Opinion
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...
INSIGHT: White House EOs Shed Light, Restore Constitutional Limits on Government Power
President Trump’s two executive orders bring federal agency guidance out of the darkness and promote transparency and fairness. Peggy Little, senior litigation counsel with the New Civil Liberties Alliance, says they should be cheered by Americans across political...
Trump’s New Executive Orders To Restrain the Administrative State
President Donald Trump just announced two executive orders to rein in unlawful administrative state action. The first order declares that its goal is "to ensure that Americans are subject to only those binding rules imposed through duly enacted statutes or through...
President Trump Rightfully Orders Agencies to be Transparent and Fair; USDA Should be the First to Comply
Despite the fact that the Constitution and Administrative Procedure Act prohibit the practice, federal agencies often engage in the commonplace tactic of issuing informal interpretations, factsheets, and other forms of “guidance,” to force compliance with a slew of...
Secret Laws for the Powerful
The Office of Management and Budget issued a memo recently reminding all federal administrative agencies that “the Constitution vests all Federal legislative power in Congress.” That may seem obvious, but agencies often regulate Americans beyond their lawful authority...