Search for: "Jonathan H. Adler"
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23 Jan 2025, 6:18 pm
During the first Trump Administration, some of the President's supporters urged him to embrace the view that the Fourteenth Amendment does not require recognition of birthright citizenship to those born in the United States to parents who were not legal residents. As I noted at the time, some of the most thorough and comprehensive arguments to the contrary could be found in the work of Judge James Ho, who wrote several op-eds and a short law review article on the question before becoming a… [read post]
1 Jan 2025, 6:57 pm
In the closing days of the Presidential campaign, Robert F. Kennedy Jr. announced that "the Trump White House will advise all U.S. water systems to remove fluoride from public water." Multiple news reports pounced on the statement as another example of RFK Jr's fringe and potentially dangerous views about public health. Often unmentioned in these news stories is that the next Secretary of Health and Human Services' views on fluoridation will likely matter less than the… [read post]
12 Dec 2024, 11:30 am
The new "Department of Government Efficiency" (aka "DOGE"), led by Elon Musk and Vivek Ramaswamy, aims to downsize the federal government and tame the federal bureaucracy. DOGE (which is not actually a government department) is seeking help identifying regulations that should be rescinded or repealed. As detailed in a Wall Street Journal op-ed, they aim to achieve these goals through presidential directives, not legislation. I am skeptical DOGE can fulfill its ambitious… [read post]
11 Dec 2024, 7:01 pm
This morning the Supreme Court dismissed NVIDIA v. E. Ohman J:or Fonder AB as improvidently granted. This was the Supreme Court's second DIG of the term. Indeed, it was the Court's second DIG in a securities fraud case. Two weeks ago, the justices DIGged Facebook v. Amalgamated Bank. For those keeping track, here are the questions presented that the Court will no longer resolve this term. The Private Securities Litigation Reform Act (PSLRA) imposes "[e]xacting pleading… [read post]
23 Nov 2024, 9:03 am
Yesterday we got the Supreme Court's first decision in an argued case for this term—well, kinda. The Supreme Court dismissed the writ of certiorari in Facebook v. Amalgamated Bank as improvidently granted. This is what is referred to as a DIG. For those interested, here is the (lengthy) question presented statement from the petition for certiorari. This petition presents two important questions that have divided the federal courts of appeals. First, the circuits have split three ways… [read post]
3 Jul 2024, 9:08 am
[A thoughtful, sober take on Trump v. United States.] Over at the Lawfare Blog, Jack Goldsmith offers some initial thoughts on the Supreme Court's decision in Trump v. United States. As with just-about everything Goldsmith writes on executive power and executive branch accountability, it is worth a read. [Readers may also recall that Goldsmith was one of the first to explain why the Supreme Court should review the D.C. Circuit's decision rejecting any claim of presidential immunity.]… [read post]
7 Apr 2024, 8:12 am
[Did the Alabama legislature's response to a controversial state supreme court decision give a special interest special treatment?] Policy change is often the result of disparate political coalitions. Not all who support a change necessarily support that change for the same reason. Sometimes, political support for legislative change is the result of a "baptists and bootleggers" coalition–a coalition of those who support the change on normative grounds and those who hope to make… [read post]
24 Nov 2025, 7:25 am
[Could today's summary reversal be a sign of things to come?] There was a time when the U.S. Court of Appeals for the Ninth Circuit was notorious for issuing decisions at odds with existing Supreme Court precedent, and getting repeatedly overturned as a result. The Ninth Circuit was considered the most liberal circuit in the country at the time, and had a few judges who consciously sought to evade restrictive precedent. Early in the Roberts Court, the U.S. Court of Appeals for the Sixth Circuit… [read post]
13 Nov 2018, 2:20 pm
President Trump announces a superlative pick for to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. CircuitThe Senate's confirmation of Brett Kavanaugh to the U.S. Supreme Court created a vacancy on the U.S. Court of Appeals for the D.C. Circuit, the court often characterized as the "second-highest" court in the land. Today, President Trump announced his intention to nominate Neomi Rao to fill this vacancy. This is an excellent choice. Rao currently serves as the… [read post]
17 Aug 2018, 11:13 am
For the second time this week, a federal court has rejected the EPA's effort to delay an Obama Administration rule.Today, in Air Alliance Houston v. EPA, the U.S. Court of Appeals for the D.C. Circuit rejected the Trump Administration's attempt to delay the effective date of an Obama Administration rule. Specifically, the court held that the EPA's effort was both contrary to its statutory authority and arbitrary and capricious. This is the second time this week a federal court has… [read post]
