The D.C. Circuit and 'Cooperative Federalism'
If you are wondering why President Obama wishes to stack the D.C. Circuit, check out Senator Jeff Sessions’s recent report on EPA overreach, “Neglecting a Cornerstone Principle of the Clean Air Act: President Obama’s EPA Leaves States ...
Re: On the Nuclear Option: Go Ahead, Make My Day
The Wall Street Journal, on Democrat threats to invoke nuclear option over President Obama’s recent executive and judicial-branch nominees:
Democrats are threatening once again to use the “nuclear option” to end Senate filibusters and stop Republicans from defeating President ...
House Testimony on D.C. Circuit Court-Packing Plan
Today at 2:00 p.m. in room 2141 of the Rayburn House Office Building my colleague Carrie Severino will be testifying before the House Judiciary Committee on the topic of the D.C. Circuit’s workload and the question of whether the ...
My group, the Judicial Crisis Network, has produced a slideshow entitled “Everything you need to know about the D.C. Circuit in 13 graphics,” about President Obama’s three appointments to the D.C. Circuit Court of Appeals. Our slideshow highlights ...
Obamacare Litigation Update
The Obama administration’s disastrous rollout of the health-care exchanges isn’t the only significant threat to President Obama’s ill-conceived health-care law. The Wall Street Journal has an update on the latest Obamacare lawsuit, which could invalidate the federal ...
Re: Schuette Argument Recap
You know things aren’t looking good for the Left when even Slate thinks they should lose:
The new case is the upside-down version of the last one: It’s about whether states may ban schools from using affirmative action. ...
More on McCutcheon v. FEC
Oral arguments were held last week in McCutcheon v. FEC, which could declare aggregate limits to federal campaign donations unconstitutional. Not surprisingly, the Left is throwing a misguided fit.
The day of the arguments, President Obama reprised his role as ...
Re: The CFPB's Staggering Claim
As if we needed one more example of how the CFPB operates free from normal government oversight, the National Law Journal’s report on a new CFPB settlement included an interesting tangent:
The CFPB is not closed during the government ...
Public Citizen's Unfair Attack on Arbitration
Earlier this month, Public Citizen released a report that praised the work of private consumer lawsuits to make parallel state enforcement efforts possible. The report cites the tobacco litigation and various insurance abuse cases, and calls for strictly limiting arbitration ...
More on Wyeth Inc. v. Weeks
I’ve previously reported on Wyeth, Inc. v. Weeks, the Alabama Supreme Court decision that put Alabama back on the road to tort hell. Shortly after that post the Alabama Supreme Court agreed to rehear the case, which they did ...
Oklahoma Legislators Should Cure the Disease, Not Just the Symptoms
The Federalist Society has released the results of a poll of Oklahomans showing overwhelming support for the idea of abandoning the state’s version of the Missouri Plan in favor of contested elections of judges. The Oklahoman has more:
Justice Ginsburg and 'Judicial Activism'
Justice Ginsburg claimed in an interview with the New York Times published Friday that the Roberts Courts is “one of the most activist courts in history,” as “measured in terms of readiness to overturn legislation.” Justice Ginsburg isn’t breaking ...
Adam White in The Weekly Standard on the D.C. Circuit
Adam White has written an outstanding Weekly Standard cover on the D.C. Circuit Court of Appeals, providing background on the court and context for why conservatives must stop President Obama’s D.C. Circuit court-packing plan:
The D.C. ...
Fred Barnes on Republican State Attorneys General
Fred Barnes has an excellent article on Republican state attorneys general and their ongoing efforts to challenge the Obama administration’s constitutional overreach:
The AGs, who often attack the administration in packs, have done more than Republicans in Congress, statehouses, ...
Windsor and Hollingsworth’s Silver Lining
My take on Windsor and Hollingsworth is here:
In spite of Windsor’s numerous flaws, there is a thin silver lining. Although Justice Scalia is right to complain about the tortured logic in Justice Kennedy’s opinion, federalism remained an ...
Re: Obama Names Three D.C. Circuit Nominees
On Tuesday, when President Obama named three new nominees to the D.C. Circuit, he asserted (and then reiterated) that his nominees have waited three times longer for confirmation than President George W. Bush’s. I’m not exactly sure ...
Pennsylvania Now Following Texas's Lead?
Yesterday, Pennsylvania Republican state representative Daryl Metcalfe, chairman of Pennsylvania house’s State Government Committee, scheduled a hearing to evaluate the tax status of certain “politically active” nonprofit groups, and scrutinize Pennsylvania’s related state-level enforcement efforts.
