Search for: "Jonathan H. Adler"
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15 Jan 2022, 11:17 am
[Another contribution to recent scholarship on whether the Nondelegation Doctrine is properly rooted in the Constitution's original meaning and founding era understandings.] The past two years has seen a burst of new scholarship challenging and defending the historical pedigree of the Nondelegation Doctrine. As I noted in this post, several important articles question whether founding era understandings and practice support the existence of a constitutional (and judicially enforceable)… [read post]
29 Nov 2021, 1:24 pm
[The argument made by Finnis, George, Hammer and others, that abortion is unconstitutional is not supported by text or history.] On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which the justices will reconsider the extent to which the Constitution protects a woman's right to terminate her pregnancy. Because the law in question is incompatible with the "undue burden" standard as articulated in Casey and… [read post]
9 Jun 2025, 2:04 pm
[Professor Joel Alicea on how to understand what may be the most important jurisprudential divisions on the Supreme Court. ] Professor Joel Alicea has a thoughtful and perceptive op-ed in the New York Times, "The Supreme Court Is Divided in More Ways Than You'd Think," discussing the issues that divide the Supreme Court's five originalist justices. It begins: When Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court during President… [read post]
24 Mar 2025, 6:33 am
[State Attorneys General appear more interested in lining up with their political tribe than they are in defending state interests.] As of today over 130 lawsuits have been filed against early Trump Administration initiatives and actions. A decent chunk of these suits have been filed by state attorneys general, and state AGs have filed amicus briefs in a great many more. That blue state AGs are suing the Trump Administration with regularity should be no surprise. Red state AGs did much the same… [read post]
29 Jan 2025, 5:38 am
It may have been easy to overlook with all that's going on this week, but on Monday Justice Thomas (joined by Justice Alito) dissented from the denial of certiorari in Davis v. Smith, a case from the U.S. Court of Appeals for the Sixth Circuit in which a divided panel granted a petition for a writ of habeas corpus in an unpublished opinion. As I have noted many times before, the Sixth Circuit has had something of a tradition of being more generous in granting habeas petitions than the… [read post]
23 Nov 2024, 9:45 am
Yesterday, as predicted, the Supreme Court granted certiorari in Federal Communications Commission v. Consumers' Research (consolidated with SHLB Coalition v. Consumers' Research). This case arises out of challenges to the constitutionality of the FCC's Universal Service Fee, and may produce a major administrative law decision–but the Court also gave itself an out. As I noted here, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, concluded that the fee is… [read post]
5 Oct 2024, 3:09 pm
There has been an apparent increase in the rate at which litigants seek–and courts award–nationwide relief against federal regulatory agencies. The Administrative Conference of the United States recently held two panels to examine the impact that such relief has had on federal regulatory programs. The two panels provide useful background and insights about how nationwide relief, including universal vacatur under the Administrative Procedure Act have affected regulatory agencies and what,… [read post]
29 Jul 2024, 8:24 am
[Joan Biskupic reports that the justices were initially inclined to back Idaho in the EMTALA case, until they realized the case was messier than they had thought.] CNN's Joan Biskupic has an inside report on what happened at the Supreme Court behind-the-scenes in Moyle v. United States. The case had presented the question whether EMTALA preempts state laws, such as Idaho's Defense of Life Act, that prohibit abortion. The case was ultimately dismissed as improvidently granted, and the… [read post]
13 Jun 2024, 2:21 pm
[In his AHM v. FDA concurrence, Justice Thomas suggests the Court needs to rethink associational standing and questions whether it comports with Article III.] Today the Supreme Court held unanimously that anti-abortion doctors lack standing to challenge the Food and Drug Administration's decisions to loosen the regulation of mifepristone. Justice Thomas wrote separately to reiterate his opposition to third-party standing and raise questions about the Court's long-standing acceptance of… [read post]
6 Apr 2024, 8:52 pm
[A welcome paper analyzing the practice of en banc review on the federal circuit courts.] When should circuit courts grant en banc review to panel decisions? Is it enough that a majority of judges on the court think that a given three-judge panel was wrong? Or are there some panel decisions that are "wrong, but not en-banc-worthy"? And to what extent should en banc review be used to resolve circuit splits? Notre Dame law professor Randy Kozel has a new paper examining enbanc review. The… [read post]