16 Jul 2018, 3:31 pm
Judge Brett Kavanaugh has spent the past welve years as a judge on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court that hears the lion's share of legal challenges to major federal regulations. Of Judge Kavanaugh's nearly 300 opinions, over 100 concern questions of administrative law. Given this experience, should he be confirmed, Judge Kavanaugh would likely become one of the more influential voices on the Supreme Court of questions of administrative law. In a… [read post]
11 Jul 2018, 12:47 pm
In October 2013, Judge Brett Kavanaugh delivered the Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law. In these remarks, which focused on the distinct nature and role of the D.C. Circuit and touched on broader questions of administrative law, Judge Kavanaugh reflected on the judicial confirmation process. Here's a taste: I think something is wrong in not just the confirmation process for our court but for lower courts more generally. A nominee's… [read post]
11 Mar 2018, 7:52 pm
In recent weeks there have been several controversies on university campuses over professors' use of offensive langauge in class. Princeton University professor Keith Whittington, author of the forthcoming book, Speak Freely: Why Universities Must Defend Free Speech, addresses these controversies in a post at "Academe," the blog of the American Association of University Professors (AAUP). Here's a taste: If professors are to lead students on intensive investigations of the… [read post]
2 Jan 2018, 7:33 pm
This Friday the Supreme Court will consider adding additional cases to what is already a loaded term. Among the cases the justices will consider is Raymond J. Lucia Co. v. Securities & Exchange Commission, a constitutional challenge to the manner in which the SEC has traditionally appointed its Administrative Law Judges. Lucia is the sort of case us Administrative Law nerds dream about. The prescise issue is whether SEC ALJs are "officers" under the Constitution (albeit "inferior… [read post]
19 Jan 2026, 7:26 am
[Great Moments in Twenty-First Century International Diplomacy] President Donald Trump apparently sent the following letter to prime minister Jonas Gahr Støre of Norway: Dear Jonas: Considering your Country decided not to give me the Nobel Peace Prize for having stopped 8 Wars PLUS, I no longer feel an obligation to think purely of Peace, although it will always be predominant, but can now think about what is good and proper for the United States of America. Denmark cannot protect that land… [read post]
9 May 2025, 6:32 pm
[How the phrase ended up in an opinion after it had been omitted.] The phrase "Homer nodded" appears four times in the U.S. Reports. The first time was in Justice Douglas' concurrence in Brandenburg v. Ohio (1969) (quoting Judge Learned Hand as it happens). The phrase would not appear in another Supreme Court decision until 1992's Lee v. Weisman, when Justice Souter included it in a footnote. Yet as Mark Tushnet recounts on Balkinization, while the phrase had been… [read post]
11 Apr 2025, 6:45 am
[A simple and quite symbolic presidential decree that symbolizes quite a bit, but accomplishes very little.] President Trump issued a flurry of additional executive orders and presidential memoranda this week, many of which concerned regulatory policy. One EO in particular, "Maintaining Acceptable Water Pressure in Showerheads," symbolizes much of what we are seeing from the early stages of Trump's second term. The EO sends a message, but might not quite do what the President wants or… [read post]
19 Mar 2025, 11:51 am
[The D. C. Circuit concludes that software cannot be the author of a work for copyright purposes.] The U.S. Court of Appeals for the D.C. Circuit waded into the question of whether software or A.I. can qualify as an author for copyright purposes. In Thaler v. Perlmutter, a unanimous panel concluded that such non-human entities cannot be authors. Judge Millett wrote for the panel, joined by Judge Wilkins and Senior Judge Rogers. Here is her summary of the case and decision: This case presents a… [read post]
11 Oct 2024, 10:59 am
Under the Magnuson-Stevens Act, Regional Fishery Management Councils are tasked with developing and revising fishery management plans to help ensure that offshore fisheries are utilized sustainably. A council's proposals are subject to approval and revision by the Secretary of Commerce, but councils retain the ability to block or veto certain actions by the Secretary. Council members are appointed by the Secretary of Commerce. After the Mid-Atlantic Council adopted a plan lowing the catch… [read post]
11 Oct 2024, 7:36 am
On May 9, 2001, President George W. Bush nominated Miguel Estrada to the U.S. Court of Appeals to the D.C. Circuit. If confirmed, Estrada would have been the first Latino to serve on this court, but it was not to be. At the time of Estrada's nomination, the Senate was split 50-50, leaving Vice President Dick Cheney as the tie-breaking vote. A few weeks later, Senator James Jeffords switched his party affiliation, handing Senate control to the Democrats, who refused to act on Estrada's… [read post]
