A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; […]
Archive | Separation of Powers
Evaluating the REINS Act
The NYU Journal of Legislation and Public Policy has published my article “Placing Reins on Regulations: Assessing the Proposed REINS Act” in its latest issue. The arguments I make in this piece should be familiar to readers of this blog. In the same issue, the NYUJLPP has also published “The REINS Act and the Struggle to Control Agency […]
States Pile on Against Dodd-Frank
By Jonathan H. Adler on February 13, 2013 5:31 pm in Administrative Law, Financial Crisis, Separation of Powers
Eight more states have joined a lawsuit challenging the constitutionality of various provisions of the Dodd-Frank financial reform law. The states are Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia. As three states (Oklahoma, Michigan, and South Carolina) had already brought suit, this brings the total number of states involved in the suit […]
The Trillion Dollar Coin and the Problem of Circulation
By Eugene Kontorovich on January 9, 2013 5:51 pm in Congress, Constitutional Law, Finance, Originalism, Separation of Powers, Uncategorized
“Everyone loves money. That is why they call it MONEY.” – David Mamet. The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly […]
Filibuster Suit Dismissed
By Jonathan H. Adler on December 22, 2012 1:23 pm in Administrative Law, Congress, Separation of Powers, Standing
Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, […]
Three States Join Lawsuit Against Title II of Dodd-Frank
By Jonathan H. Adler on September 20, 2012 6:39 pm in Administrative Law, Financial Crisis, Separation of Powers
A news release from the Competitive Enterprise Institute notes that the attorneys general of Michigan, Oklahoma, and South Carolina have joined their lawsuit challenging the constitutionality of portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The original suit challenged several Dodd-Frank provisions, including creation of the Consumer Financial Protection Board. The states’ […]
D.C. Circuit Holds Copyright Royalty Board Unconstitutional
By Jonathan H. Adler on July 6, 2012 11:27 am in Administrative Law, Copyright, Separation of Powers
This morning, in Intercollegiate Broadcast System v. Copyright Royalty Board, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit consisting of Judges Garland, Griffith, and Senior Judge Williams declared the Copyright Royalty Board to be unconstitutional under the Appointments Clause, and adopts a narrow fix. This was not a surprising development, […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Suit Filed Challenging Constitutionality of CFPB
The State National Bank of Big Spring, Texas, the 60-Plus Association, and the Competitive Enterprise Institute filed suit against the Consumer Financial Protection Board alleging that the CFPB, as currently structured, is unconstitutional. Specifically the suit alleges that the CFPB lacks political accountability because, among other things, the President cannot remove the Bureau’s director save […]
Flip-Flops on Executive Privilege
By Jonathan H. Adler on June 20, 2012 10:38 pm in Executive Branch, Kerr's Law, Separation of Powers
From Charlie Savage’s NYT report on President Obama’s assertion of Executive Privilege as the basis for the Justice Department’s refusal to turn over internal agency documents concerning the “Fast and Furious” scandal to a house oversight committee: The invocation of executive privilege by Mr. Obama added a new element to the drama. While there is little […]
White House Asserts Executive Privilege as Contempt of Congress Vote Looms
I have not been following the “Fast and Furious” scandal all that closely (or even much at all), but this seems like an interesting development for those who are interested in separation of powers questions. President Obama asserted executive privilege over documents related to the “Fast and Furious” operation Wednesday as a House panel moved […]
Passport Dispute Does Not Present “Political Question”
In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department’s refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have “Israel” listed as their birthplace. The […]
A Recess Appointment for Cordray
The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board. Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of […]
War Powers Suit Dismissed
By Jonathan H. Adler on October 23, 2011 1:43 pm in Executive Branch, Separation of Powers, War on Terror
On Thursday, U.S. District Court Judge Reggie Walton dismissed Kucinich v. Obama, a suit filed by ten members of Congress alleging that President Obama’s use of military force in Libya was unlawful as it violated the War Powers Act and lacked Congressional authorization. Judge Walton held the members of Congress lacked standing to bring […]
Debate on the Legality of the Libya Intervention at the University of Akron Law School
By Ilya Somin on August 22, 2011 11:30 am in Constitutional Law, Separation of Powers, War and Armed Conflict
This Wednesday at 12:15 PM, I will be debating the legality of the Libya intervention at the University of Akron Law School with Akron law professor Wilson Huhn. I previously wrote about these issues here, here, here, and here.