On Friday the White House issued a memorandum for the heads of all federal departments and agencies on “Scientific Integrity.” The NYT reports: Under the guidelines, government scientists are in general free to speak to journalists and the public about their work, and agencies are prohibited from editing or suppressing reports by independent advisory committees. […]
Author Archive | Jonathan H. Adler
Is Judge Hudson’s Opinion “Irresistible”?
In today’s NYT, Brooklyn Law’s Jason Mazzone explains why Judge Hudson’s analysis in Virginia v. Sebelius may prove “irresistible” to the Supreme Court. When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must […]
Pawlenty v. Public Sector Unions
Minnesota Governor Tim Pawlenty, a likely contender for the 2012 GOP Presidential nomination, inveighed against public employee unions in yesterday’s WSJ. The moral case for unions—protecting working families from exploitation—does not apply to public employment. Government employees today are among the most protected, well-paid employees in the country. Ironically, public-sector unions have become the exploiters, […]
From Judge Hudson’s Pen to Justice Scalia’s Ear
Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics. […]
A Brief Reply to Orin on the Necessary and Proper Clause
In my post below I wrote that “none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures.” Orin suggests that a passage from United States v. Comstock, quoting Burroughs v. Untied […]
Further Thoughts on the Virginia Health Care Ruling and the Necessary and Proper Clause
In his post below, Orin criticizes Judge Hudson’s opinion for implying that if Congress may not regulate inactivity under the Commerce Clause it also may not reach such conduct under the Necessary and Proper Clause. This cannot be right because, as Orin notes, the whole point of the clause is to give Congress the ability […]
Initial Thoughts on the Virginia Health Care Ruling
The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers. The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity. Reforming America’s health care system is […]
Health Care Case Coverage
How Appealing has a round-up of early coverage and reaction to today’s health care ruling here. I’ll post my own thoughts on the decision later.
Who Won the Tax Deal?
I’ll leave it to the professional pundits to determine whether House Republicans, President Obama, or someone else got the better deal with last week’s announced compromise. One winner in the deal, however, is the ethanol lobby. Although conservative Republicans, environmental groups and even Al Gore had come out against extending ethanol’s tax breaks, Iowa lawmakers […]
The TSA’s Response to the Breast Milk Incident
Last week, I posted a link to this video of one woman’s experience with airport security after asking to have her breast milk visually screened instead of x-rayed (as TSA procedures allow). At the time, I said I’d like to hear the TSA’s side of the incident, as the video appears to show TSA employees […]
Gay Marriage Event in Columbus
On Thursday I will be in Columbus for a panel on the question: “Does the U.S. Constitution Require Same-Sex Marriage?” sponsored by the Columbus Lawyers Chapter of the Federalist Society. My co-panelists will be Ed Whelan of the Ethics and Public Policy Center and Mark Strasser of the Capital University Law School. Further event details […]
Ginsburg on Dissenting Opinions
The Minnesota Law Review has published “The Role of Dissenting Opinions” by Justice Ruth Bader Ginsburg. The essay is based on a lecture Justice Ginsburg gave at the Harvard Club of Washington, D.C. in December 2009. ustice Ginsburg summarizes her view as follows: although I appreciate the value of unanimous opinions, I will continue to speak […]
Wrong But Not En Banc Worthy
Last week, the U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing en banc in Mitts v. Bagley, a habeas case in which a divided panel granted a writ of habeas corpus on the grounds that the jury instructions were unconstitutional under the standard set forth in Justice Stevens sole concurring […]
More Commentary on American Electric Power:
Following up on my post from earlier today, here is some more commentary on the Supreme Court’s decision to accept cert in American Electric Power v. Connecticut. Douglas Kysar (Yale), ACSBlog Jonathan Zasloff (UCLA), Legal Planet And here is news coverage from the WSJ and Greenwire. UPDATE: More from NRDC’s Swithcboard and the Center for […]
Global Warming Goes Back to Court
This morning the Supreme Court accepted certiorari in American Electric Power v. Connecticut, a case in which several states and environmental groups alleged that greenhouse gas emissions from several large utilities constitute actionable contributions to the public nuisance of global warming. This case has potentially broad implications for continuing climate change litigation in federal courts […]