Judge Neomi Rao on "The Province of the Law"
A belated 2021 lecture sponsored by the Georgetown Center for the Constitution
Separation of Powers
If the CDC's Mask Mandate Is 'Necessary for the Public Health,' Why Didn't the DOJ Seek a Stay To Restore It?
The Biden administration's main priority seems to be leaving the agency's authority vague enough to allow future interventions.
The DOJ Is Reluctant To Continue Defending the CDC's Mask Mandate Because It Worries It Will Lose Again
Clarifying the agency's authority could impede future power grabs.
Even If the CDC's Mask Mandate Made Sense, That Would Not Make It Legal
The decision against the rule hinged on whether the agency had the power it asserted.
Did Ketanji Brown Jackson Flout the Law When She Reduced a Drug Dealer's Sentence?
The Supreme Court nominee's critics say she clearly did, but several federal appeals courts disagree.
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.
Opponents of the Texas Abortion Ban Still Have Ways To Challenge It
Although a Texas Supreme Court ruling ended the main challenge to the law, other cases could ultimately block its enforcement.
OSHA's Vaccine Mandate Illustrates the Perils of Reflexively Deferring to Government Experts
The question for the Supreme Court was not whether the policy was wise but whether it was legal.
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."
The Supreme Court Seems Inclined To Block OSHA's Vaccine Mandate
Most of the justices appear to be skeptical of the argument that the agency has the power it is asserting.
Here Is Why the 6th Circuit Reinstated OSHA's Vaccine Mandate—and Why One Judge Disagreed
The argument hinges largely on what makes an emergency standard "necessary."
Here Is Why a Texas Judge Concluded That the State's Abortion Ban Is Unconstitutional
District Court Judge David Peeples focused on the law's "unique and unprecedented" enforcement mechanism rather than abortion rights.
The Biden Administration Is Asking an Appeals Court to Lift the Order Blocking OSHA's Vaccine Mandate
The government argues that the 5th Circuit erred in concluding that the rule "grossly exceeds OSHA's statutory authority."
Extending Its Stay, the 5th Circuit Says OSHA's Vaccine Mandate Is 'Fatally Flawed'
A unanimous three-judge panel concludes that the decree "grossly exceeds OSHA's statutory authority."
Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA's Vaccine Mandate for Private Employers
The appeals court said the rule, which was published on Friday, raises "grave statutory and constitutional issues."
Holding Steve Bannon in Contempt
Congress prepares to assert its investigative authority.
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.
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.
Critics of the SCOTUS Decision Against the CDC's Eviction Moratorium Might Miss the Rule of Law When They Need It
The Court said it "strains credulity" to believe that Congress gave the CDC the "breathtaking amount of authority" it asserted.
Supreme Court Rules Against the Revised CDC Eviction Moratorium
This outcome was widely expected by legal commentators.
Pioneer Institute Podcast on the Revised Federal Eviction Moratorium
Interviewer Joe Selvaggi and I explore the constitutional and policy issues at stake.
"This Is No Way to Rule a Country"
If an eviction moratorium is needed, why wouldn't the legislature try to enact one?
John Marshall Argued for the Independence of Federal Prosecutors
Professor Matthew Steilen points to an interesting letter to St. George Tucker
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.
The CDC's New Eviction Moratorium Has Virtually all the Same Flaws as the Old
It still covers some 90% of the country, and still rests on a theory of virtually limitless CDC authority. Even President Biden acknowledges the order is legally dubious.
11th Circuit Refuses to Issue Injunction Against CDC Eviction Moratorium - but Doesn't Rule on the Moratorium's Legality
The decision is based on the conclusion that the landlords failed to prove they suffered an "irreparable" injury. It upholds a trial court ruling denying a preliminary injunction to landlords challenging the moratorium.
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.
Why Didn't COVID-19 Kill the Constitution?
We can thank judges who were prepared to enforce constitutional limits on public health powers.
At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.
Brett Kavanaugh, who provided a crucial fifth vote, said he agrees that the CDC does not have the authority to override rental contracts.
Did Congress Give the CDC More Authority Than the President?
The agency’s legal defense of its eviction moratorium implies that it has vast powers to order Americans around.
CDC Eviction Moratorium Extended Again
The latest extension, which is expected to the be last, runs until July 31. Meanwhile, the legal battle over the moratorium will continue. And the plaintiffs' position is likely to be strengthened by the Supreme Court's recent ruling in Cedar Point Nursery v. Hassid.
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.
The 9th Circuit Considers Whether the DEA's Classification of Marijuana Violates Federalism and the Separation of Powers
The puzzle of marijuana's Schedule I status invites a reconsideration of the agency's vast discretion to decide which substances should be prohibited.
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.
Departmentalism: What Is the Executive Role in Interpreting the Laws? A Panel Discussion
A panel from the 2021 Federalist Society Ohio Lawyers Chapters Conference
Federal Regulators Require Rent Collectors To Lie About the CDC's Illegal Eviction Moratorium
The Consumer Financial Protection Bureau claims to be enforcing a law that prohibits "false or misleading representations."
"Retroactive" Liability after Barr v. AAPC
Judge Stephanos Bibas "does not see how" he can follow the plurality opinion
The Bump Stock Ban Highlights the Danger of Letting Bureaucrats Invent Crimes
A federal appeals court rejects a highly implausible redefinition of machine guns.
COVID-19 Edicts Highlight the Importance of Structural Limits on Government Power
The national eviction moratorium and Arizona’s business restrictions were based on dubious assertions of authority.
Will Democrats Embrace the Imperial Presidency Now That Their Guy Is in Charge?
Partisans who abandon constitutional principles because they prove inconvenient are in for a rude surprise when the other team wins.
Biden's Mask Mandate Retreat Is a Hopeful Sign
The president acknowledges that there are limits to executive power, even during a public health emergency.
How Biden Can Terminate Trump's Border Wall Project - And Save Money and Protect Property Rights in the Process
Joe Biden can easily stop further work on the wall, protect property owners against further takings of private property, and save money in the process. Additional steps may be tougher, but are still worth considering.
Justin Amash Introduces Bill To End Forever National Emergencies
Current law can allow the president to route around Congress indefinitely.
Ted Cruz's Eagerness To Fight Trump's Legal Battles Epitomizes the GOP's Complete Lack of Principles
By his own account, the Texas senator is committed to defending a dishonest, amoral, narcissistic bully.
Alito Rightly Slams Five Democratic Senators for 'Bullying' the Supreme Court
The senators warned that the Court might have to be "restructured" if it did not reach the conclusion they preferred in a Second Amendment case.
SCOTUS Adds Another Appointments Clause Case to the Docket
When must claimants raise appointments-clause challenges?
Why isn't Court-Packing Unconstitutional?
It is easy for originalists to reject challenges to court-packing; but the non-originalist arguments should be spelled out
Gavin Newsom's California Business Closures Are 'Autocratic, One-Man Rule,' Argues New Lawsuit
California's COVID-19 business closures have turned Ghost Golf into a shadow of its former self. Its owner is now suing the governor for the right to reopen.