A Textualist Defense of the Major Questions Doctrine
Critics claim the doctrine is obviously at odds with textualism. But that isn't the case.
Executive Power
Today at the Supreme Court: Biden's Student Loan Cancellation Plan on Trial
The Supreme Court considers the scope of presidential power in Biden v. Nebraska and Department of Education v. Brown.
Showdown Over Student Loan Forgiveness Hits Supreme Court Tomorrow
Plus: Texas prosecutors can't criminally charge people who help others access out-of-state abortions, food trucks fight rules banning them in 96 percent of North Carolina city, and more...
Biden Promised a Return to 'Rule of Law' Governance. His Record Says Differently.
Like his predecessors, the current president ignores the law when it suits him.
Presidents' Day Is a Good Reminder To Treat the Presidency With Skepticism
While the office was created with "modest authority and limited responsibilities," the modern president has increasingly unchecked power and authority.
Supreme Court Cancels Oral Argument in Title 42 "Public Health" Expulsion Case
The move makes it more likely that Title 42 expulsions of migrants will end in the near future.
"Third-Party Standing" Doctrine Shouldn't be Used to Block Lawsuits Challenging Biden's Student Loan Forgiveness Plan
Legal scholar Michael Dorf claims Supreme Court should rule on this basis. But the doctrine doesn't apply to this case, and is dubious anyway.
The Biden Administration Flirts With Imposing Nationwide Rent Control Via Executive Action
The White House's idea of using Freddie Mac and Fannie Mae to adopt rent control faces numerous legal and practical hurdles.
Sixth Circuit Upholds Injunction Against Biden Administration COVID-19 Vaccine Mandate for Federal Contractors
The U.S. Court of Appeals for the Sixth Circuit concludes the President exceeded the scope of his delegated authority.
The 5th Circuit Says the ATF Exceeded Its Legal Authority When It Banned Bump Stocks
The decision defends the separation of powers and the rule of law against an attempt to prohibit firearm accessories by administrative fiat.
Podcast on United States v. Texas
In this Federalist Society podcast on a major immigration case currently before the Supreme Court, I go over the issues at stake, and make some tentative predictions about the case's likely outcome.
Supreme Court Decides to Hear Second Case Challenging Legality of Biden's Loan Forgiveness Plan
Like the first case, it will be argued in February. In the meantime, the plan remains blocked.
Loan Forgiveness Litigation Roundup
This post covers significant developments in cases challenging Biden's loan-forgiveness plan other than the one Supreme Court has decided to hear.
Supreme Court Will Hear Case on Legality of Biden Loan Forgiveness Plan
In the meantime, the justices left in place a lower court injunction against the plan. That probably doesn't bode well for the Biden Administration's chances of winning.
Biden Administration Asks Supreme Court to Lift Injunction Blocking their Massive Loan Forgiveness Program
The Supreme Court's resolution of this procedural issue may be a preview of the justices' views on the ultimate resolution of the student loan forgiveness litigation.
Trump Says Taking Presidential Records to Mar-a-Lago Automatically Made Them His Property
According to the former president's lawyers, his decision to retain the documents made them "personal."
8th Circuit Rules States Have Standing to Challenge Biden's Loan Forgiveness Plan [Updated]
The decision overrules a trial court ruling and likely paves the way for a decision on the merits striking down the program.
Yale Journal on Regulation Symposium on Peter Shane's "Democracy's Chief Executive"
Participants include Daniel Farber, Keith Whittington, Cristina Rodriguez, Lisa Heinzerling, and myself, among others.
Biden Mistakenly Imagines That Congress Approved His Student Debt Cancellation Scheme
The lack of statutory authority is the main issue raised by legal challenges to the plan.
National Constitution Center Project Offers Constitutional Amendment Proposals with Broad Cross-Ideological Support
The proposals were agreed on by members of the conservative, libertarian, and progressive teams participating in the NCC's earlier constitution drafting project.
Six States File Lawsuit Challenging Biden Student Debt Cancellation Program
The lawsuit has a more conventional - and stronger - basis for standing than that filed yesterday by the Pacific Legal Foundation.
The First Significant Lawsuit Challenging Biden's Student Loan Forgiveness Plan [Updated]
It was filed by Pacific Legal Foundation public interest lawyer Frank Garrison, and includes a novel strategy for getting around the problem of standing.
After 975 Days, Washington's Governor Will Finally Relinquish His Emergency Pandemic Powers
Gov. Jay Inslee says Washington state's COVID-19 emergency will finally come to an end on October 31.
Assessing an Alternative Legal Justification for Biden's Student Loan Debt Cancellation Policy
Relying on Section 432(a) of the Higher Education Act of 1965, as some propose, has many of the same flaws as the Administration's emergency powers theory.
Will Biden's Student Loan Debt Cancellation Plan Hold Up in Court?
The president claims broad authority to act under a post-9/11 law.
The Student Loan Forgiveness Fiasco
Plus: Spider study sheds light on how misinformation spreads, Airbnb regulation ruled unconstitutional, and more...
D.C. Circuit Upholds the Bump Stock Ban, Saying It Is Consistent With the 'Best Interpretation' of the Law
It is hard to see how, given the contortions required to deliver the unilateral prohibition that Donald Trump demanded.
Cato Supreme Court Review Article on the Supreme Court's January 2022 Vaccine Mandate Decisions
I am one of the relatively few people who think the Court got both cases right.
The 5th Circuit Considers Whether the Trump Administration Was Legally Authorized To Ban Bump Stocks
Regulators imposed the ban based on a highly implausible and counterintuitive reading of federal law.
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.
