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Madness and Recovery: Dr. Skoly in Court
Proving the truth about going “mad,” Rhode Island, in response to the COVID-19 Delta variant, enacted an excessively broad vaccine mandate for health care workers. As should have been foreseen, but was not (as is typical of political actions taken in fear and haste), the mandate has harmed the public: The termination of workers unwilling to be vaccinated has created staffing shortages so critical that Rhode Island has been forced to allow COVID infected workers to treat vulnerable patients.
Acquitted Conduct and Sentencing Enhancements: Is a Change in Supreme Court Precedent Near?
It seems logical that a person acquitted of a crime cannot, and should not, serve time for that crime, but on the federal level, and in many states, that is not always the case. In criminal cases, an acquittal means that the government has failed to prove an...
First Amendment Claimants Deserve Their Day in Court
McCain-Feingold, the campaign-finance legislation adopted by Congress in 2002, includes several provisions (known collectively as “the Millionaires’ Amendment”) designed to protect incumbent members of Congress facing very wealthy challengers. Among the provisions is one that limits a campaign committee’s right to use funds raised after the election to repay large loans (in excess of $250,000) made to the committee by the candidate himself.
Federal Contractors Are Not Federal Vaccine Mandate Enforcers
“When all you have is a hammer every problem looks like a nail” as the old saying goes. For the Federal Government, there appears to be no statute the Office of Legal Counsel can find that does not allow it to hammer a vaccine mandate on the populace upon...
Of Walpoles in Buicks: Do Courts Owe a Reciprocal Duty of Candor?
“Every case lays down a rule, the rule of the case…But a later court can reexamine the case…In the extreme form this results in what is known as expressly ‘confining the case to its particular facts.’ This rule holds only of redhead walpoles in pale magenta...
NLRB’s Prosecution of a Twitter Jokes Has Left the Third Circuit Considering Whether to Check the Agency’s Expansion of Its Enforcement Authority
When Vox Media employees walked out during a bargaining dispute in 2019, Twitter users tweeted along. Among the commentators was Ben Domenech, the publisher of the web magazine The Federalist. He tweeted from his personal account, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” A senior contributor at The Federalist tweeted in reply that workers “demand to be paid in Ben-mixed cocktails.”
What Do Amtrak and Stock Exchanges Have in Common under the Constitution?
NCLA’s latest “Lunch and Law” discussed its challenge in the Fifth Circuit against an Order issued by the Security and Exchange Commission (SEC) approving Nasdaq’s Board Diversity Rule, which requires Nasdaq-listed companies to satisfy gender, race, and LGBTQ+...
Mandated Covid Vaccination for Kids Is Illegal, Here’s Why
The prospect of COVID-19 vaccine requirements for 5 to 11 year olds has become the latest frontier in the vaccine mandate debate, particularly since FDA gave the Pfizer-BioNTech Emergency Use Authorization (EUA) for young children this age at the end of...
A Return to Subregulatory Enforcement: Can Jury Instructions Cure the Malaise?
During his first days and months in office, President Biden revoked a series of Executive Orders aimed at curbing abusive administrative enforcement actions and reliance on guidance documents. The revoked EOs, and agency regulations implementing them, provided much-needed protections for regulated parties and entities who were the targets of agency enforcement actions.
Courts Should Enforce the Rights of Veterans
Throughout the past 80 years, Congress has passed a series of statutes designed to ensure that military veterans are well cared for. In recognition of Congress’s intent to help veterans, the courts have developed a well-established rule of statutory construction known as the “pro-veteran canon”: when the meaning of a statute is obscure, any ambiguity in the law is to be resolved in the veteran’s favor.
To Mandate or Not to Mandate: History Will Not Judge Us Kindly
MSU’s stated goal for adopting its vaccine mandate is to keep people safe from COVID-19. The focus, therefore, should be on immunity, not on the idea of vaccinating for the sake of vaccinating. If the intent is to minimize the incidence and severity of a particular disease, the government should concentrate on outcome, not conformance.
Mutually Assured Liberty: Generational Reciprocity and the Constitution
In my July 9, 2021 blog post, I examined the nexus between the Declaration of Independence, which pronounced the liberty-to-all principle that chartered the American nation, and the Constitution, which is the vehicle through which the Framers chose to achieve...
Back to the Future: Justice Jackson’s Prescient Dissent in Chenery II
I give up. Now I realize fully what Mark Twain meant when he said, “The more you explain it, the more I don’t understand it.” Justice Robert H. Jackson, dissenting in Chenery Corp. v. SEC, 332 U.S. 194, 214 (1947) Justice Robert H. Jackson has long been...
Let’s Not Celebrate Constitution Day
I was not born an American citizen. I chose to be one. I grew up elsewhere. Few Americans realize how intrigued the rest of the world is with America’s Independence Day and Constitution Day. Few understand the significance of the two documents the two days celebrate—if they’ve read them at all. Fewer still grasp why these two documents are worthy of celebration. But all perceive there is something qualitatively unique about these documents and, therefore, the days that honor these documents.
When Government Gags, Public Loses
Freedom of speech remains a core tenet of democratic societies and free peoples. Speaking up and speaking out are always to be heralded, especially during contentious times in America. But while the freedom to speak is oft rejoiced, few realize that the interests protected by the First Amendment include the freedom to listen. When voices are silenced through suppression, intimidation, or violence, not only does the speaker lose a fundamental liberty, but so too does the listener.
Supreme Court Hints Eviction Moratorium Was Compensable Takings
Last week, the Supreme Court released an eight-page per curiam opinion holding that the Centers for Disease Control and Prevention (CDC) lacked statutory authority to impose and repeatedly extend an eviction moratorium that covered most of the country. The Court reasoned that the public-health statute upon which CDC relied—which referenced measures such as “fumigation” and “pest extermination”—did not confer sweeping authority over landlord-tenant relationships.
Administrative Surveillance Violates the Fourth Amendment
Fourth Amendment rights are crucial in preventing government abuse and securing privacy. It is then of little import whether that abuse or invasion of privacy is perpetrated by local police or the IRS; in both cases, Fourth Amendment rights apply with equal force. But judicial precedent has upended this commonsense view. As with other constitutional provisions, the Fourth Amendment is ignored and downplayed by the administrative state.
The Securities and Exchange Commission Fails on 13 of 14 Counts Against NCLA Clients
After a near decade-long Ahab-like pursuit alleging NCLA clients Spartan Securities Group, Island Stock Transfer, principals Carl Dilley, Micah Eldred, and Dave Lopez were knowingly involved in a massive fraud involving creating fake “shell” companies, SEC lost its entire case against Mr. Lopez, and all but one relatively minor civil charge against Spartan, Island, Mr. Dilley, and Mr. Eldred. SEC’s approach was to throw as much spaghetti against the wall as possible in the hopes that something would stick.
Justice Kagan and Stare Decisis
Supreme Court Justice Elena Kagan has staked out a position for herself as the Supreme Court’s foremost defender of stare decisis. That doctrine holds that today’s Court ought to stand by yesterday’s decisions. Respecting stare decisis sometimes means sticking...
The Eleventh Circuit Helped Cement the Judiciary’s COVID Legacy in NCLA’s Challenge to the CDC Eviction Moratorium
Last week, a panel for the Eleventh Circuit in Brown v. Secretary of HHS determined that the U.S. Center for Disease Control likely lacked any power to issue its nationwide eviction moratorium, but two of the three judges still refused to block CDC’s unlawful...
Deference Disregards Duty
Deference is ubiquitous in modern administrative law. Chevron, U.S.A., Inc. v. NRDC, Inc. is the most cited case in administrative law and one of the most cited Supreme Court cases in history, having been cited in more than 17,428 cases and 12,879 law review...
Giving Hope to All: Adorning and Preserving Lincoln’s Apple of Gold
The Constitution’s separation of powers and nondelegation doctrine aren’t important because they’re functions and products of the structure of constitutional government, ipse dixit. They are important because there’s an existential nexus between constitutional...
Administrative Law Judge, Jury and Executioner
Second only to the niceties of how a bill becomes a law, the three branches of government and the manner in which their separate functions safeguard liberty are seared into the mind of every American, due to their halcyon days in civics class watching “Schoolhouse Rock.” Unfortunately, many of our leaders have forgotten these basic, yet indispensable principles.
Suffer the Little Children to Pull Off their Handlers’ Constitutional Coup d’Etat
One of the more disturbing tactics of the plaintiffs’ bar when advancing novel theories in mass tort and climate litigation is to put children in the vanguard of their pleading and media storm. The all-too-successful ploy draws media and public sympathy for...
Good-bye, Morrison v. Olson
United States v. Arthrex, last week’s much-anticipated Supreme Court decision which concluded that the Patent and Trademark Appeal Board (PTAB) is unconstitutionally structured, is unlikely to have a major impact on PTAB operations. The Court “fixed” the...