Opinion
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...
Despite Sentencing Reform, the US Bureau of Prisons is Holding Thousands of Inmates Illegally Beyond their Release Dates
Originally published in Washington Examiner on July 8, 2019Robert Shipp is serving the remainder of a federal prison sentence on an ankle monitor in Chicago, Illinois. But Shipp is being held unlawfully by the U.S. Bureau of Prisons.Even though he was due to be...
Chief Justice Roberts Is Dead Wrong About Auer Deference
Originally published in Forbes on June 30, 2019 Chief Justice John Roberts lent the crucial fifth vote to uphold so-called Auer deference (solely on stare decisis grounds) in last week’s Kisor v. Wilkie case at the U.S. Supreme Court. In so doing, he wrote that “the...
Unless Fixed Now, Ninth Circuit Case Granting Immunity For Police Theft Will Prove Hard To Unwind
Originally published in Forbes on June 18, 2019 Wide consequences will stem from the U.S. Court of Appeals for the Ninth Circuit’s recent decision granting qualified immunity to several Fresno, California police officers sued for theft. These consequences will prove...
INSIGHT: Theft by Police Officers Is Unconstitutional, Right?
Originally published in Bloomberg Law on June 17, 2019 Fresno, Calif., police officers may have just gotten away with grand larceny. The Ninth Circuit recently passed on the opportunity to establish—once-and-for-all—that police officers stealing private property while...