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The SEC’s Climate Rule—And Other “Whole of Government” Assaults on Democracy
Blogs
The SEC’s Climate Rule—And Other “Whole of Government” Assaults on Democracy The Securities and Exchanges Commission’s new climate-disclosure rule is just one small part of the Biden Administration’s sweeping “whole of government” climate campaign.[1] But the rule provides us a timely reminder of why these campaigns are, by definition, hostile to our constitutional order. The…
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Will Lower Courts Preserve the Administrative State?
Even if many close court-watchers anticipated overturning Chevron deference during the Supreme Court’s last term, where the Court would place its accent remained an open question. However, the overturning of Chevron in the Supreme Court’s Loper Bright/Relentless decision will not be shaped exclusively or even largely by what the Supreme Court said or what Congress does in its wake, despite what…
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The ‘Tell’ in Zuckerberg’s Letter to Congress
Mark Zuckerberg sent a mea culpa letter Monday to House Judiciary Chairman Jim Jordan, admitting that Meta, which owns Facebook, erred in acquiescing to government pressure for censorship. But it’s important to look closely at what the letter says and what it doesn’t. On the one hand, Mr. Zuckerberg concedes what by now is obvious—that there was much…
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An Illusory Nondelegation Doctrine: The Case of Ghost Golf
Blogs
When the Covid-19 pandemic hit the U.S. in 2020, California Governor Gavin Newsom issued the “Blueprint,” a complex regulatory response which tightened and loosened restrictions on activities depending on the severity of the pandemic in each county. The Governor took these actions pursuant to the Emergency Services Act (ESA), which authorized him to assume “all…
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Denying Deference
Blogs
Before starting law school, I thought most law was established, even stagnant. I knew that certain politicized cases made headlines when overruling precedent. But I learned that many influential cases overturning precedent are not broadly publicized. For instance, the Supreme Court recently decided Loper Bright and Relentless (which were argued in tandem) and by overruling…
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Jarkesy v. SEC—How a Seemingly Boring Fraud Case Begins to Restore the Separation of Powers (and our Individual Rights)
Blogs
“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.” These words written by Baron de Montesquieu were foundational to the Framers’ concept of separation of powers. In turn, they influenced the very fabric of our government as it exists today. The Framers firmly believed that the judiciary…
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