My Jotwell Review of David Pozen's "The Constitution of the War on Drugs"
The book is the most extensive analysis to date of constitutional issues arising from the War on Drugs, and why the constitutional law largely failed to constrain its abuses.
Commerce Clause
The Best of Reason: Congress 'Can Regulate Virtually Anything'
How legislators learned to stop worrying about the constitutionality of federal drug and gun laws by abusing the Commerce Clause.
Ruling in Favor of DIY Distillers Affirms Limits on Congressional Power
A federal judge rejected the government’s excuses for banning home production of liquor.
Congress 'Can Regulate Virtually Anything'
How legislators learned to stop worrying about the constitutionality of federal drug and gun laws by abusing the Commerce Clause
Court Holds Federal Ban on Home-Distilling Exceeds Congress' Enumerated Powers
A potentially important post-NFIB enumerated powers challenge.
Rekindle the Spirit of Independence by Legalizing Home Distilling
A modern legal battle challenges the federal ban on distilling alcohol at home—a favorite hobby of the Founding Fathers.
AI Could Become the Next Victim of the 'Sacramento Effect'
California's stringent AI regulations have the power to stifle innovation nationwide, impacting all of us.
A Collective-Action Theory of the Constitution's Federal Structure
Fourth in a series of guest-blogging posts.
Embracing a Federalist Approach to Abortion, Trump Condemns Democrats As 'Radical'
The former and would-be president is keen to avoid alienating voters who reject both kinds of extremism on the issue.
Justice O'Connor's Parting Dissents Highlighted the Twin Perils of Local Tyranny and Federal Overreach
The late Supreme Court justice eloquently defended property rights and state autonomy.
State-Licensed Pot Suppliers Say Federal Prohibition Is Unconstitutional As Applied to Them
A federal lawsuit argues that it is time to reassess the Commerce Clause rationale for banning intrastate marijuana production and distribution.
A Montana Case Tests the Constitutionality of the Gun-Free School Zones Act
The law makes it a felony to possess a firearm within 1,000 feet of a school, which covers the sidewalk in front of Gabriel Metcalf's house.
A Conservative Constitutional Argument Against a National Abortion Ban
Conservative legal scholar William Hodes argues that federal restrictions on abortion are beyond the scope of Congressional power.
Federal Court Halts Biden Administration's Clean Water Overreach
Hopefully the Supreme Court will soon put a permanent stop to the EPA's Clean Water Act land grab.
Is the "Speak Out Act" Constitutional?
What power lets Congress exempt harassment allegations from NDAs?
The original meaning of the Indian Commerce Clause
Professor Natelson versus Professor Ablavsky
No, State Legislators Can't Ban Interstate Abortion Travel
The Constitution's commerce clause guarantees a domestic free trade zone. A state law that bars a resident from traveling to take advantage of another state’s economic activity would be unconstitutional.
Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism—But it Might Fly Under Current Supreme Court Precedent
The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back.
Marco Rubio, Who Last Month Said Abortion Regulation Should Be Left to the States, Endorses a Federal Ban
The senator's avowed devotion to federalism is no match for his political ambitions.
Lindsey Graham's Abortion Ban, Which Would Override State Laws, Shows Contempt for Federalism
The Republican senator improbably claims his bill is authorized by the 14th Amendment and the Commerce Clause.
1st Circuit Says Maine's Residency Rule for Medical Marijuana Suppliers Is Unconstitutional Protectionism
Notwithstanding federal pot prohibition, the appeals court says, the requirement violated the Commerce Clause's implicit prohibition of anti-competitive interstate trade barriers.
Maximalists Threaten a Federalist Compromise on Abortion
National legislation and extraterritorial application of state laws are inconsistent with the local leeway that the Constitution protects.
Could Congress Prohibit Abortion If Roe Is Overturned? (Updated)
Questions about the scope of federal power will remain.
The Failed Senate Abortion Bill Went Far Beyond Preserving Current Rights
Without citing any constitutional authority to dictate state abortion policies, the bill would have overridden regulations that have been upheld or have yet to be tested.
Samuel Alito Thinks It's Obviously Absurd To Suggest That Drug Prohibition Violates the Constitution
The justice overlooks the long American tradition of pharmacological freedom and the dubious constitutional basis for federal bans.
Could Congress Ban Abortion Nationwide if Roe Gets Overruled?
Under current Supreme Court precedent, the answer is probably "yes." But that precedent might not hold, thanks in part to Clarence Thomas.
Supreme Court Takes Up California's Attempt To Control How Other States' Farmers Treat Pigs
Do California's rules violate the dormant commerce clause?
Defending OSHA's Vaccine Mandate, Sonia Sotomayor Says 'I'm Not Sure I Understand the Distinction' Between State and Federal Powers
The justice's reference to a national "police power" raised some eyebrows.
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."
If Roe Gets Overruled, Abortion Policy may not be "Left to the States"
Absent Roe, current Supreme Court precedent likely gives the federal government considerable power to either restrict or protect abortion rights. But that precedent could potentially be limited in ways advocated by Supreme Court Justice Clarence Thomas, an unlikely potential savior of 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."
A Federal Judge Lets a Cruise Line Require Proof of Vaccination, Saying a Florida Law Banning the Practice Is Probably Unconstitutional
Gov. Ron DeSantis' embrace of the law contradicts his avowed commitment to economic freedom.
For the Third Time, the Roberts Court Rescues Obamacare
Without a mandate penalty, the challengers had no standing.
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."
The CDC vs. the Constitution
The Founders could not have possibly imagined the Commerce Clause covering an eviction moratorium.
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.
The State of the Legal Struggle Over the CDC Eviction Moratorium
Two district court decisions have upheld the moratorium against various challenges, while one has ruled against it. The legal battle may be just beginning.
Federal Court Strikes Down CDC's Controversial Eviction Ban as Unconstitutional
A nationwide ban on evictions is well outside the congressional power to regulate interstate commerce, ruled U.S. District Judge J. Campbell Barker on Thursday.
Democratic Warnings That Confirming Amy Coney Barrett Would Doom Obamacare Are Implausible and Confused
There is little reason to think Barrett would vote to overturn the Affordable Care Act, which in any case seems legally secure.
Supreme Court Justices in Texas and Pennsylvania Emphasize That COVID-19 Lockdowns Require Judicial Scrutiny
Not everything that states do in the name of protecting public health is consistent with the Constitution.
My New USA Today Op Ed on Coronavirus and Federalism
The article explains why the coronavirus crisis does not justify weakening constitutional limits on federal government power.
Trump Can Encourage States to Lift Their COVID-19 Lockdowns, but He Can't Decree That Outcome
The president has a history of asserting powers he does not actually have.
Restrictions on Interstate (and Intrastate) Travel in an Epidemic
are generally constitutional (whether they forbid travel to a particular place, or require travelers to be temporarily quarantined).
