Executive Power
If You Care About Democracy, Don't Ask Biden To Invoke Emergency Powers
Implementing policy is supposed to be difficult given that it could affect millions of people’s lives.
Trump and Steve Bannon Waive Executive Privilege they do not Have
The "waiver" opens the door for Bannon to testify before the congressional January 6 Committee. But former presidents are not entitled to executive privilege, and especially not when it comes to testimony by private citizens.
Supreme Court Ruling in "Remain in Mexico" Case is a Win for Biden, Migrants - and Fans of Presidential Power
The ruling likely allows end of a cruel policy - but also reinforces broad presidential control over immigration.
The Defense Production Act Has Become a License for Central Planning
If home insulation is a "critical technology item essential to the national defense," then what isn't?
The 10th Anniversary of DACA
A compendium of my writings defending the morality and legality of this program - but also warning that it remains imperiled unless and until Congress passes a law institutionalizing it.
New Resolution Would Allow the President To Send U.S. Troops to Ukraine
Like AUMFs before it, Rep. Adam Kinzinger’s proposed authorization would lead to less transparency in conflicts and more unilateral decision making.
COVID Revealed America To Be a Nation of Rulers, Not of Laws
Life is returning to "normal" after two years, but that normal includes even fewer limits on executive powers.
My New Article on "Nondelegation Limits on COVID Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases"
The eviction moratorium and Title 42 "public health" expulsion cases have many parallels that may have been ignored because of their differing ideological valence. Both strengthen the case for nondeferential judicial review of the exercise of emergency powers.
Progressive Lawmakers Ask Joe Biden To Do Their Jobs for Them With Executive Orders
Someone might want to remind them that Democrats have a majority in both congressional chambers.
Washington Legislature Won't Limit Gov. Jay Inslee's Indefinite, Dictatorial COVID Emergency Powers
Then why even have a legislature?
New York State Supreme Court Judge Strikes Down Statewide Mask Mandate
The New York State Supreme Court ruled that Governor Hochul and the health commissioner did not have the authority to mandate a masking requirement
Starbucks Rescinds Employee COVID-19 Vaccine Mandate
Starbucks has decided the vaccine mandate isn't good for their business
In the Case That Blocked OSHA's Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard
The crux of the argument is the distinction "between occupational risk and risk more generally."
Divided Sixth Circuit Panel Refuses to Stay Injunction Against Vaccine Mandate for Federal Contractors
The panel rejects the argument that the Federal Property and Administrative Services Act allows the federal government to require vaccination for nearly one-fifth of the American workforce.
George Will Loves To Argue About America
The octogenarian columnist has a lot to say about happiness and history in the United States.
Would an Independent Commission Solve the Clemency Backlog?
A new bill would transfer the review of petitions from the Justice Department to a presidentially appointed board.
D.C. Circuit Rejects Trump Effort to Block Release of Documents to January 6 Committee
Will the Supreme Court step in?
District Court Issues National Injunction Against Biden Administration Vaccine Mandate for Federal Contractors
Two federal district courts have now ruled against the mandate for federal contractors.
A Federal Judge Denied Trump's Claims of Permanent Executive Privilege
In denying the former president's claims of executive privilege, a federal judge sets a blueprint which should apply to sitting presidents as well.
DC Circuit Temporarily Blocks Release of White House of January 6 Documents
A panel of the court will hear Trump’s challenge to the release of material on an expedited basis.
District Court Rejects Trump's Executive Privilege Claim for January 6 Records (Updated)
In a well-reasoned opinion, the district court rejects the former President's efforts to prevent the release of information by the National Archives to the January 6 Committee.
Holding Steve Bannon in Contempt
Congress prepares to assert its investigative authority.
The Ultimate Check: Understanding the Impeachment Clause
The history isn’t unambiguous, but it leans toward expanding impeachment beyond criminal offenses.
The President at War
History supports neither the plenary presidential power advocated by some nor the complete congressional dominance advocated by others.
