Search for: "Jonathan H. Adler"
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13 Jan 2025, 7:23 am
As I noted on Friday, the Supreme Court accepted certiorari to hear an appointments clause challenge to the U.S. Preventive Services Task Force in Becerra v. Braidwood Management. This task force is the entity that determines which preventative treatments must be covered by health insurance without requiring any co-payment by the insured under the Affordable Care Act. The U.S. Court of Appeals for the Fifth Circuit had concluded that its structure is unconstitutional. The Court did not take any… [read post]
13 Nov 2024, 11:41 am
Yesterday, the Supreme Court denied certiorari in two cases, G-Max Management v. New York and Building and Realty Institute of Westchester and Putnam Counties, Inc. v. New York, that sought to challenge the constitutionality of New York's rent stabilization laws, primarily on Fifth Amendment Takings Clause grounds. The Roberts Court has been quite sympathetic to Takings Clause claims, but has also largely avoided taking case that asked the Court to make dramatic changes in existing… [read post]
19 Oct 2024, 5:16 am
Another interesting tidbit from the oral argument in Royal Camin USA v. Wullschleger concerned what weight the Court should give unanimity on a question among the lower courts of appeals. (In this case, the lower courts of appeals have treated the post-removal amendment of a complaint in one way, but there is an argument the relevant statutory requires a different result.) In the exchange, Justice Kagan suggests she is not a fan of INS v. Chadha (the decision in which the Court held that a… [read post]
19 Oct 2024, 4:53 am
Catching up on Supreme Court oral arguments, I was struck by the following exchange in Royal Canin U.S.A. v. Wullschleger (a case about the effects of post-removal amendments to a complaint) in which Justice Sotomayor suggested that some lower court judges are taking their cues from dicta in Supreme Court opinions. From the transcript: JUSTICE ALITO: Well, do you think that—that courts of appeals read our decisions differently than we may? I mean, you know, I'm—I was on a court… [read post]
25 Sep 2024, 11:49 am
[New guidance makes explicit what should have been clear already: Standard 208 obligates law schools to embrace First Amendment principles.] Last February, the American Bar Association adopted a new accreditation standard on academic freedom and freedom of expression: Standard 208. Under this standard, all law schools are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free speech and open inquiry at… [read post]
24 Aug 2024, 6:41 am
[It can make up fake movie review quotes too.] Linosgate pulled a trailer for the forthcoming Francis Ford Coppola movie, Megalopolis, this week. The trailer, which meant to show that some of Coppola's most well-regarded works were not always appreciated by movie critics at the time, contained multiple fabricated quotes. Where did the fabricated quotes come from? Variety reports they were AI generated. Sources tell Variety it was not Lionsgate or Egan's intention to fabricate… [read post]
1 Aug 2024, 5:15 pm
[A three-judge panel concludes the rule's challenger are likely to succeed on the merits.] Today a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers' request for a stay of the Federal Communications Commission's rule that would classify broadband internet providers as common carriers under the Communications Act, often referred to as "net neutrality." According to the panel, the broadband providers were likely to succeed on the… [read post]
31 May 2024, 9:28 am
[Does the National Labor Relations Board have jurisdiction over a medical marijuana dispensary's treatment of its employees?] Today the U.S. Court of Appeals for the D.C. Circuit decided a case concerning the allegation of unfair labor practices at Curaleaf Arizona, a medical marijuana dispensary. In Absolute Healthcare v. NLRB, the court granted Curaleaf's petition challenging some NLRB findings that the company had committed unfair labor practices under the National Labor Relations… [read post]
1 May 2024, 1:21 pm
[A unanimous panel orders dismissal of Juliana v. United States, bringing this zombie litigation to a close.] Today a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit granted the U.S. Department of Justice's petition for a writ of mandamus seeking dismissal of Juliana v. United States, the so-called "Kids Climate Case." The brief order was short and direct. It noted that the Ninth Circuit had previously concluded that the plaintiffs lacked standing and ordered… [read post]
8 Apr 2024, 2:14 pm
[The research the FDA relies upon to claim banning menthol cigarettes would improve public health is not aligned with the agency's approach to tobacco regulation.] The U.S. Food & Drug Administration is considering whether to ban menthol-flavored cigarettes. The agency first proposed a ban in 2022, but it has yet to finalize the proposal, prompting some activist groups to sue. (Query whether these groups have standing.) The FDA and those groups calling for a ban on menthol cigarettes claim… [read post]
