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Northwestern’s Steven Calabresi and Michael Perl have an interesting new paper on whether the outcome of Brown v. Board of Education can be justified on originalist grounds. Here’s the abstract: This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State […]

The final problem of enforcement discretion is how executive officials should understand their role when enforcing federal criminal laws and other statutes that can’t possibly be fully enforced with available resources. Here recent debates over federal marijuana enforcement and immigration policy are key examples. As more and more states have legalized marijuana use either for […]

In my last two posts, I’m going to apply my framework to some contemporary examples. Because I’m focusing on matters of current interest, these examples all come from the Obama Administration. As I indicated at the outset, however, aggressive use of non-enforcement to set policy is not unique to this administration. Recent Republican administrations have […]

In response to the flap over Duck Dynasty star Phil Robertson’s comments on homosexuality, Brian Doherty provides a useful refresher on the meaning of tolerance. The advantages of classical liberal market cosmopolitanism–the idea that it’s best to set aside peaceful differences of opinion and creed and worries about different races, nationalities, and genders when deciding […]

I had mentioned the lower court ruling on this when it was handed in 2012; today the Canadian Supreme Court affirmed in a decision you can read here. From the summary by the Globe and Mail: The Supreme Court of Canada has struck down the country’s major prostitution laws, saying that bans on street soliciting, […]

The Harvard Law Review contains a new essay on discretion by the late, great, H.L.A. Hart. The essay has apparently long been thought lost and never been published before. The essay was discovered by law student Geoffrey Shaw, who has written an article analyzing it. (Not that I deserve any credit, but I’m pleased to […]

As voting continues for the 2014 Privy Awards, here’s a peek at another closely watched matchup.  Which judge will win the coveted Privy for having written the dumbest privacy decision of the year? Just to make it interesting, the two judicial candidates are both from San Francisco, but Jay Bybee is a Republican appointee to […]

I’ve now laid out my basic framework for the scope of executive enforcement discretion: Congress is generally free to expand or contract executive non-enforcement power, but in the absence of such legislation the executive presumptively holds case-by-case non-enforcement authority but not categorical or prospective non-enforcement powers. I want to quickly address two points that came […]

Back in April, I posted a list of relevant materials on the recess appointments debate that Marty Lederman and I had compiled.  Since then, there has been far more extensive briefing on the subject, and more historical materials have become available.  (One of the great things about the pendency of this case has been all […]

Voting continues in the Privy Award for Privacy Hypocrite of the Year, which features a partisan matchup. One nominee is Republican James (“You Hid Information From Me By Disclosing It at Briefings I Refused to Attend”)Sensenbrener. Another is Kathleen (“Harsh Privacy Penalties for Thee, But Not For Me”) Sebelius. Voting isn’t over, and the contest still […]

As I explained in my last substantive post, I believe the Constitution prescribes two baseline presumptions regarding the scope of executive enforcement discretion — a presumption in favor of case-by-case non-enforcement authority, and a presumption against categorical or prospective non-enforcement for policy reasons. The boundary between case-by-case and categorical or prospective non-enforcement admittedly may not […]

George Will’s latest column discusses my article. You can read it here. I’m of course enormously pleased and flattered.

The report — from Messrs. Sunstein, Swire, Stone, Clarke, and Morell — is here. On the whole, it strikes a middle ground. On one hand, it disagrees with a lot of the status quo, making many recommendations for change. On the other hand, the changes it suggests aren’t particularly radical or dramatic: Most of the […]

So what is the correct framework for enforcement discretion? I believe the Constitution carries a central tension on this point, one that’s best resolved by the two presumptions I articulated at the outset — a presumption in favor of case-by-case discretion and a presumption against categorical or prospective non-enforcement for policy reasons. At the outset, […]

A customizable gift for your favorite imperialist traitor. Thanks to Glenn Reynolds (InstaPundit) for the pointer.