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 to wrong decisions, because, as Justice Brandeis famously explained, it is usually “more important that…

  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 order. The panel’s decision has the feel of a court…

  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 articles as of June 28, 2021. Many types of judicial…

  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 order and its role as the bulwark protecting our civil liberties. In fact, we just celebrated this nexus for the 245th…

  Author: NCLA Legal Intern Max Hyams 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…