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.
Separation of Powers
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.
Supreme Court Decides to Take a Border Wall Case
The implications of this move are as yet unclear.
An Overdue Rebuke to Politicians Who Think Anything Goes in a Pandemic
Two courts say COVID-19 lockdowns in Michigan and Pennsylvania were unconstitutional.
DC Circuit Rules House of Representatives has Standing to Challenge Trump's Diversion of Funds to Build his Border Wall
The opinion was written by prominent conservative Judge David Sentelle.
Biden and Trump Now Agree: The President Has No Authority To Impose a Nationwide Mask Mandate
If only that signaled a broader respect for legal limits on executive power.
Thoughts on Trump's Potential Plan to Cut Federal Grants to "Anarchist Jurisdictions"
For the moment, the executive "memorandum" is long on rhetoric, but short on actual action. If it ever does lead to action, it could be yet another attack on federalism and separation of powers.
Trump's Eviction Moratorium Could set a Dangerous Precedent [Updated]
It's a power grab that could undermine federalism and separation of powers, and imperil property rights.
May Legislature Restrict State Constitutional Right to Keep and Bear Arms in the Legislative Building?
A court should decide that question by interpreting the state Bill of Rights, the New Hampshire Supreme Court says; it shouldn't conclude that this is a "political question" to be decided purely by the Legislature and the people.
Rejecting Biden's Threat of a Nationwide Mask Mandate, Trump Suddenly Respects Limits on Presidential Power
Both major parties defend the Constitution only when it's convenient.
En Banc D.C. Circuit Concludes House Has Standing to Enforce Subpoena in Court (Updated)
At the same time, the court punts on whether the House has standing to challenge allegedly unlawful expenditure by Executive Branch.
Trump's Naked Megalomania Continues a Bipartisan Trend
Will his blunt self-aggrandizement reinvigorate concerns about presidents who exceed their powers?
The D.C. Circuit Will Rehear the Flynn Case En Banc
Look for the full appellate court to send the case back to the trial court - which is where it belongs.
Department of Homeland Security
The Headless Department of Homeland Security
The lack of Senate-confirmed officers at DHS is a serious problem.
"A Better Way to Limit Congress' Subpoena Power"—My SCOTUSblog Symposium Article on Trump v. Mazars
The article critiques the majority decision, and outlines a better way to limit Congress' subpoena power.
Preliminary Thoughts on the Mazars and Vance Cases [Updated with Link to my SCOTUSblog Article on Mazars]
Vance strikes me as compelling and correct. Mazars creates a complex and unwieldy balancing test.
Judge Luttig on How the D.C. Circuit Bungled the Flynn Case
Former federal judge Michael Luttig thinks that the D.C. Circuit did not really understand what was at stake.
Supreme Court Rules Against Consumer Financial Protection Bureau, Says Agency's Format 'Clashes With Constitutional Structure'
SCOTUS rules 5–4 in Seila Law v. Consumer Financial Protection Bureau.
Crime Victims Rights Amendment
The D.C. Circuit's Dubious Decision Ordering the Flynn Case Dismissed
A 2-1 ruling concludes that the district court cannot even hold a hearing on the subject.
Another Judge Rules That Ohio's COVID-19 Lockdown Is Illegal
The decision says the "unbridled and unfettered consolidation of authority in one unelected official" violates due process and the separation of powers.
Ohio Judge Deems the State's COVID-19 Lockdown 'Arbitrary, Unreasonable, and Oppressive'
The ruling says the state's top health official exceeded her statutory authority by ordering "nonessential" businesses to close.
A Pandemic Does Not Suspend the Rule of Law
Courts are beginning to recognize that public health powers, while broad, are not a blank check.
Wisconsin Supreme Court Says the State's COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers
A seemingly arcane dispute about administrative law has profound implications for the limits of public health authority.
The Limiting Principle for Congress' Power to Subpoena Presidential Records Isn't Hard to Find [Updated With Response to Josh Blackman]
Why the Supreme Court can rule in favor of Congress in the Trump financial records cases without thereby giving Congress any unlimited power.
Kansas Supreme Court Invalidates Legislature's Scheme for Supervising Governor's Executive Powers
The scheme, created by a concurrent resolution, is inconsistent with the Kansas Emergency Management Act. A legislative council's decision to overrule the Governor's church shutdown order has thus been invalidated, and the church shutdown is back in effect.
Huge Legislature-Governor Conflict in Kansas, Over Emergency Powers (Stemming from Religious Freedom Dispute)
A "drafting snafu" with the Legislature's concurring resolution, which endorsed the Governor's initial emergency order, is casting many things in doubt.
The Constitutionality of Territorial Courts
Adjudication Outside Article III (part two)
Chuck Schumer's Trumpian Attack on the Supreme Court Threatens the Judicial Independence That Democrats Claim To Defend
The Senate minority leader threatened two justices by name, and then he lied about it.
If Bloomberg's Arrogance Worries You, His Weaselly Positions on Presidential Power Won't Reassure You
The presidential candidate reserves the right to wage unauthorized wars, kill Americans in foreign countries, prosecute journalists, and selectively flout the law.
A Nondelegation Challenge to Trump's Travel Bans [updated to include some additional material]
Other possible legal challenges to Trump's expanded travel ban may be precluded by the Supreme Court's ruling in Trump v. Hawaii. This one is not.
Republican Senators Say the Truth Is Irrelevant in Evaluating the Gravity of Trump's Misconduct
Republicans are setting a dangerous precedent they may come to regret the next time a Democrat occupies the White House.
