Some conservatives are not big fans of the Chief Justice right now, since they view his opinion upholding the individual mandate “as a valid exercise of Congress’s taxing power [a]s a sell-out of constitutional principle of the first magnitude.” But if you set aside section III-C of his opinion—and I realize that’s a little like, […]
Author Archive | John Elwood
What Did the Court “Hold” About the Commerce Clause and Medicaid?
Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that […]
Whither the Medicaid Expansion?
Like all of you, I am still waiting to get a copy of the actual opinion. But from the reporting of our friends at SCOTUSBlog, it sure sounds like the Medicaid expansion just became essentially voluntary for the states because the federal government can no longer use the “stick” of cutting off pre-existing funds to […]
D.C. Circuit Rejects Challenges to Greenhouse Gas Regulations
The summary of the holding from the court’s opinion: [W]e conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all […]
President Obama’s Deferred Action on Immigration (and OLC)
Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.” (For DHS’s page on the program, see here.) […]
Reading the Tea Leaves on First American Financial Corp v. Edwards
It looks to me that there is only one case undecided from the Supreme Court’s December sitting — First American Financial Corp v. Edwards — and only one Justice without a majority opinion assignment: Justice Thomas. That suggests that the majority opinion was at least initially assigned to Justice Thomas. The case involves whether the […]
Funniest Comment on the New York Times online
News item: Bloomberg Backs Plan to Limit Arrests for Marijuana ALBANY — Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops. Best reader comment: Just don’t get […]
Are Regulatory Restrictions Killing The Law Firm Business Model?
There is an interesting op-ed in the Wall Street Journal today by the Brookings Institution’s Clifford Winston and Robert Crandall, authors of First Thing We Do, Let’s Deregulate All the Lawyers (the op-ed length version of which Jonathan blogged about here). The piece, cheerily entitled “The Law Firm Business Model is Dying,” uses the Dewey […]
Ninth Circuit holds for John Yoo in lawsuit by Jose Padilla
A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla. If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit […]
When Rent Control Becomes A Taking (Bis)
In March, Ilya had this interesting post on Harmon v. Kimmel, 11-496, a case the Supreme Court is now considering that presents the question whether New York’s system of rent regulation effects a taking of private property without compensation. The Court as a whole considered the case for the first time at last Friday’s Conference. […]
OLC Opinion on Pro Forma Sessions and Recess Appointments Published
For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said […]
Recess Appointment of Richard Cordray Despite Pro Forma Sessions
It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments. Under this procedure, the Senate “gavels in” briefly […]
Even Worse Than We Had Hoped: Inside Local TV News
Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years. “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, […]
Me and Kim Kardashian
Because of the press of business at my day job, I’ve had less than usual worth saying recently. In fact, I haven’t posted in months. But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters. An amicus brief I did […]
A Thought-Provoking Look at Independent Agencies
So as all of you doubtless already know (and probably discussed over lunch), today the D.C. Circuit in In re: Aiken County rejected as unripe a challenge to the Department of Energy’s decision to withdraw its application to the Nuclear Regulatory Commission for a license to build a permanent nuclear waste repository at Yucca Mountain, […]