The Domestic Policy Czar
A revival of the nondelegation doctrine isn’t likely to massively retrench either the scope of the regulatory state or the president’s ability to steer agency discretion.
The Bureaucrat in Chief
Behind the technicalities of the appointment and removal power is a difficult tradeoff between democratic accountability and impartiality in implementing laws.
Taking a Fresh Look at Presidential Power
Political polarization inevitably warps our views of presidential actions, making an even-handed approach all the more crucial.
Federal Court Rules Against Title 42 "Public Health" Expulsions of Migrants
The expulsions, ordered by the CDC for the supposed purpose of stopping the spread of Covid-19, are illegal for much the same reasons as was the CDC eviction moratorium recently struck down by the Supreme Court.
Can Biden's Vaccination Rule for Private Employers Survive Judicial Scrutiny?
A broad standard with no exceptions better serves his goals, but it will be harder to defend in court.
Biden's Vaccine Mandate Is the Latest Sign of the Presidency Becoming a Monarchy
The presidency has always been inclined to unilateral power—and many Americans like it that way.
Rights and Wrongs of Biden's New Vaccination Mandate Policies
Some parts are both good policy and legally unproblematic. Others - particularly the mandate imposed on private employers - are legally dubious and would set a dangerous precedent if upheld by courts.
The Biden Administration's 'Emergency' Vaccine Mandate May Be Vulnerable to Legal Challenges
OSHA has rarely used this option, which avoids the usual rule-making process, and most challenges to such edicts have been successful.
Where Does Biden Get the Authority To Mandate Vaccination?
Emergency OSHA rules are frequently struck down by courts.
Two Big New Ways the Biden Administration Plans To Overstep Its Pandemic Authority
Plus: The vaccine and abortion debates, a promising jobs report, and more...
Biden Admits He Can't Mandate Masks. Why Does He Think He Can Mandate Vaccines?
Biden's sudden embrace of a federal vaccine requirement seems inconsistent with his acknowledgment that he cannot mandate every COVID-19 precaution he'd like people to follow.
Audio of Radio Program on Immigration and the Constitution
Yale Law School Prof. Cristina Rodriguez and I discussed this timely subject with host Stephen Henderson.
Biden Keeps Pushing Dubious Arguments for CDC Supremacy
The president seems determined to anoint the agency’s director as the nation’s COVID-19 dictator, no matter what the law says.
Supreme Court Rules Against the Revised CDC Eviction Moratorium
This outcome was widely expected by legal commentators.
Biden's Eviction Moratorium Defies the Rule of Law
The administration issued the order even while conceding that it lacked the authority to do so.
Senators Aim To Curtail Presidential Power Over War, Arms Sales, Emergency Declarations
Plus: The FBI had at least a dozen informants helping put together the plot to kidnap Michigan's governor, price controls fail again, and more.
If the CDC Can Impose a Nationwide Eviction Moratorium, Why Can't It Impose a Nationwide Vaccine Mandate?
It could, if it actually had the vast public health powers that the Biden administration claims it does.
Andrew Cuomo Declares a Gun Violence 'Disaster Emergency' and Signs a Bill That Invites Lawsuits Against Firearm Suppliers
New York's new law seems to conflict with a federal statute that protects manufacturers and dealers from liability for gun crimes.
Repealing the 2002 AUMF Won't Be Enough To End Forever Wars
Repealing the law that allowed America to depose Saddam Hussein won't stop us from waging war elsewhere.
Legislators Demand a Voice in Public Health Restrictions
The COVID-19 pandemic showed the dangers of letting governors unilaterally, dramatically, and indefinitely magnify their own powers.
Empowered by Voters, Pennsylvania Legislators Are Poised To End the Governor's 15-Month COVID-19 Emergency
The resolution is part of a broader movement to rein in executive power during emergencies.
Gov. Gavin Newsom Clings to COVID-19 Emergency Powers
The state is scheduled to ease its lockdowns on June 15. But Newsom still wants the power to control the terms.