29 Jan 2024, 3:42 pm
[Perhaps Governor Abbott will flout a directive from the Supreme Court in a future case, but reports of Texas "defying" the Supreme Court are bunk, and many making such claims should know better.] There is quite a bit of hyperbole about immigration policy and the southern border these days. To take one prominent example, Texas Governor Greg Abbott suggests there is an "invasion" of illegal immigrants that justifies state action under the Constitution. As a constitutional matter,… [read post]
6 Oct 2023, 3:42 pm
[Congress made a small addition to the requirements for notice-and-comment rulemaking.] With little attention, let alone fanfare, Congress made a small change to the Administative Procedure Act when it unanimously enacted the Providing Accountability through Transparency Act of 2023 in July of this year. The little bill inserted an additional requitement for notice-and-comment rulemakings in Section 553(b) of the Act. Specifically, it provides that the general notice of proposed rulemaking must… [read post]
3 Dec 2025, 2:44 pm
[The progressive advocacy group thinks voting for any Trump judicial nominees is inexcusable.] The New York Times reports that Demand Justice, a progressive activist group that has previously called for Democrats to expand the size of the Supreme Court, will be running ads against Democratic Senators who have voted in favor of some Trump judicial nominees. The ads, part of an initial $1 million campaign which will begin to air on television and appear online on Wednesday, make the case… [read post]
8 Nov 2025, 1:37 pm
[A heavily reported expose on one of the nation's environmentalist organizations in the New York Times] The Sierra Club is one of the oldest and most well-known environmental organizations in the country. It was founded in 1892 and became a powerful political force contemporary environmental politics. In recent years, however, the Sierra Club has been losing members, money, and support. A major reason for this is that the Club, like many progressive non-profits, sought to embrace a broader… [read post]
26 Jul 2018, 7:26 pm
House Republicans seeking to impeach Rod Rosenstein embarrass themselves.On Wednesday, a handful of House Republicans introduced a resolution to impeach Deputy Attorney Genral Rod Rosenstein. It is a piece of work. Harvard law professor Jack Goldsmith, former head of the Department of Justice Office of Legal Counsel, took the resolution apart in the Weekly Standard. "The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein… [read post]
30 Apr 2018, 8:42 am
The Administrative Procedure Act (APA) creates a presumption in favor of judicial review of agency action. Yet in order for an agency action to be subject to judicial review it must be "final," and what constitutes a "final agency action" for APA purposes can be a surprisingly difficult question. The prevailing test for what constitutes "final agency action" was articulated in Bennett v. Spear. Under Bennett, for an agency action to be "final" for purposes of… [read post]
23 Dec 2025, 5:53 am
[A new study further undermines revisionist claims about birthright citizenship under the Fourteenth Amendment, noting a dog that did not bark.] One of President Trump's first actions in his second term was an Executive Order purporting to limit birthright citizenship to the children of citizens and permanent residents. The Supreme Court will consider the lawfulness of this order in case to be heard this spring. Section One of the Fourteenth Amendment provides: All persons born or naturalized… [read post]
23 Oct 2018, 4:29 am
What more could you want from a sentencing guideline decision out of a U.S. Court of Appeals?Yesterday, in United States v. Havis, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected Jeffrey Havis' challenge to his criminal sentence. Havis objected to the District Court's conclusion that his base sentence for being a felon in possession of a firearm should be increased due to a twenty-year-old conviction for delivering cocaine. A majority of the panel, in an opinion… [read post]
12 Aug 2018, 11:11 am
The justices show little interest in deferring to agency interpretations.The Chevron doctrine has been controversial since its inception. In 1986, then-Judge Breyer criticized Chevron deference as an unwise "abdication of judicial responsibility." More recently, then-Judge Neil Gorsuch characterized Chevron as "a judge-made doctrine for the abdication of the judicial duty." With such views on the Surpeme Court, is Chevron deference at risk? Last term, the Supreme Court addressed… [read post]
21 Jun 2018, 7:58 am
The Supreme Court handed down decisions in four argued cases today, including long-awaited decisions in cases concerning whether states may tax out-of-state retailers and the constitutionality of Administrative Law Judges at the Securities & Exchange Commission. In South Dakota v. Wayfair, the Court concluded 5-4 that the Dormant Commerce Clause does not bar states from taxing out-of-state retailers that sell products to those within the state. In doing so, the Court overturned two long-standing… [read post]
