Philip Hamburger on "The Importance of Granting Cert in Canna Provisions v. Bondi"
Columbia Prof. Philip Hamburger urges the Supreme Court to hear this caseand take the opportunity to overturn Gonzales v. Raich.
Commerce Clause
The Supreme Court Should Hear Case Seeking to Overturn Gonzales v. Raich
Raich is one of the Court's worst federalism decisions, holding that Congress's power to regulate interstate commerce allows it to ban possession of marijuana that never crossed state lines, and was never sold in any market.
This Gun Case Harks Back to Constitutional Concerns About the Limits of Federal Power That Now Seem Quaint
Congress justified that National Firearms Act of 1934 as a revenue measure—a rationale undermined by the repeal of taxes on suppressors and short-barreled rifles.
Is the Federal Prohibition on Felon Firearm Possession Constitutional?
Judge Willett thinks that some federal statutes have been interpreted and applied in ways that conflict with the notion that the federal government only has limited and enumerated powers.
Man Accused of Soliciting Teen Girl Walks Because of Federal Overreach
The DOJ tried to claim jurisdiction because he drove on a road.
The Gun-Free School Zones Act Is Doubly Dubious
The federal law relies on a risible reading of the Commerce Clause to restrict a constitutional right.
How Protectionist Wine and Liquor Laws Violate the Constitution
The Commerce Clause protects free trade between the states.
Life as an Academic Defender of the Intuitively Obvious
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Gun Rights Groups Welcome the Demise of Illogical and Constitutionally Dubious Federal Firearm Taxes
The taxes on sound suppressors, short-barreled rifles, and short-barreled shotguns, originally enacted in 1934, were meant to be prohibitive, imposing bans in the guise of raising revenue.
First Circuit Rejects Constitutional Challenge to Federal Marijuana Prohibition
Like it or not, Gonzales v. Raich remains good law, and federal prohibition is constitutional under current doctrine.
A Federal Judge Greenlights a Lawsuit That Claims Florida's Ban on Lab-Grown Meat Is Unconstitutional
U.S. District Judge Mark Walker says Upside Foods has plausibly alleged that the law's protectionism violates the "dormant" Commerce Clause.
He Was Convicted of a Felony for Holding a Gun on the Sidewalk in Front of His House
Gabriel Metcalf argues that his prosecution under the Gun-Free School Zones Act violated his constitutional right to keep and bear arms.
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.
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."