In light of ...
‘Big Business’ and Genesis HealthCare Corp v. Symczyk
The New York Times’ strained attempts to paint the Roberts Court as the handmaiden of big business continue, this time in the form of Lincoln Caplan’s criticism of the Court’s decision in Genesis HealthCare Corp. v. Symczyk. Genesis ...
Texas Legislators Make it Easier to Target Conservatives
IRS scandal notwithstanding, on Tuesday, the (Republican-dominated) Texas legislature passed S.B. 346, a bill to force non-profit organizations and trade associations to disclose the names of the people who support them financially. The law exempts unions, but covers groups that ...
Justice Ginsburg on Roe v. Wade
Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the ...
The Left's Intimidation Campaign over Shelby County v. Holder
During February’s Supreme Court oral argument in Shelby County v. Holder over Section 5 of the Voting Rights Act, Justice Scalia characterized Section 5 as a “racial entitlement,” which would never be repealed. A few weeks ago, Justice Scalia defended his ...
Recent Missouri Plan Media
Law professors G. Alan Tarr and Brian Fitzpatrick had an excellent USA Today op-ed on state judicial selection on Friday:
Why are people increasingly disenchanted with the Missouri Plan? One reason is that it has not delivered on its promises. ...
Republican State Attorneys General and the EPA
The 2012 election cycle provided many conservatives with a harsh reminder that they cannot always look to Washington for solutions. For the next four years, at least, the most meaningful victories are likely to originate in state capitals or come to ...
Representative Hensarling on the CFPB
The logical import of Noel Canning v. NRLB, the D.C. Circuit’s decision striking down President Obama’s unilateral, non-recess NRLB appointments, is that the president’s similar CFPB director appointment is also unconstitutional. House Financial Services ...
Harry Reid's Selective Memory
Democrats are outraged after last week’s successful filibuster of D.C. Circuit judicial nominee Caitlin Halligan. Last Tuesday, Harry Reid even hypocritically invoked the Senate’s narrow confirmation of Clarence Thomas to show that every nomination deserves an up-or-down ...
Linda Greenhouse and the Voting Rights Act, Part 1
Left-leaning legal commentators such as Linda Greenhouse are hyperventilating after last week’s oral argument on Section 5 of the Voting Rights Amendment, which was unfavorable for the Section’s proponents. For Greenhouse, striking down Section 5 of the Voting Rights Act ...
The Continuing Problem of Over-Criminalization
Fulbright & Jaworski’s Ninth Annual Litigation Trends Survey illuminates the issue of over-criminalization, a topic that I’ve previously written about. According to the ABA Journal:
“General counsels at nine of 10 U.S. businesses say they expect litigation at their ...
Dodd-Frank Constitutional Challenge Gaining Momentum
Great news today. Eight attorneys general from Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas, and West Virginia are joining the constitutional challenge to Dodd-Frank. MarketWatch has more:
The states are joining part of the suit that challenges a measure setting ...
Paul Krugman and the CFPB
The January 25 D.C. Circuit opinion striking down President Obama’s non-recess, unilateral NRLB appointments has left the Consumer Financial Protection Bureau’s future greatly in doubt. An invalidation of CFPB director Richard Cordray’s appointment, which President Obama made ...
D.C. Circuit Unanimously Strikes Down NRLB Appointments
A unanimous D.C. Circuit Court opinion today struck down President Obama’s three unilateral, non-recess appointments to the NRLB. How Appealing has more:
In today’s ruling, the three-judge panel first unanimously holds that, for purposes of the U....
Kansas’s Judicial Nominating Commission Under Fire
Hearings in Kansas over judicial selection reform continued yesterday, as two members of Kansas’s judicial nominating commission testified for the House Judiciary Committee. They attested to what Bench Memos readers already know—that the commission masks partisan politics in ...
Geithner's Too-Big-to-Fail Legacy
Simon Johnson on Dodd-Frank and too-big-to-fail:
In Mr. Geithner’s view of the world, the 2010 Dodd-Frank financial reform legislation fixed the problem of too-big-to-fail banks. Outside of Treasury, it’s hard to find informed observers who share this position. Both ...
Dodd-Frank in an Age of Uncertainty
Louise Bennetts of the Cato Institute has a great piece in Jurist, entitled “Dodd-Frank: Discretion in an Age of Uncertainty.” Ms. Bennetts describes one key theme of the separation of powers challenge to Dodd-Frank—its use of unrestrained regulatory discretion:
The Battle for Judicial Selection Reform in Kansas
Back in November, I wrote about efforts to reform Kansas’s judicial-selection system. Kansas follows the Missouri Plan, which forces Governor Brownback to appoint judges from a slate handpicked by a bar-dominated nominating commission. These judges must later stand for ...
