The Perils of 'Rule by Indefinite Emergency Edict'
Supreme Court Justice Neil Gorsuch highlights a vital lesson from the COVID-19 pandemic.
Separation of Powers
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.
Federal Court Strikes Down Obamacare Preventive Care Insurance Mandates
The ruling is based on separation of powers and Religious Freedom Restoration Act grounds.
The Israeli Fight Over Judicial Review Highlights the Dangers of Unconstrained Democracy
Opponents of the proposed reforms are right that unlimited majority rule is a recipe for tyranny.
A Major New Defense of the Major Questions Doctrine
Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.
In the Israeli Battle Over Judicial Review, Democracy Is the Problem, Not the Solution
Opponents of the reforms favored by Prime Minister Benjamin Netanyahu's coalition should acknowledge the threat posed by unconstrained majority rule.
Biden's Plan To Unilaterally Expand Background Checks for Gun Buyers Is Legally and Logically Dubious
The president wants to redefine federally licensed gun dealers in service of an ineffective anti-crime strategy.
Biden's Attack on 'Ghost Guns' Fits a Pattern of Lawless Firearm Regulation
The president and his predecessor both tried to impose gun control by executive fiat.
Can the Vice President Invoke the Speech or Debate Clause Privilege at All? [Updated]
Professor Michael McConnell writes to suggest that even if Vice President Pence was performing legislative functions on January 6, the Constitution's text does not extend the privilege to him.
Probing the Limits of Speech or Debate Clause Privilege for Perry and Pence
The January 6 invistigations have renewed interest in this somewhat obscure constitutional provision and the scope of its protections.
A Texas-Backed Lawsuit Argues That the ATF's Pistol Brace Rule Is Arbitrary and Unconstitutional
Although the law did not change, regulators suddenly decided to criminalize unregistered possession of braced pistols.
Florida Legislature May Impose Penalties on Local Legislators Who Illegally Impose Gun Control Laws
So the Florida Supreme Court held today.
A Federal Judge Says the DOJ's Sex Offender Registration Rules Violate Due Process by Requiring the Impossible
Justice Department regulations threaten people with prosecution for failing to register even when their state no longer requires it.
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.
Democrats May Regret Compromising Taxpayer Privacy To Get Trump
The release of the former president’s tax returns sets a dangerous precedent.
Judge Rules Illinois' Elimination of Cash Bail Unconstitutional
The governor and attorney general say they’ll appeal to the state Supreme Court.
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.
The Respect for Marriage Act Shows That Congress Can Still Do Its Job
Congress should not forget that they can legislate in response to Supreme Court rulings.
Illinois Voters Asked Whether To Give Government Unions Veto Power Over Laws They Don't Like
Amendment 1 would grant public workers collective bargaining power over just about anything that affects them, ignoring the will of voters and lawmakers.
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.
Brief Update on the Pacific Legal Foundation Case Against Biden's Student Loan Cancellation Plan
A federal judge denied PLF's motion to block implementation of the policy. But denial is "without prejudice," and PLF can quickly refile the case.
Originalism and the "Major Questions" Doctrine
Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.
The Good, the Bad, and the Ugly of Jarkesy v. SEC
Assessing an aggressive Fifth Circuit opinion declaring Securities & Exchange Commission proceedings unconstituional.
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.
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.
The DOJ Says a Man Whose Record Was Expunged Still Must Register As a Sex Offender, Which Is Impossible
A federal lawsuit argues that the department's regulations violate due process, the separation of powers, and the First Amendment.
Judge Neomi Rao on "The Province of the Law"
A belated 2021 lecture sponsored by the Georgetown Center for the Constitution
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."