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.
Executive Power
Two Cheers for the "Freedom Conservatism" Statement of Principles
It has many good points. But I have some reservations and questions.
The Irony of Department of Education v. Brown—the Other Student Loan Forgiveness Case Decided by the Supreme Court Yesterday
The Court unanimously ruled the plaintiffs in that case lacked standing. But they might end up getting what they wanted more fully than anyone else involved in the legal battle over student loan forgiveness.
My CNN Article on "Why the Supreme Court Got it Right on Student Loans"
The article goes over the main reasons why the Court's decision was justified.
Biden Says He Will try to do Student Loan Forgiveness Under the Higher Education Act of 1965
The administration will try this pathway as an alternative to the HEROES Act of 2003, which pathway was shut down by today's Supreme Court decision.
Supreme Court Rules Red States Lack Standing to Challenge Biden Immigration Enforcement Guidelines
The 8-1 decision is a major win for Biden and executive enforcement discretion. I think the Court got the right result, but for the wrong reasons.
The Federal Case Against Trump Is 'Very Strong,' His Former Attorney General Says
By taking records that did not belong to him and refusing to return them, William Barr says, Trump "provoked this whole problem himself."
Against the "Banana Republic" Critique of Indicting Trump
The real banana republic danger is if high officials can commit serious crimes with impunity.
Congress Warned About Abuses of Presidential Emergency Powers
Legislators from both parties worry about unilateral power, but they use it when it’s convenient.
The Perils of 'Rule by Indefinite Emergency Edict'
Supreme Court Justice Neil Gorsuch highlights a vital lesson from the COVID-19 pandemic.
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.
Trump Hopes His Own Delusions Will Protect Him From Criminal Charges
The former president says he did not solicit election fraud; he merely tried to correct a "rigged" election. And he says he did not illegally retain government records, because they were his property.
Rochelle Walensky Leaves a CDC That's Far More Powerful Than When She Entered It
Under Walensky, the CDC's voluntary guidance was anything but.
Chevron Matters — But Not as Much as You Might Think
Overruling Chevron won't gut the administrative state or even severely constrain it. But it could help strengthen the rule of law.
A Major New Defense of the Major Questions Doctrine
Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.
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.
A Textualist Defense of the Major Questions Doctrine
Critics claim the doctrine is obviously at odds with textualism. But that isn't the case.
Today at the Supreme Court: Biden's Student Loan Cancellation Plan on Trial
The Supreme Court considers the scope of presidential power in Biden v. Nebraska and Department of Education v. Brown.
Showdown Over Student Loan Forgiveness Hits Supreme Court Tomorrow
Plus: Texas prosecutors can't criminally charge people who help others access out-of-state abortions, food trucks fight rules banning them in 96 percent of North Carolina city, and more...
Biden Promised a Return to 'Rule of Law' Governance. His Record Says Differently.
Like his predecessors, the current president ignores the law when it suits him.
Presidents' Day Is a Good Reminder To Treat the Presidency With Skepticism
While the office was created with "modest authority and limited responsibilities," the modern president has increasingly unchecked power and authority.
Supreme Court Cancels Oral Argument in Title 42 "Public Health" Expulsion Case
The move makes it more likely that Title 42 expulsions of migrants will end in the near future.
"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.
The Biden Administration Flirts With Imposing Nationwide Rent Control Via Executive Action
The White House's idea of using Freddie Mac and Fannie Mae to adopt rent control faces numerous legal and practical hurdles.
Sixth Circuit Upholds Injunction Against Biden Administration COVID-19 Vaccine Mandate for Federal Contractors
The U.S. Court of Appeals for the Sixth Circuit concludes the President exceeded the scope of his delegated authority.
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.
Podcast on United States v. Texas
In this Federalist Society podcast on a major immigration case currently before the Supreme Court, I go over the issues at stake, and make some tentative predictions about the case's likely outcome.
Supreme Court Decides to Hear Second Case Challenging Legality of Biden's Loan Forgiveness Plan
Like the first case, it will be argued in February. In the meantime, the plan remains blocked.
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.
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.
Biden Administration Asks Supreme Court to Lift Injunction Blocking their Massive Loan Forgiveness Program
The Supreme Court's resolution of this procedural issue may be a preview of the justices' views on the ultimate resolution of the student loan forgiveness litigation.
Trump Says Taking Presidential Records to Mar-a-Lago Automatically Made Them His Property
According to the former president's lawyers, his decision to retain the documents made them "personal."
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.
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.
Biden Mistakenly Imagines That Congress Approved His Student Debt Cancellation Scheme
The lack of statutory authority is the main issue raised by legal challenges to the plan.
National Constitution Center Project Offers Constitutional Amendment Proposals with Broad Cross-Ideological Support
The proposals were agreed on by members of the conservative, libertarian, and progressive teams participating in the NCC's earlier constitution drafting project.
Six States File Lawsuit Challenging Biden Student Debt Cancellation Program
The lawsuit has a more conventional - and stronger - basis for standing than that filed yesterday by the Pacific Legal Foundation.
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.
After 975 Days, Washington's Governor Will Finally Relinquish His Emergency Pandemic Powers
Gov. Jay Inslee says Washington state's COVID-19 emergency will finally come to an end on October 31.
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.
Will Biden's Student Loan Debt Cancellation Plan Hold Up in Court?
The president claims broad authority to act under a post-9/11 law.
The Student Loan Forgiveness Fiasco
Plus: Spider study sheds light on how misinformation spreads, Airbnb regulation ruled unconstitutional, and more...
D.C. Circuit Upholds the Bump Stock Ban, Saying It Is Consistent With the 'Best Interpretation' of the Law
It is hard to see how, given the contortions required to deliver the unilateral prohibition that Donald Trump demanded.
Cato Supreme Court Review Article on the Supreme Court's January 2022 Vaccine Mandate Decisions
I am one of the relatively few people who think the Court got both cases right.
The 5th Circuit Considers Whether the Trump Administration Was Legally Authorized To Ban Bump Stocks
Regulators imposed the ban based on a highly implausible and counterintuitive reading of federal law.