Opinion
The Constitution Can Crack Section 230
Section numbers of federal statutes rarely stir the soul, but one of them, 230, stirs up much fear, for it has seemed to justify censorship. Relying on it, tech companies including Google and Twitter increasingly pull the plug on disfavored posts, websites and even...
Main Street Investors Must Push Back Against SEC Power Grab
Imagine Congress enacting a law providing that every trade you or your broker makes in the stock market must be reported to the Securities and Exchange Commission for storage in a government database. This forced surrender is analytically no different from reporting...
Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire: How the Court’s Decision in Seila Law Makes CFPB’s Unlawful Structure Even Worse
The U.S. Supreme Court’s June 29, 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau fixed a glaring constitutional defect in the way Congress structured the Consumer Financial Protection Bureau (CFPB or Bureau). “[D]eviat[ing] from the structure...
When The Wolf At The Door Is Your Governor
The novel coronavirus pandemic has many Americans struggling to keep the wolf from the door of their homes and businesses. For Pennsylvanians, the threat has become all the more menacing, because the wolf at their doors is the governor—and the state supreme court just...
Baker usurping the role of Legislature
The Governor's Executive Order shutting down “non-essential” businesses and organizations has been in place since March 24. While Gov. Charlie Baker has modified the order and eased some of his restrictions, that doesn’t legitimize them. His orders are not laws passed...
Judge Sullivan Disregards Two Controlling Precedents By Appointing Amicus In Flynn Case
U.S. District Court Judge Emmet Sullivan disregarded two controlling precedents from higher courts with his decision to appoint John Gleeson as amicus curiae in the U.S. v. Michael Flynn case this week. Judicial conduct similar to J. Sullivan’s in these prior, far...
How My Joke on Twitter Became a Federal Case
I’m under federal investigation for making a joke on Twitter. In June 2019, employees at the left-liberal Vox Media Inc. walked off the job demanding a new collective bargaining agreement. As the publisher of a conservative website, the Federalist, I found the clash...
The CFTC Velociraptor Has Escaped the Fence That Dodd–Frank Built to Contain It
Like the velociraptors testing the perimeter of their enclosure in Jurassic Park, the Commodity Futures Trading Commission (CFTC) has begun probing the weaknesses in the statute that is supposed to fence the agency's authority. The case of Monex Deposit Company v....
Brand X deference advances ‘administrative absolutism’
When Justice Clarence Thomas dissented from the denial of certiorari last week in Howard and Karen Baldwin v. U.S., he lamented that “Brand X has taken this Court to the precipice of administrative absolutism.” Given that Thomas himself authored NCTA v. Brand X...
The Worst Doctrine Few Have Heard of: Brand X
Federal administrators must love Darth Vader's iconic --and ominous-- line, "I'm altering the deal. Pray I don't alter it any further." That's because the Brand X deference doctrine lets them. Deference doctrines require judges to abdicate their duty of independent...