What the Federal Government Can do to Alleviate the Housing Crisis
Harvard economist Edward Glaeser, a leading expert on housing policy, offers some ideas on how Congress can use conditional spending to break down barriers to housing construction.
Spending Clause
A Collective-Action Theory of the Constitution's Federal Structure
Fourth in a series of guest-blogging posts.
Red States File Lawsuit Challenging New Biden Student Loan Forgiveness Plan
There are many parallels between this case and the one the Supreme Court decided in Biden v. Nebraska, invalidating Biden's previous large-scale loan forgiveness plan.
Supreme Court Rules Against Biden's Student Loan Forgiveness Plan
The Court ruled the plan is illegal, and that at least one plaintiff (the state of Missouri) has standing.
Federal Courts Clash Over Financial Watchdog's Constitutionality
The CFPB funding scheme is constitutional, the 2nd Circuit says.
Congress Should Not Give Any Government Agency Financial Free Rein
Lawmakers should proactively retake the power of the purse from the Consumer Financial Protection Bureau, regardless of how the Supreme Court rules.
"Third-Party Standing" Doctrine Shouldn't be Used to Block Lawsuits Challenging Biden's Student Loan Forgiveness Plan
Legal scholar Michael Dorf claims Supreme Court should rule on this basis. But the doctrine doesn't apply to this case, and is dubious anyway.
Eleventh Circuit Becomes Second Federal Appellate Court to Strike Down Tax Mandate Condition in 2021 Covid Stimulus Bill
Like the Sixth Circuit before it, the Eleventh ruled that the requirement that states receiving stimulus money refrain from cutting taxes was never clearly authorized by Congress.
The Annual, Depressing 'Do Your Job Week' in Congress
Plus: The editors extend the discussion on the lack of immigration reform in this week’s bill.
Loan Forgiveness Litigation Roundup
This post covers significant developments in cases challenging Biden's loan-forgiveness plan other than the one Supreme Court has decided to hear.
Sixth Circuit Concludes ARPA Condition on COVID Relief Violates Spending Clause
The U.S. Court of Appeals for the Sixth Circuit concluded some state challenges to the COVID relief bill were not justiciable, but reaches the merits in one case and finds the law lacking.
8th Circuit Rules States Have Standing to Challenge Biden's Loan Forgiveness Plan [Updated]
The decision overrules a trial court ruling and likely paves the way for a decision on the merits striking down the program.
Does Anyone Have Standing to Bring a Lawsuit Against Biden's Student Loan Debt Cancellation Policy?
The likely answer is "yes." There are three types of potential litigants who probably qualify.
Assessing an Alternative Legal Justification for Biden's Student Loan Debt Cancellation Policy
Relying on Section 432(a) of the Higher Education Act of 1965, as some propose, has many of the same flaws as the Administration's emergency powers theory.
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.
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!
Rights and Wrongs of Biden's New Vaccination Mandate Policies
Some parts are both good policy and legally unproblematic. Others - particularly the mandate imposed on private employers - are legally dubious and would set a dangerous precedent if upheld by courts.
Federal Court Strikes Down Tax Mandate Requirement in Biden Stimulus Spending Bill
The mandate prevents bars states receiving federal funds under the Act from enacting tax cuts that are "directly or indirectly" offset by the grants.
Federal Court Enjoins Enforcement of "Tax Mandate" Barring States Receiving COVID-19 Funds from Cutting Taxes (Updated)
In a careful ruling, Judge Cole concludes Ohio made its case, and enjoins enforcement of the mandate against Ohio.
Democrats Are Considering a $6 Trillion Infrastructure Plan That Has Little to Do With Infrastructure
For many elected Democrats, infrastructure is much more than roads, bridges, dams, and waterways.
New Developments in Ohio's Challenge to the Stimulus Bill Provision Restricting Tax Cuts by States Receiving Federal Grants under the Act
A federal court issues a ruling against the requirement that states receiving stimulus funds are not allowed to raise taxes. Meanwhile, the Treasury Department issues an "interim final rule" intended to limit the scope of the mandate - and protect it against legal challenge.
Biden Stimulus Bill Provision Targeting State Tax Cuts Might be Struck Down by Courts for Same Reasons as Trump Efforts to Pull Federal Grants From Sanctuary Cities
In both situations, the grant conditions in question were not clearly and unambiguously authorized by Congress.
Ninth Circuit Rules Against Trump's Diversion of Military Construction Funds to Build his Border Wall
The divided 2-1 decision is the first court of appeals ruling to rule on the legality of a key part of the funding diversion effort.
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.
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 Threat to Withhold Federal Funds from States that Expand Voting By Mail Highlights Growing Menace to Federalism and Separation of Powers
A president who can attach his own new conditions to federal grants to states could use that power to undermine state autonomy on many issues - especially now that federal spending has been massively expanded during the coronavirus crisis.
Impeachment and the Spending Power Revisited
In assessing impeachment, we should keep in mind Trump's usurpation of Congress' power over federal spending. This is a serious violation of the Constitution, and focusing on it overcomes some standard objections to impeachment.
Podcast on Federalism and Sanctuary Cities
Prof. Brian Frye of the University of Kentucky Law School interviewed me on this subject, as part of his series of "Ipse Dixit" podcasts.
Evidence Increasingly Indicates Trump's Ukraine Pressure Tactics Usurped Congress' Power of the Purse—and that he may have Committed a Federal Crime in the Process
If Trump used withholding of aid as leverage to pressure Ukraine into investigating Joe Biden, he both violated the Constitution and committed a federal crime. The evidence released so far strongly points in that direction, even if it is not completely definitive.
More on Liberals and Federalism
In this follow-up to my Washington Post article on the same subject, I consider whether current liberal support for federalism is purely opportunistic, and whether the political left is inherently pro-centralization.
Trump Administration Finally Wins a Sanctuary City Grant Condition Case
The ruling comes after a long string of losses blocking other administration efforts to deny federal law enforcement funds to sanctuary jurisdictions. The different result in this case is largely a product of the unusual nature of the program involved.
'Making Federalism Great Again'—My Forthcoming Texas Law Review Article on the Litigation Generated by Trump's Assault on Sanctuary Cities
My newly posted article explains how the administration's efforts have had the unintended effect of strengthening judicial protection for state autonomy.
Trump Administration Loses Yet Another Sanctuary City Case—this Time in the US Court of Appeals for the Third Circuit
In a case brought by the City of Philadelphia, the court struck down a Justice Department policy conditioning federal law enforcement grants on assisting federal immigration enforcement policy.
Trump and Jeff Sessions Suffer Yet Another Defeat in Chicago Sanctuary City Case
The ruling is notable in underscoring how the Supreme Court's sports-betting decision in Murphy v. NCAA helps sanctuary cities.
Trump Suffers Another Defeat in Philadelphia Sanctuary City Case
The ruling is the latest in long line of defeats for the administration's efforts to cut federal grants to sanctuary jurisdictions. It breaks new ground by showing how the recent Supreme Court ruling in Murphy v. NCAA helps sanctuary cities.
Trump Suffers Yet Another Defeat in a Sanctuary Cities Case
The US Court of Appeals for the 7th Circuit affirms a district court ruling against the administration's efforts to deny federal grants to sanctuary jurisdictions.
