Separation of Powers:

Court Packing?

Court Packing?

Originally published in The Daily Caller, November 7, 2013 – When it comes to court packing, Obama is no FDR – Senators Ted Cruz and Mike Lee claim that President Obama is engaged in the nefarious business of “court packing.” They object that by nominating individuals to fill the three vacant positions on the federal […]

No Role for Courts in Climate Policy

No Role for Courts in Climate Policy

Originally published in The Daily Caller, October 22, 2013 – Should states be responsible for beating back climate change? – As part of a nationwide strategy to get the state and federal courts to do what the elected representatives of the people and their executive agencies have declined to do on the subject of climate […]

Deferring to Leviathan

Deferring to Leviathan

Originally published in The Daily Caller, May 22, 2013 – What the Supreme Court’s decision in Arlington v. FCC means for America – On Monday, the Supreme Court announced its decision in the case of Arlington v. FCC. The issue, according to Justice Scalia’s opinion for a majority that included Justices Thomas, Ginsburg, Sotomayor and […]

D.C. Circuit Invalidates Recess Appointments

D.C. Circuit Invalidates Recess Appointments

The National Law Journal reports on a D.C. Circuit Court of Appeals decision invalidating President Obama’s appointments to the National Labor Relations Board and calling into question the validity of his appointment of Richard Cordray to the consumer protection agency.  Read NLJ story here.

Down With “Creative” Government Lawyers

Down With “Creative” Government Lawyers

Originally published in Defining Ideas, October 4, 2012 – It is unconstitutional to bend laws for political ends – According to the American Bar Association’s Model Code of Professional Conduct, a lawyer is responsible to “zealously assert…the client’s position under the rules of the adversary system.” Because lawyers are also “officer[s] of the legal system,” […]

Senate Republicans Join Suit Challenging Recess Appointments

Senate Republicans Join Suit Challenging Recess Appointments

This story in The Blog of the Legal Times reports that 41 Republican senators have filed an amicus brief in a challenge to President Obama’s “recess” appointments to the National Labor Relations Board.  As the story notes, House Republicans have also filed an amicus brief.

9th Circuit Smackdown

9th Circuit Smackdown

Originally published in The Daily Caller, July 23, 2012 – Every year the Ninth Circuit Court of Appeals leads the nation in having its decisions overturned by the U.S. Supreme Court. In a 2010 speech to the Harvard Federalist Society, Ninth Circuit Judge Diarmuid O’Scannlain reported that during the prior decade the Supreme Court had […]

Pelosi Urges More Executive Fiat

Pelosi Urges More Executive Fiat

This report from The Washington Times makes you wonder what House Democrats were and are thinking by having Nancy Pelosi as their leader.  What ever happened to the idea that he legislative branch would be jealous of its own powers and pergatives? House Minority Leader Nancy Pelosi, D-Calif., thinks that President Obama should unilaterally eliminate […]

In Defense of our “Imbecilic” Constitution

In Defense of our “Imbecilic” Constitution

Richard Epstein writes on The Daily Caller:  “The only way to think about governments is to first identify the set of individual rights that they are supposed to protect, after which it is possible to put in place the constitutional provisions on both individual rights and government structure that might best serve to protect those […]

Supreme Court Strikes Down Executive Overreach

Supreme Court Strikes Down Executive Overreach

Originally published in The Daily Caller — June 4, 2012 – Supreme Court right to strike down HUD rule – In late May, in the case of Freeman v. Quicken Loans, the United States Supreme Court held that the Department of Housing and Urban Development (HUD) had exceeded its authority under the Real Estate Settlement […]

Another Constitutional Problem with Obamacare?

Another Constitutional Problem with Obamacare?

Back when the Patient Protection and Affordable Care Act was under consideration in Congress, there was talk about “death panels” the law would create to decide on what procedures would be authorized and what would not.  The use of the term “death panels” was roundly condemned as a scare tactic distortion of the proposed law.  […]

Where’ the Work in Raising Five Sons?

Where’ the Work in Raising Five Sons?

So now let’s insult all the stay at home moms.  Writing in Sunday’s New York Times, Frank Bruni observes that “by the standards of Hilary Rosen, whose name and swipe at Ann Romney just possibly crossed your radar last week, my mother also never worked a day in her life, at least not after she […]

Obama vs. Supreme Court

Obama vs. Supreme Court

PRESIDENT OBAMA SETS THE STAGE FOR A POLITICAL ASSAULT ON THE SUPREME COURT – Originally published on The Daily Caller 04/03/12 – President Obama says that the Supreme Court would be taking an “unprecedented, extraordinary step” by overturning the Patient Protection and Affordable Care Act (Obamacare), since the act was passed by “a strong majority […]

Going It Alone at the White House

Going It Alone at the White House

Writing in today’s Wall Street Journal, Laura Meckler documents the ways in which the Obama Administration has expanded executive powers.

What Goes Around Comes Around

What Goes Around Comes Around

Professor and former federal judge Michael McConnell writes in today’s Wall Street Journal that Democrats should remember that President Obama’s executive overreach is precedent for overreach by Republican presidents in the future.  McConnell also confirms that the President’s “recess” appointments to the Consumer Financial Protection Bureau and the NRLB are almost certainly unconstitutional.

The need for new rules of military engagement

Republican members of Congress are pressing President Obama to comply with the War Powers Resolution by seeking Congressional approval for the military action in Libya.  The President ignores them on the implausible grounds that U.S. involvement in Libya is not hostile.  The problem, writes Charles Krauthammer in today’s Oregonian, is that we need new rules […]

Badly Written Laws Require Judicial Activism

It’s rare that New York Times Supreme Court reporter Linda Greenhouse touts an opinion by Justice Antonin Scalia.   So when she does, conservatives and liberals alike should pay attention.  Greenhouse (and Scalia) hit the nail on the head in objecting that, while Senators routinely decry judicial activism in judicial confirmation hearings, vague, sloppily written legislation […]

Fiscal Libertarianism and Divided Government

Fiscal Libertarianism and Divided Government

A few days ago, Jim Huffman argued that a “divided conservative vote is a sure prescription for a second Obama term.” From a fiscal libertarian perspective, however, it’s not clear that having a Republican in the White House is necessarily preferable to a second Obama term. The key assumption here is that Republicans will build […]

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