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When “General Welfare” Becomes a Blank Check: Why the Supreme Court Should Reexamine Congress’s Spending Power
Blogs
Does Congress actually have the power to spend? One looking only at the Constitution’s text would be hard-pressed to find any language that grants Congress a general spending power. Yet modern-day Spending Clause jurisprudence has given Congress an expansive spending power that cuts through other constitutional constraints. The Spending Clause, art. I, § 8,…
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7 Reasons SCOTUS Needs to Declare Humphrey’s Executor All Dead
Blogs
The United States Supreme Court will hold oral argument in early December in Trump v. Slaughter,to decide whether the President of the United States has the authority to remove a Commissioner of the Federal Trade Commission. In agreeing to hear the case on an expedited time frame, the high court also directed the parties to…
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Is the Administrative State Above the Law?
Blogs
“No one is above the law,” we say—“we” being those of a basically republican frame of mind, and “republican” being the belief (as relevant here) that governmental actors are those who exercise delegated authority with the majority consent of the governed, but who are otherwise no different from the rest of us. But who is…
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“Necessary” Discretion: A Primer for Non-Lawyers
It has been nearly a decade since Justice Elena Kagan summarized the judicial interpretation zeitgeist by noting that “[w]e’re all textualists now.”[1] And while it may be that textualism is a predominate form of statutory interpretation, and Congress is presumed to give words their plain meaning, those words—perhaps to the surprise of their drafters—are not always…
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Climbing the Ladder of Statutory Interpretation: Why Skipping Rungs Collapses the Structure of the Statute
Blogs
Courts are in the business of saying what the law is, not what the law should be. Congress is in charge of writing statutes that are understandable and don’t leave holes where agencies—or courts—decide to put their creative touch on the wording. But Congress is not perfect, and statutes get passed that look like a…
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Relentless/Loper Bright in the Lower Courts: Flare-Ups After Chevron’s Fall
Blogs
The battle to determine the import of the Supreme Court’s landmark 2024 ruling in Relentless v. Department of Commerce and its companion case Loper Bright Enterprises v. Raimondo in the lower courts has featured a few notable flare-ups recently. Such flare-ups could be expected. The ultimate import of a Supreme Court opinion over the activities…
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