Separation of Powers
SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats
Several justices seemed troubled by an ATF rule that purports to ban bump stocks by reinterpreting the federal definition of machine guns.
4 Reasons Trump Says a Judge Should Dismiss Charges in the Classified Documents Case
His lawyers assert presidential immunity and discretion, criticize an "unconstitutionally vague" statute, and question the special counsel's legal status.
Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity
The case raises an issue of high importance and the opinion may contain some loose reasoning.
The D.C. Circuit Unanimously Rejects Trump's Audacious Presidential Immunity Claim
The appeals court says it "cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter."
Biden Reportedly Is Planning To Unilaterally Mandate Background Checks for All Gun Sales
A watchdog group cites ATF "whistleblowers" who describe a proposed policy that would be plainly inconsistent with federal law.
12 Senators Urge the DEA To Legalize Marijuana, Which Only Congress Can Do
Under the Controlled Substances Act, the agency does not have the discretion to "deschedule marijuana altogether."
SCOTUS Ponders the Ambiguity of 'Ambiguous' and Other Chevron Doctrine Puzzles
The justices seem inclined to revise or ditch a 1984 precedent that requires deference to executive agencies' statutory interpretations.
The Chevron Doctrine Discomfits the Weak
Excessive judicial deference gives administrative agencies a license to rewrite the law in their favor.
Does Biden Need Congressional Authorization for His Strikes Against the Houthis? [Updated]
The answer is likely "no" for US military action so far, because it is a defense against attack. But a broader conflict or one of much longer duration would be different.
D.C. Circuit Seems Skeptical of Trump's Alarmingly Broad Presidential Immunity Claim
As one appeals court judge pointed out, Trump's defense could literally let a president get away with murder.
The D.C. Circuit Mulls Trump's Alarmingly Broad Claim of Presidential Immunity From Prosecution
His lawyers say no jury can ever consider charges based on his "official acts" as president, which include his efforts to reverse Joe Biden's election.
5th Circuit Reluctantly Rules Against Victim of a Prosecutor Who Was Also a Law Clerk
Ralph Petty's "conflicted dual-hat arrangement" as an advocate and an adjudicator was "utterly bonkers," Judge Don Willett notes.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Arizona Restaurant Owner Sues Over Costly Cage-Free Egg Mandate
The Arizona Department of Agriculture says all eggs sold must be cage-free, a power that according to the lawsuit belongs to the state legislature.
The Supreme Court Should Not Let Bureaucrats Invent Crimes by Rewriting the Law
The Trump administration’s unilateral ban on bump stocks turned owners of those rifle accessories into felons.
A Blatantly Unconstitutional Gun Edict Highlights the Hazards of Emergency Powers
New Mexico Gov. Michelle Lujan Grisham thinks violent crime gives her a license to rule by decree.
How Hunter Biden's Plea Deal Fell Apart
A federal judge objected to two aspects of the agreement that seemed designed to shield Biden from the possibility that his father will lose reelection next year.
Why Israelis Are Taking to the Streets
The furious response to a seemingly modest reform reflects a broader dispute about the role of courts in a democracy.
A 2007 Debate Provoked by Richard Posner Illuminates the Current Clash Over Judicial Power in Israel
The appeals court judge argued that the Israeli Supreme Court had usurped the role of legislators.
The Perils of 'Rule by Indefinite Emergency Edict'
Supreme Court Justice Neil Gorsuch highlights a vital lesson from the COVID-19 pandemic.
Neither the Constitution Nor Common Sense Supports the Argument the Debt Ceiling Is Unconstitutional
Professor Prakash dispatches the arguments for unilateral Presidential authority to disregard the debt ceiling.
Trump's Disregard for the Rule of Law Is at Least As Bad As Biden's
The former president reminds us that claiming unbridled executive power is a bipartisan tendency.
Fifth Circuit Issues Administrative Stay Blocking District Court Decision Striking Down Obamacare Preventive Care Insurance Mandates
The stay is only temporary, and could be quickly lifted. But it's still a negative sign for the plaintiffs in the case.
Pacific Legal Foundation Call for Papers on Agency Adjudication
The papers are for an upcoming conference on the topic of whether federal agency adjudication of private rights should be curbed or ended. There is a $2500 honorarium for authors of selected papers.
Supreme Court to Consider Whether Members of Congress Have Article III Standing to Sue Federal Agencies
The Supreme Court has accepted certiorari in Carnahan v. Maloney to consider whether members of Congress can sue to force disclosure of information from the General Services Administration.
The Eternal Recurrence of Debt Ceiling Debates
The current debate is a replay of debates we have had before (and will likely have again).
Will Separation of Powers Doom Biden's Student Debt Plan?
Biden v. Nebraska has far-reaching implications for presidential power.
Federal Court Strikes Down Obamacare Preventive Care Insurance Mandates
The ruling is based on separation of powers and Religious Freedom Restoration Act grounds.
The Israeli Fight Over Judicial Review Highlights the Dangers of Unconstrained Democracy
Opponents of the proposed reforms are right that unlimited majority rule is a recipe for tyranny.
A Major New Defense of the Major Questions Doctrine
Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.
In the Israeli Battle Over Judicial Review, Democracy Is the Problem, Not the Solution
Opponents of the reforms favored by Prime Minister Benjamin Netanyahu's coalition should acknowledge the threat posed by unconstrained majority rule.
Biden's Plan To Unilaterally Expand Background Checks for Gun Buyers Is Legally and Logically Dubious
The president wants to redefine federally licensed gun dealers in service of an ineffective anti-crime strategy.
Biden's Attack on 'Ghost Guns' Fits a Pattern of Lawless Firearm Regulation
The president and his predecessor both tried to impose gun control by executive fiat.
Can the Vice President Invoke the Speech or Debate Clause Privilege at All? [Updated]
Professor Michael McConnell writes to suggest that even if Vice President Pence was performing legislative functions on January 6, the Constitution's text does not extend the privilege to him.
Probing the Limits of Speech or Debate Clause Privilege for Perry and Pence
The January 6 invistigations have renewed interest in this somewhat obscure constitutional provision and the scope of its protections.
A Texas-Backed Lawsuit Argues That the ATF's Pistol Brace Rule Is Arbitrary and Unconstitutional
Although the law did not change, regulators suddenly decided to criminalize unregistered possession of braced pistols.
Florida Legislature May Impose Penalties on Local Legislators Who Illegally Impose Gun Control Laws
So the Florida Supreme Court held today.
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 5th Circuit Says the ATF Exceeded Its Legal Authority When It Banned Bump Stocks
The decision defends the separation of powers and the rule of law against an attempt to prohibit firearm accessories by administrative fiat.
Democrats May Regret Compromising Taxpayer Privacy To Get Trump
The release of the former president’s tax returns sets a dangerous precedent.
Judge Rules Illinois' Elimination of Cash Bail Unconstitutional
The governor and attorney general say they’ll appeal to the state Supreme Court.
Supreme Court Will Hear Case on Legality of Biden Loan Forgiveness Plan
In the meantime, the justices left in place a lower court injunction against the plan. That probably doesn't bode well for the Biden Administration's chances of winning.
The Respect for Marriage Act Shows That Congress Can Still Do Its Job
Congress should not forget that they can legislate in response to Supreme Court rulings.
Illinois Voters Asked Whether To Give Government Unions Veto Power Over Laws They Don't Like
Amendment 1 would grant public workers collective bargaining power over just about anything that affects them, ignoring the will of voters and lawmakers.