Posts Tagged ‘constitutional law’

Constitutional law roundup

  • Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
  • “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
  • “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
  • “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
  • First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
  • Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]

Supreme Court and constitutional law roundup

“Administrative Law Judges Are Unconstitutional”

Administrative law judges are executive-branch as distinct from judicial officers, yet the President has no power to remove them; at the Securities and Exchange Commission and many other federal agencies, they are themselves employed by the agency on whose enforcement cases they must render quasi-judicial rulings. In recent years federal judges have expressed unease about whether assigning ALJs this particular combination of adjudicatory powers and institutional affiliations is entirely consistent with the U.S. Constitution, and now a Cato Institute amicus brief, in the D.C. Circuit case of Timbervest LLC v. Securities and Exchange Commission, urges courts to take the next logical step and rule that it is not. [Ilya Shapiro and Thaya Brook Knight; earlier here, here, here here, etc.]

Randy Barnett, “Our Republican Constitution”

Georgetown law professor Randy Barnett came to Cato April 21 for a book forum to discuss his new book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (reviews). Roger Pilon introduced and there were comments from University of Maryland law professor Robert Percival. Description in part:

The Constitution begins with the words “We the People.” But from our earliest days there have been two competing notions of “the People,” leading to two very different constitutional visions. Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a democratic constitution that allows the will of the people to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a republican constitution is needed to secure the preexisting inalienable rights of “We the People,” each and every one, against abuses by the majority. In his latest book, with a foreword by George Will, Randy Barnett explains why “We the People” would greatly benefit from the renewal of our republican Constitution, and how this can be accomplished in the courts and the political arena.

During the Q & A period, I ask a question about amending the U.S. constitution. More: Nick Gillespie interviews Barnett for Reason TV.

Supreme Court roundup

  • Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
  • George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
  • Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
  • Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
  • OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
  • Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]

Scalia’s change of mind on agency deference

Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]

Amending the Constitution

The National Archives mounts an exhibition of proposed constitutional amendments over the years. To understate matters, not all of them were great ideas [Michael Ruane, Washington Post]

On the idea of an Article V convention to propose constitutional amendments, of which I have been critical lately, you can watch a presentation I gave to the Common Cause national “Blueprint for a Great Democracy” conference held last week.