I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should […]
Archive | June, 2013
The Attorney General of the United States is “Delighted” That a Federal Law was Declared Unconstitutional
Well, you don’t see this every day–the chief law enforcement official of the United States (a message sent to DOJ employees) is “delighted” that a federal law was declared unconstitutional. This was forwarded to me by a DOJ lawyer: From: The Attorney General <The.Attorney.General@usdoj.gov<mailto:The.Attorney.General@usdoj.gov>> Date: June 27, 2013, 7:17:58 PM EDT To: Undisclosed recipients:; Subject: […]
The American Illness: Essays on the Rule of Law
The American Illness: Essays on the Rule of Law, edited by my colleague Frank Buckley, is now available from Yale University Press. I have a contribution in the book co-authored with Jeremy Kidd of Mercer University Law School. The list of contributors is impressive to say the least and the papers are uniformly interesting (we […]
Is the Prop. 8 Litigation Really Over?
Same-sex marriages may have resumed in California, but the litigation over Proposition 8 may sputter along for a bit. At SCOTUSBlog, Tom Goldstein reports on some interesting post-decision filings in Hollingsworth v. Perry. Proponents of Proposition 8 are seeking the Supreme Court’s intervention to prevent the U.S. Court of Appeals for the Ninth Circuit from […]
IRS Chief Confirms Targeting of Tea Party Groups
Do recent reports and releases show that “progressive” groups received the same level of scrutiny as “Tea Party” and other conservative groups? No. CNN reports: The acting head of the Internal Revenue Service said Thursday that evidence so far shows only conservative groups underwent extra scrutiny cited by an inspector general’s disclosure of the agency’s […]
“NSA Surveillance Leaks: Fact and Fiction”
Here’s a very interesting panel from earlier in the week in the NSA surveillance programs. I was particularly interested to hear the perspective of Robert Litt, the General Counsel of the Office of the DNI, who begins at the 15:20 mark. Thanks to the LawFare blog for the link.
The First Anniversary of the Obamacare Decision
By Ilya Somin on June 28, 2013 1:30 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxing and Spending Clause
Today is the first anniversary of NFIB v. Sebelius, the Supreme Court’s controversial decision in the Obamacare case. It is still too soon for us to fully appreciate the long-term impact of the ruling. We are also still far from reaching any kind of consensus about the correctness of the Court’s decision. For the moment, […]
Strange Response from “A Group of Latino/a Law Professors”
A self-described “group of Latino/a Law Professors” has published a strange response to my commentary on Hispanics and affirmative action after Fisher, published on Scotus blog, noted by me here, and followed up yesterday. Why strange? Because the response has very little to do with my post. My post, being commentary on a Supreme Court […]
Question about Foundation Donations
Often when I listen to NPR, I’ll hear something along the lines of, “Morning Edition is sponsored by the Smith Foundation. The Smith Foundation, working to improve the lives of the disabled.” I always wonder if the purpose of the Foundation is X, why is it donating to something that is clearly non-X, i.e., NPR. […]
Hobby Lobby Wins Before En Banc Tenth Circuit
The U.S. Court of Appeals for the Tenth Circuit, sitting en banc, breathed new life into Hobby Lobby’s religious freedom challenge to the so-called “contraception mandate.” Here is how Judge Tymkovich summarized the court’s holding in the opinion for the court: This case requires us to determine whether the Religious Freedom Restoration Act and the Free […]
Tom Wolfe, Back to Blood
I read Tom Wolfe’s “Back to Blood” a little while back and figured I’d pass along my thoughts for anyone who is interested. I also commend Peter Berkowitz’s review of the book in Policy Review as one I found insightful. I will try to avoid any spoilers. I’ve read a lot of Tom Wolfe and […]
More Classified Documents Released by The Guardian
From the latest classified document release at The Guardian: A top-secret 2009 report by the NSA Inspector General about NSA surveillance and a secret 2007 DOJ memo on some of the legal issues raised by such surveillance. Wow, there’s a lot in there.
Does the Government Need A Warrant to Attach A GPS Device to A Government Employee’s Car To Monitor Workplace Misconduct?
Today the New York Court of Appeals (the state’s highest court) addressed a novel Fourth Amendment question in Cunninghman v. Department of Labor: If the state suspects that a government employee is submitting false time reports, can it attach a GPS device to the employee’s private car without a warrant in order to track the […]
Brief Followup on Post on Hispanics and Affirmative Action after Fisher
I’ve said most of these things in previous posts, but judging from the comments, memories are short (and we get a lot of new readers the last week of the Supreme Court term), so let me reiterate: (1) I think private universities should be free to have whatever affirmative action policies they want, for whatever […]
Words from Justice Alito
Here’s Justice Alito’s dissent today (joined by Justice Kennedy) from the Court’s decision to send Marrero v. United States back down to the lower court; note the second to last paragraph: [Court:] The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment […]