Video of Cato Institute Virtual Event on "Tariffs, Emergencies, and Presidential Power"
I spoke along with my Cato colleague Walter Olson.
Nondelegation
Thoughts on the Oral Argument in the Oregon Case Against Trump's IEEPA Tariffs
Like that in the similar case filed by Liberty Justice Center and myself, this one indicated judicial skepticism of Trump's claims to virtually unlimited power to impose tariffs.
Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies
This is a key issue in cases seeking to limit executive branch power grabs, including Trump's tariffs. Judge Ryan Nelson (a conservative Trump appointee) explains why the president is not exempt from the doctrine.
Washington Outsider Report Podcast Interview on the Trump Tariff Litigation
I was interviewed by attorney/podcaster Irina Tsukerman.
Trump's Tariffs Usurp the Legislature's Tax Power
The president’s sweeping import levies have no basis in the statute he cites.
KQED Interview on Legal Challenges to Trump's Immigration and Tariff Policies
We also covered the issue of the administration's failure to properly obey court orders and the looming threat of a "constitutional crisis."
Twelve States File Lawsuit Challenging Trump's IEEPA Tariffs
The suit resembles previous ones on the same subject filed by the state of California, and by the Liberty Justice Center and myself.
Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief Supporting Our Case Challenging Trump's "Liberation Day" Tariffs
Signers include Steve Calabresi, Harold Koh, Richard Epstein, Michael McConnell, Alan Sykes, former Attorney General Michael Mukasey, and others.
Motion for Preliminary Injunction, Temporary Restraining Order, and Summary Judgement in Our Case Against Trump's "Liberation Day" Tariffs
The motion was filed today, and sets out our case in detail.
My New Lawfare Article on "The Constitutional Case Against Trump's Trade War"
It explains why the IEEPA "Liberation Day" tariffs are illegal and how our case against them relates to the other three cases challenging Trup's tariffs.
Bloomberg and Forbes Podcast Interviews About our Lawsuit Challenging Trump's "Liberation Day" Tariffs
The Liberty Justice Center and I filed the case on Monday.
Cato Institute Podcast on Our Lawsuit Challenging Trump's "Liberation Day" Tariffs
I was interviewed by Caleb Brown of Cato.
California Files Lawsuit Against Trump's Tariffs
They challenge both the "Liberation Day" IEEPA tariffs, and earlier ones imposed on Canada, Mexico and China.
Liberty Justice Center and I File Lawsuit Challenging Trump's "Liberation Day" Tariffs
It was filed today in the US Court of International Trade.
The Tariff Madness Isn't Over
Even after Trump paused some of his new tariffs for 90 days, we still have the highest average tariffs in over a century and the biggest trade war since the Great Depression. Real relief will only come if Congress or the courts deny Trump the power to do this.
President Trump's New Tariffs Are Unconstitutional
They violate the major questions doctrine set forth by the Roberts Court and must be stopped by a nationwide injunction.
NCLA Files Lawsuit Challenging Trump's IEEPA Tariffs Against China
The lawsuit raises nondelegation and major questions doctrine arguments.
Why Trump's "Liberation Day" Tariffs are Illegal
They weren't authorized by Congress and go against the major questions and nondelegation doctrines.
Looking for Plaintiffs to Challenge Trump's IEEPA Tariffs in Court
The Liberty Justice Center and I are looking for appropriate plaintiffs to bring this type of case. LJC (a prominent public interest law firm) can represent them pro bono.
Challenging Trump's Tariffs Under the Major Question Doctrine
Georgetown law Prof. Jennifer Hillman explains why Trump's tariffs are vulnerable to challenge on this basis.
Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines
Recent Supreme Court precedent suggests such challenges might prevail, though success is not guaranteed.
Supreme Court Denies Certiorari for Braidwood Nondelegation Claim
The Court will only consider one of the issues in Braidwood Management v. Becerra
Supreme Court Grants Certiorari in Becerra v. Braidwood Management
Another significant administrative law grant of certiorari (and a dog that didn't bark).
DC Circuit Finds Some FINRA Authority Violates Private Nondelegation Doctrine
The private nondelegation doctrine is getting an increasing amount of attention from the courts.
Supreme Court Grants Certiorari in Nondelegation Case
A challenge to the FCC's Universal Service Fee could produce a major administrative law decision.
Perils of Broad Presidential Power Over Tariffs
Donald Trump's plan for massive tariff increases is particularly dangerous because the White House could likely implement it without any new congressional authorization.
En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is Unconstitutional
A majority of the judges concludes this fee constitutes a tax, the authority for which is improperly delegated.
Is the Federal Property and Administrative Services Act Unconstitutional?
In an interesting dissent, Judge Allison Eid argues it violates existing nondelegation doctrine precedent.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Of Babysitters and Major Questions
Survey data casts doubt on the textualist rationale for the major questions doctrine that I and others have advanced. But perhaps not as much doubt as it might seem.
Justice Barrett's Textualist Defense of the Major Questions Doctrine
In today's student loan decision, Justice Barrett offers a textualist rationale for this controversial rule. I have made similar arguments myself.
Federal Court Strikes Down Obamacare Preventive Care Insurance Mandates
The ruling is based on separation of powers and Religious Freedom Restoration Act grounds.
A Major New Defense of the Major Questions Doctrine
Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.
A Textualist Defense of the Major Questions Doctrine
Critics claim the doctrine is obviously at odds with textualism. But that isn't the case.
A Federal Judge Says the DOJ's Sex Offender Registration Rules Violate Due Process by Requiring the Impossible
Justice Department regulations threaten people with prosecution for failing to register even when their state no longer requires it.
The Horseracing Case, Part 3: How Carter Coal Is Misunderstood
Despite a recent Fifth Circuit case, Carter v. Carter Coal Co. (1936) doesn't limit private delegations.
The Horseracing Case, Part 2: Private Delegation Before and After Schechter Poultry
The Supreme Court has never held that private delegations have any special unfavorable treatment under the Article I Nondelegation Doctrine: quite the opposite!
The Horseracing Case and How It Misunderstands Private Delegation
Despite a recent Fifth Circuit case, there is no private nondelegation doctrine.
Fifth Circuit: Horseracing Integrity and Safety Act Unconstitutionally Delegates Power to a Private Entity
A rare, successful nondelegation challenge in the U.S. Court of Appeals for the Fifth Circuit.
Yale Journal on Regulation Symposium on Peter Shane's "Democracy's Chief Executive"
Participants include Daniel Farber, Keith Whittington, Cristina Rodriguez, Lisa Heinzerling, and myself, among others.
The First Significant Lawsuit Challenging Biden's Student Loan Forgiveness Plan [Updated]
It was filed by Pacific Legal Foundation public interest lawyer Frank Garrison, and includes a novel strategy for getting around the problem of standing.
Originalism and the "Major Questions" Doctrine
Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.
The Good, the Bad, and the Ugly of Jarkesy v. SEC
Assessing an aggressive Fifth Circuit opinion declaring Securities & Exchange Commission proceedings unconstituional.
WV v. EPA: Some Answers about Major Questions (But Not All the Answers We Need)
My forthcoming article the good, the bad, and the likely implications of the Supreme Court's decision West Virginia v. EPA
Supreme Court Ruling in "Remain in Mexico" Case is a Win for Biden, Migrants - and Fans of Presidential Power
The ruling likely allows end of a cruel policy - but also reinforces broad presidential control over immigration.
The DOJ Says a Man Whose Record Was Expunged Still Must Register As a Sex Offender, Which Is Impossible
A federal lawsuit argues that the department's regulations violate due process, the separation of powers, and the First Amendment.
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.