Nan Aron's D.C. Circuit Myths
Last week’s D.C. Circuit ruling against the HHS contraception mandate – a blow to the President’s unconstitutional religious-liberty agenda – has highlighted one more reason to stop President Obama’s court-packing plan; if it succeeds, the court will be ...
Collegiality, Court-Packing, and the D.C. Circuit
The House Judiciary Committee held hearings yesterday on whether the D.C. Circuit Court of Appeals needs new judges, with testimony from my colleague Carrie Severino, along with Senator Chuck Grassley, C. Boyden Gray, and Nan Aron.
While the Left ...
Republican AGs vs. Obama's Court-Packing Plan
In July The Weekly Standard published a cover story by Fred Barnes about the new crop of state attorneys general who are engaged in an ongoing effort to ensure that President Obama’s political agenda does not exceed constitutional limits. ...
Senator Cornyn on the D.C. Circuit
Senator Cornyn has an op-ed on FoxNews.com urging Republicans to use the upcoming battle over the D.C. Circuit as a unifying event:
In recent weeks, the national media have been obsessed with highlighting divisions and disagreements among Republicans ...
How to Fix Too Big to Fail
Three years after the passage of Dodd-Frank – a law that was supposed to permanently end the massive publicly funded bailouts of 2008 – it’s clear that the discredited and unpopular practice of unofficially treating certain institutions as “too big to fail” ...
Republican State AGs and Utility Air Regulatory Group v. EPA
Conservative state attorneys general have been on the front lines of battles for limited government, on topics ranging from Obamacare and Dodd-Frank to the EPA (Texas attorney general Greg Abbott alone has filed 17 lawsuits against the EPA). The Wall Street ...
The Oklahoman Endorses Move Away from Missouri Plan
In late August I reported on the steps being taken by Oklahoma legislators to reform their state’s judicial-selection process, a move that Oklahomans support by wide margins. According to a poll recently released by the Federalist Society, 69 percent of ...
The CFPB's Staggering Claim
I’ve previously written about CEI’s constitutional challenge to the Consumer Financial Protection Bureau, which is currently on appeal to the D.C. Circuit Court of Appeals. According to the lawsuit, the CFPB’s lack of accountability to Congress, ...
C. Boyden Gray on the D.C. Circuit.
C. Boyden Gray has a great op-ed on President Obama’s D.C. Circuit Court packing plan. I thought Gray’s argument that it will hurt collegiality on the court was particularly insightful:
Even worse, the president’s recent nomination ...
The Obama Administration Should Listen to Jed Bartlet
The Federalist Society’s Executive Branch Review Project has an excellent summary by Alison Somin of the Justice Department’s lawsuit against Louisiana for offering school vouchers to students at underperforming schools. Be sure to also read John Hindraker’s ...
Re: Governor Brownback’s Stellar Judicial Appointment
Kansas Governor Sam Brownback’s nomination of Caleb Stegall to the state court of appeals is proceeding with little fanfare. Sure, a few fringe gadflies are very upset, and the Soros-funded lobby group Justice at Stake keeps trying to stoke ...
Governor Brownback's Stellar Judicial Appointment
Kansas governor Sam Brownback has nominated his chief counsel, Caleb Stegall, to fill an opening on the Kansas Court of Appeals. The Kansas City Star reports:
Caleb Stegall is the first to be nominated as a judge in the state’...
Ed Whelan had an excellent appearance on Fox News yesterday on Cornelia Pillard and President Obama’s D.C. Circuit court-packing plan.
The Myth of a Pro-Business SCOTUS
Richard Epstein, on the Supreme Court’s alleged big-business bias:
I do not want to be construed as an apologist for big business, but I do think that the current anti-business rhetoric seriously misstates the relevant issues. Commentators could just ...
Senator Hatch on the D.C. Circuit Nominations
Senator Orrin Hatch weighs in on President Obama’s D.C. Circuit court-packing plan:
The Senate should not consider another nominee to the U.S. Court of Appeals for the D.C. Circuit until the need to fill this vacancy ...
Thank You, Governor Perry
On Saturday, Texas governor Rick Perry vetoed S.B. 346, legislation that would have forced certain nonprofit groups to disclose their financial supporters. As I’ve previously written, this unconstitutional legislation would have made it easier to target conservatives, which already ...
