Category Legislative Branch

Third Circuit Judge Rails Against Chevron & Auer Deference

Add another federal judge to the growing chorus of individuals concerned that the Court’s administrative law jurisprudence has gone off the rails. Egan v. Del. River Port Auth., — F.3d —, 2017 WL 1055568 (3d Cir. Mar. 21, 2017) involved discrimination and retaliation claims an employee brought against the Port Authority, alleging violations of federal law […]

The Feinstein Paradox

Judge Gorsuch’s nomination hearings began today. Much could be said given all that was uttered from the dais, but I’ll keep my powder dry regarding most of it. I would like to focus on one highlight, however – I’ll call it the Feinstein Paradox.* In her opening statement, Senator Feinstein highlighted “the 14 key cases […]

END THE FAILED AUER EXPERIMENT NOW*: THE FLAWS OF DEFERRING TO AGENCY INTERPRETATIONS OF THEIR OWN AMBIGUOUS REGULATIONS**

  Introduction Imagine a hapless individual, forced to participate against her will in a game over which participants must wager significant sums of money. The rules of the game are complex and arcane, and this individual is unfamiliar with them. Her competitor, however, is savvy and experienced, having played this game many times in the […]

“A Truly Terrible Idea” – An Outcome-Oriented Left’s Bad Line of Attack Against Judge Gorsuch

The left is going through what the right went through after 2008 – a quasi-“tea party” of sorts – and it is quite the spectacle. After celebrating the election of a hip, progressive-minded President, and hearing things like the country was ostensibly headed towards a permanent democratic majority, it undoubtedly came as quite a shock as […]

Hit & Run – Trump, Liberals, and Separation of Powers

Back in June, I argued “The Contrarian Case for a Trump Presidency.” While it doesn’t really read as a ringing endorsement, I argued that a President Trump was preferable to a President Clinton because executive power was already out of control, and a Clinton Administration would make matters worse in that regard while a Trump Administration […]

The Dangers of Democracy: Human Rights and Majoritarianism

Introduction Last week, on December 15, we celebrated the 225th anniversary of the ratification of the Bill of Rights. While many Americans find good reason to celebrate the first ten amendments to the Constitution, not as many pause to appreciate that it is the amendments’ anti-democratic character that makes them so effective. Democracy, after all, […]

Excerpts from Sen. Sasse’s Speech to the Federalist Society

Senator Ben Sasse delivered an excellent speech at the Federalist Society National Lawyers Convention. Here are some of my favorite quotes.

The Right to Be Let Alone – A Political Hippocratic Oath

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect […]

The Disingenuity of the Anti-Halbig Arguments

One line of attack critics have undertaken in mocking the appellants’ case in Halbig v. Burwell is that – according to the argument – NO ONE up to this point had read the law this way, or noticed that this was in there. Rather, this reading of the law has come about as a bit of hyper-literalism on […]