28 Nov 2023, 8:58 am
[An important challenge to the use of agency adjudication to enforce federal regulations.] Tomorrow the Supreme Court hears oral argument in Securities Exchange Commission v. Jarkesy, a broad challenge to the SEC's authority to use agency adjudication as a means of enforcing the nation's securities laws. This is one of seveal significant adminsitrative law cases before the Court this term, and (despite the arcane subject matter) may be the case that garners the most attention.… [read post]
13 Oct 2023, 11:23 am
[For many, this past weekend's terrorist attacks on people in Israel and the resulting war between Israel and Hamas raises profound questions about the role of the academy in wartime.] In the midst of the Covd-19 pandemic, I had reason to recall C.S. Lewis' sermon, "Learning in Wartime," and I blogged about it. The events of the past week have caused me to revisit the essay and my comments, as they are both quite relevant to our current situation, so I am reposting my comments… [read post]
4 Oct 2023, 6:08 am
[The Solicitor General rejects an academic argument offered in defense of the Consumer Financial Protection Bureau.] Yesterday the Supreme Court heard oral argument in Consumer Financial Protecion Bureau v. Community Financial Services Association of America, a case challenging the constitutionality of the manner in which the CFPB is funded. According to the respondents, the CFPB's funding mechnism violates the Appropriations Clause because the CFPB is funded through the Federal Reserve… [read post]
16 Nov 2025, 7:35 pm
[Judge Willett thinks that some federal statutes have been interpreted and applied in ways that conflict with the notion that the federal government only has limited and enumerated powers.] Arnett Jackson Bonner has multiple felony convictions. This means he cannot possess a firearm. Under 18 U.S.C. § 922(g)(1), convicted felons may not "possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate… [read post]
3 Oct 2018, 7:42 pm
The early returns are not promising.The Trump Administration began with broad deregulatory ambitions. The Administration's first Environmental Protection Agency Administrator, Scott Pruitt, was tasked with undoing the Obama Administration's regulatory handiwork, including the infamous "WOTUS" (waters of the United States) rule and Clean Power Plan. The Trump EPA's early deregulatory efforts have not fared too well, however. In case after case, federal courts have struck down… [read post]
28 Jun 2018, 9:44 am
When an agency adopts a particular statutory interpretation in the course of litigation, should courts care? Agency interpretations adopted for the first time in litigation do not receive Chevron deference unless and until they are adopted or ratified in a more formal manner (such as through informal rulemaking). But does that mean such interpretations should receive no deference at all? Or should they simply receive the less demanding and less controlling form of deference known as Skidmore… [read post]
18 Jun 2018, 6:32 pm
It's not every day that a federal court imposes Continuing Legal Education requirements as a sanction to attorneys in a case, but that is what happened in to Kansas Secretary of State Kris Kobach in Fish v. Kobach. Fish concerned a challenge to provisions of the Kansas Safe and Fair Elections (SAFE) Act, in particular a requirement that individuals provide documentary proof of citizenship ("DPOC") when registering to vote. In an extensive opinion, Judge Julie Robinson concluded… [read post]
11 Jun 2018, 3:44 pm
President Trump and his defenders have sought to undermine the legitimacy of Special Counsel Robert Mueller's investigation at every turn. They have attacked Mueller personally, Mueller's office, Mueller's associates and, most recently the constitutional legitimacy of Mueller's appointment and investigation. The latter argument received a boost when noted constitutional law scholar Steven Calabresi authored a white paper and op-ed alleging that the Special Counsel investigation,… [read post]
29 May 2018, 5:49 am
Last week, as expected, the Supreme Court ruled in Epic Systems v. Lewis that arbitration clauses in employment clauses requiring individualized proceedings are enforceable under the Federal Arbitration Act. In a 5-4 ruling written by Justice Gorsuch, the Court concluded that neither the FAA's savings clause nor the National LAblor Relations Act (as interpreted by the National Labor Relations Board) renders such clauses unenforceable. The outcome in this case was rather predictable because it… [read post]
24 May 2018, 5:00 am
Starting this fall, the U.S. Court of Appeals for the D.C. Circuit will provide livestream audio of almost all oral arguments. A statement released by the court reads: Chief Judge Garland announced today that the Court has voted to live stream audio of all oral arguments, except when classified or sealed matters must be discussed. The Court has been live streaming audio of oral arguments upon request since October 2017. Chief Judge Garland stated that "this is an important additional step in… [read post]