Re: Texas Legislators Make it Easier to Target Conservatives
The Wall Street Journal has picked up on the Texas legislature’s attempt to force certain 501(c)(4)s and 501(c)(6)s to disclose their donors:
In 2012, independent political spending by 501(c)(4)s and 501(c)(6)s made up about 1% of overall ...
Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority
The Wall Street Journal has a great summary of the Third Circuit’s opinion invalidating one of President Obama’s NLRB recess appointments:
In a 2-1 decision, Judge D. Brooks Smith ruled in National Labor Relations Board v. New Vista ...
On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the ...
AEI on Dodd-Frank and Community Banks
AEI released an excellent paper this week by Tanya Marsh and Joseph Norman, “The Impact of Dodd-Frank on Community Banks,” detailing the damage the financial reform bill has inflicted on these important institutions. As the authors explain, the Consumer Financial ...
Jeb Hensarling on Richard Cordray
President Obama’s attempt to circumvent the Senate by unilaterally appointing Ohio politician Richard Cordray to the Consumer Financial Protection Bureau may have been premised on his expectation that he would get away with it. If so, he seems to ...
On Monday, President Obama nominated Thomas Perez, currently head of the Department of Justice’s Civil Rights Division, to serve as labor secretary. Perez’s tenure as head of the Civil Rights Division has come under great criticism, and many ...
Re: Wyeth Inc. v. Weeks, ‘Innovator Liability,’ and Alabama’s Road to Tort Hell
The Wall Street Journal yesterday had an excellent editorial about a recent Alabama supreme court opinion, Wyeth, Inc. v. Weeks, which could once again make the state a “tort hell” for businesses:
Can a drug company be held ...
Re: The Left’s Last Hurrah in Wisconsin
Over at the homepage, Wisconsin attorney Rick Esenberg has an excellent article, “The Left’s Last Hurrah in Wisconsin,” about the state’s upcoming supreme court election between sitting justice Patience Drake Roggensack, and Marquette University Law School professor Ed ...
Linda Greenhouse and the Voting Rights Act, Part 2
Continuing from my part 1 post:
Myth 2: Section 5 is critical to stopping states’ discriminatory changes to voting rights laws
Greenhouse points out that Section 5 stopped Texas’s enforcement of “the country’s most stringent voter ID law,” and induced South Carolina ...
When the CFPB Makes the Rules
The Washington Monthly’s Haley Edwards, in “He Who Makes the Rules,” laments the federal government’s dysfunctional regulatory apparatus, dubbing it the “seventh circle of bureaucratic hell.” President Obama’s “biggest second-term challenge . . . [will be] saving his biggest first-term ...
No, the CFPB is Not Good for Consumers
The Left’s constant refrain regarding proposed changes to the structure of the Consumer Financial Protection Board — by Paul Krugman, the New York Times editorial board, Andrew Rosenthal, congressional Democrats, and others — is that such changes would just weaken the ...
The New York Times and Big Banks
Yesterday’s New York Times had a staff editorial (“Quietly Killing a Consumer Watchdog”) complaining that “Republicans are using backdoor methods to destroy” the Consumer Financial Protection Bureau because it has done such a good job of protecting consumers. According ...
Some Great Quotes from the D.C. Circuit's Opinion
More on the D.C. Circuit NRLB opinion.
On why the appointments violated separation of powers:
Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances ...
Todd Zywicki on the CFPB's 'Policy-Based Evidence-Making'
The Consumer Financial Protection Bureau released its “qualified mortgages” rules a few weeks ago, a move that will dramatically alter the housing industry’s regulatory landscape. Unfortunately, the move also illuminates the need for structural reform to the CFPB. Qualified ...
Dallas Federal Reserve on Too Big to Fail
Richard Fisher, president of the Federal Reserve Bank of Dallas, on too-big-to-fail:
[Too Big To Fail is defined as] financial firms whose owners, managers and customers believe themselves to be exempt from the processes of bankruptcy and creative destruction. Such ...
Over-criminalization and the Tragic Case of Aaron Swartz
On Friday, 26-year-old internet activist Aaron Swartz—who was facing 13 federal charges, along with a potential $1 million fine and 35 years in prison—committed suicide. Federal prosecutors had charged Swartz with using an unlocked MIT computer closet to download, for free, ...
More on Dodd-Frank and Community Banks
It should come as a surprise to no one how costly and unwieldy Dodd-Frank is proving to be. Dodd-Frank regulators have missed 142 (59.9 percent) of the 237 passed rulemaking deadlines, and while the Panama Canal was built in 20 million man hours, Dodd-Frank’...