Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the President of the Harlan Institute. Follow him @JoshMBlackman.
Josh Blackman
Latest from Josh Blackman
An NFIB Counterfactual: What if the Obamacare Individual Mandate Were Enforced By Employers?
We cannot simply presume that Congress can indirectly regulate private conduct through the direct regulation of workplace safety.
Get Ready For The OSHA Vaccine Mandate Circuit Court Lottery!
No, Chief Justice Roberts does not draw a number from a hat.
9/11/2001 in Staten Island, New York
My annual remembrance of September 11, 2011
Whole Woman's Health v. Jackson Casts Further Doubt on United States v. Texas
There are several elements of the panel's decision that cast doubt on DOJ's case.
The Political and Legal Stars Are Aligned For Challenges to the OSHA Vaccine Mandate
It feels like 2010, all over again.
The CMS Vaccine Mandate As Applied To State Employers
The new executive action will also implicate the spending power, and federalism.
Five Tentative Thoughts About The OSHA Employer Vaccine Mandate
There will be lots of litigation, and some judge, somewhere, will find the mandate unlawful.
Justice Breyer Continues To Confound About His Retirement
He implores Nina Totenberg, "I would like this interview to be about my book."
Ten Problems with United States v. Texas
This case really should be captioned United States v. United States.
The United States sues Texas Over S.B. 8
"The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8."
The Institute for Free Speech's First Amendment Fellowship
Summer fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.
WSJ: DOJ Will Sue Texas, As Soon As Thursday
It still isn't clear who DOJ would sue. Even if sovereign immunity is waived, there is no statewide injunction available.
SCOTUS Moves Capital Case From Shadow Docket to Rocket Docket
Instead of issuing summary order, Court grants cert, and orders oral argument in Ramirez v. Collier for "October or November 2021."
SCOTUS Will Hold In-Person Arguments, But Will Not Be Open to the Public
The Court will also provide a live audio feed from the Court.
From Rosh Hashanah 5781 to Rosh Hashanah 5782
One year since Justice Ginsburg's passing on the Jewish calendar.
Why Did Texas Enact S.B. 8?
Carter Snead: "Texas responded to this futile cycle by adopting a strategy developed by progressives to root out fraud against the government": citizen suits.
Who will be the Estelle Griswold of Texas?
At some point, some abortion provider will try to set up a test case to challenge S.B. 8.
Four Things Opponents of S.B. 8 Should Not Say
If you want to win before a conservative Supreme Court, you must learn to use the lingo of conservative Justices.
New Op-Ed in Newsweek: The Supreme Court Could Not "Block" Texas's Fetal Heartbeat Law
President Biden is wrong: The Supreme Court lacks the “supreme authority to ensure justice could be fairly sought.”
President Biden Threatens To Sue Over S.B. 8
But who would the United States sue?
ACLU Endorses Vaccine Mandates Without Religious Exemptions
The ACLU endorses a dictum from Prince v. Massachusetts (1944) that predated modern Free Exercise Clause jurisprudence.
SCOTUS Splits 5-4 on Whole Woman's Health v. Jackson
Chief Justice Roberts dissented, and would have "preclude[d] enforcement of S. B. 8 by the respondents." But it isn't clear how the named respondents could enforce the law.
CNN's Joan Biskupic on Justices Leaking Information To Her: "Don't I wish."
I hope the Justices, and their clerks, exercise even greater discipline to avoid further leaks.
Harvard JLPP Hosts Online Symposium on Justice Thomas's 30th Anniversary on the Supreme Court
Contributions from Katsas, Maggs, Stras, Ho, Hardy, Ryan, Rao, and Garnett
Will Chief Justice Burger's Official Biography Ever Arrive?
Twenty-five years ago, the official biographer was paid $600,000. Timothy Flanigan is in no hurry.
New Article on California v. Texas - Unreviewable: The Final Installment of the "Epic" Obamacare Trilogy
This article for the Cato Supreme Court Review—my fourth—considers the legal arguments that California v. Texas declined to reach.
Justice Breyer Approaches His Retirement Like He Approaches His Judicial Decisions: With An Indeterminate, Multi-Factor Balancing Test
"There are a lot of blurred things there, and there are many considerations. They form a whole. I’ll make a decision."
Seven Levels of Fallout from the Eviction Moratorium Case
This shadow docket ruling, combined with Biden v. DHS, may be the most significant administrative law rulings of the Term.
Immigrants Remain in Mexico, But Tenants Vacate Their Apartments
The Biden Administration went 0-2 in 48 hours at the Supreme Court.
