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.
The decision against the rule hinged on whether the agency had the power it asserted.
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.
Although a Texas Supreme Court ruling ended the main challenge to the law, other cases could ultimately block its enforcement.
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."
Most of the justices appear to be skeptical of the argument that the agency has the power it is asserting.
The argument hinges largely on what makes an emergency standard "necessary."
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."
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."
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 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.
This outcome was widely expected by legal commentators.
Interviewer Joe Selvaggi and I explore the constitutional and policy issues at stake.
Professor Matthew Steilen points to an interesting letter to St. George Tucker
The administration issued the order even while conceding that it lacked the authority to do so.
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.
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.
The agency’s legal defense of its eviction moratorium implies that it has vast powers to order Americans around.
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.
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.
A panel from the 2021 Federalist Society Ohio Lawyers Chapters Conference
The Consumer Financial Protection Bureau claims to be enforcing a law that prohibits "false or misleading representations."
A federal appeals court rejects a highly implausible redefinition of machine guns.
The national eviction moratorium and Arizona’s business restrictions were based on dubious assertions of authority.
Partisans who abandon constitutional principles because they prove inconvenient are in for a rude surprise when the other team wins.
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.
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.
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.
When must claimants raise appointments-clause challenges?
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.