- Cato files amicus in “hydroponic gear + discarded tea leaves = raid their house” case [Ilya Shapiro and Randal John Meyer, earlier on Harte v. Johnson County, Kansas Commissioners]
- Call off contest for most wrongheaded op-ed about SCOTUS vacancy, clear winner has emerged [Gregory Diskant]
- “If police tell you about a good body shop after an accident, beware this one thing.” [@clickbaitSCOTUS on Ocasio v. U.S.]
- “Maryland Court Suppresses Evidence Gathered By Warrantless Stingray Use” [Tim Cushing, TechDirt]
- Evenwel v. Abbott: “Supreme Court Leaves Meaning of ‘One-Person, One-Vote’ Unclear” [Ilya Shapiro/Cato, earlier]
- Ripeness is all: Thomas/Kennedy dissent in Arrigoni Enterprises v. Town of Durham will excite inverse taking mavens [Gideon Kanner]
- Some reactions to Donald Trump’s release of a list of 11 judges he’d consider for SCOTUS nominations [Ilya Shapiro, Volokh Conspiracy quartet of Eugene Volokh, Jonathan Adler, Orin Kerr, Ilya Somin; Justice Don Willett‘s online humor has not spared Trump]
One incidental impact of a Trump presidency: mainstream law professors would develop a sudden, strange new respect for constitutional law concepts such as separation of powers and federalism, which tend to serve as checks on the power and ambition of the President and his backers. [Paul Horwitz, PrawfsBlawg]
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.]
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.
In this new “Free Thoughts” podcast from Cato’s Libertarianism.org, Trevor Burrus interviews George Mason University professor Frank Buckley about his recent book, “The Once and Future King: The Rise of Crown Government in America.”
All minimum wage laws are bad economics, but Seattle’s new law adds its own potentially unconstitutional twist: harsher terms for out-of-state businesses [Ilya Shapiro and Jayme Weber, Cato]
- 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]
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]
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.
In a case raising some of the same issues as the dispute over forcing Apple to unlock the San Bernardino killer’s iPhone, a federal magistrate judge in New York has ruled that the All Writs Act does not empower courts to order the unlocking of an alleged drug dealer’s phone. The legal issues are complex, but — I argue in a short piece at Ricochet — belie the notion that originalism in judicial interpretation is going to fade away with Justice Scalia no longer on the Supreme Court. More background: Sarah Jeong.