, text, and structure, and from general legal principles.