On the Biden/Harris Court "Reforms"
So much for constitutional norms
Separation of Powers
Trump Values Judicial Independence Only When It Benefits Him
His criticism of President Joe Biden’s proposed Supreme Court reform is hard to take seriously.
The Federal Trade Commission Needs To Stay in its Lane
Recent actions by the FTC show that its officers should review the Constitution.
Federalism Could Heal a Divided Nation
There’s less reason to fight when one-size-fits-all policies are replaced with local diversity.
Determined To Avoid Presidential Paralysis, SCOTUS Endorses Presidential Impunity
We need not conjure "extreme hypotheticals" to understand the danger posed by an "energetic executive" who feels free to flout the law.
Why the Media Covered for Biden
Plus: A listener asks whether Bruce Springsteen's song Born in the U.S.A is actually patriotic.
Presidential Immunity As a Question of Executive Power
There is no textual basis for "immunity" as such, but there are structural reasons why some degree of insulation is inevitable.
Two SCOTUS Cases Show How an Unaccountable Administrative State Hurts 'Ordinary People'
Contrary to progressive criticism, curtailing bureaucratic power is not about protecting "the wealthy and powerful."
Supreme Court's Presidential Immunity Ruling Could Shield Outrageous Abuses of Power
By requiring "absolute" immunity for some "official acts" and "presumptive" immunity for others, the justices cast doubt on the viability of Donald Trump's election interference prosecution.
SCOTUS Repudiates Doctrine That Gave Agencies a License To Invent Their Own Authority
The Court says Chevron deference allows bureaucrats to usurp a judicial function, creating "an eternal fog of uncertainty" about what the law allows or requires.
The Supreme Court May Be on the Brink of Radically Restricting Bureaucrats' Power
Chevron deference, a doctrine created by the Court in 1984, gives federal agencies wide latitude in interpreting the meaning of various laws. But the justices may overturn that.
Critics Fundamentally Misconstrue the Supreme Court's Bump Stock Ruling
The case hinged on the ATF’s statutory authority, not the Second Amendment.
Abortion, Guns, and Hunter Biden.
Plus: A listener asks the editors about the Selective Service.
Supreme Court Upholds the Rule of Law by Rejecting the Trump Administration's Bump Stock Ban
Six justices agreed that federal regulators had misconstrued the statutory definition of a machine gun.
The Collective-Action Constitution in an Era of Polarization and Animosity: An Elegy?
Fifth in a series of guest-blogging posts.
SCOTUS Weighs the Risk of Presidential Timidity Against the Risk of Presidential Impunity
Most of the justices seem skeptical of granting Donald Trump complete immunity from criminal prosecution for "official acts."
The Alarming Implications of Trump's Immunity Claim
The Supreme Court will decide whether former presidents can avoid criminal prosecution by avoiding impeachment and removal.
SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats
Several justices seemed troubled by an ATF rule that purports to ban bump stocks by reinterpreting the federal definition of machine guns.
4 Reasons Trump Says a Judge Should Dismiss Charges in the Classified Documents Case
His lawyers assert presidential immunity and discretion, criticize an "unconstitutionally vague" statute, and question the special counsel's legal status.
Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity
The case raises an issue of high importance and the opinion may contain some loose reasoning.
The D.C. Circuit Unanimously Rejects Trump's Audacious Presidential Immunity Claim
The appeals court says it "cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter."
Biden Reportedly Is Planning To Unilaterally Mandate Background Checks for All Gun Sales
A watchdog group cites ATF "whistleblowers" who describe a proposed policy that would be plainly inconsistent with federal law.
12 Senators Urge the DEA To Legalize Marijuana, Which Only Congress Can Do
Under the Controlled Substances Act, the agency does not have the discretion to "deschedule marijuana altogether."
SCOTUS Ponders the Ambiguity of 'Ambiguous' and Other Chevron Doctrine Puzzles
The justices seem inclined to revise or ditch a 1984 precedent that requires deference to executive agencies' statutory interpretations.
The Chevron Doctrine Discomfits the Weak
Excessive judicial deference gives administrative agencies a license to rewrite the law in their favor.
Does Biden Need Congressional Authorization for His Strikes Against the Houthis? [Updated]
The answer is likely "no" for US military action so far, because it is a defense against attack. But a broader conflict or one of much longer duration would be different.
D.C. Circuit Seems Skeptical of Trump's Alarmingly Broad Presidential Immunity Claim
As one appeals court judge pointed out, Trump's defense could literally let a president get away with murder.
The D.C. Circuit Mulls Trump's Alarmingly Broad Claim of Presidential Immunity From Prosecution
His lawyers say no jury can ever consider charges based on his "official acts" as president, which include his efforts to reverse Joe Biden's election.
5th Circuit Reluctantly Rules Against Victim of a Prosecutor Who Was Also a Law Clerk
Ralph Petty's "conflicted dual-hat arrangement" as an advocate and an adjudicator was "utterly bonkers," Judge Don Willett notes.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Arizona Restaurant Owner Sues Over Costly Cage-Free Egg Mandate
The Arizona Department of Agriculture says all eggs sold must be cage-free, a power that according to the lawsuit belongs to the state legislature.
The Supreme Court Should Not Let Bureaucrats Invent Crimes by Rewriting the Law
The Trump administration’s unilateral ban on bump stocks turned owners of those rifle accessories into felons.
A Blatantly Unconstitutional Gun Edict Highlights the Hazards of Emergency Powers
New Mexico Gov. Michelle Lujan Grisham thinks violent crime gives her a license to rule by decree.
How Hunter Biden's Plea Deal Fell Apart
A federal judge objected to two aspects of the agreement that seemed designed to shield Biden from the possibility that his father will lose reelection next year.
Why Israelis Are Taking to the Streets
The furious response to a seemingly modest reform reflects a broader dispute about the role of courts in a democracy.
A 2007 Debate Provoked by Richard Posner Illuminates the Current Clash Over Judicial Power in Israel
The appeals court judge argued that the Israeli Supreme Court had usurped the role of legislators.
The Perils of 'Rule by Indefinite Emergency Edict'
Supreme Court Justice Neil Gorsuch highlights a vital lesson from the COVID-19 pandemic.
Neither the Constitution Nor Common Sense Supports the Argument the Debt Ceiling Is Unconstitutional
Professor Prakash dispatches the arguments for unilateral Presidential authority to disregard the debt ceiling.
Trump's Disregard for the Rule of Law Is at Least As Bad As Biden's
The former president reminds us that claiming unbridled executive power is a bipartisan tendency.
Fifth Circuit Issues Administrative Stay Blocking District Court Decision Striking Down Obamacare Preventive Care Insurance Mandates
The stay is only temporary, and could be quickly lifted. But it's still a negative sign for the plaintiffs in the case.
Pacific Legal Foundation Call for Papers on Agency Adjudication
The papers are for an upcoming conference on the topic of whether federal agency adjudication of private rights should be curbed or ended. There is a $2500 honorarium for authors of selected papers.
Supreme Court to Consider Whether Members of Congress Have Article III Standing to Sue Federal Agencies
The Supreme Court has accepted certiorari in Carnahan v. Maloney to consider whether members of Congress can sue to force disclosure of information from the General Services Administration.
The Eternal Recurrence of Debt Ceiling Debates
The current debate is a replay of debates we have had before (and will likely have again).
Will Separation of Powers Doom Biden's Student Debt Plan?
Biden v. Nebraska has far-reaching implications for presidential power.
