Search for: "Jonathan H. Adler"
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18 Jun 2018, 7:29 am
This morning the Supreme Court issued opinions in five argued cases. Chavez-Mesa v. United States, concerning whether a judge provided an adequate explanation for a sentence reduction, split the Court 5-3. What's interesting about the case is the line-up it produced: Justice Breyer wrote for the Court, joined by the Chief Justice and Justices Thomas, Ginsburg, and Alito. Justice Kennedy dissented, joined by Justices Sotomayor and Kagan. Justice Gorsuch was recused. Not only did this case not… [read post]
5 Mar 2018, 2:36 pm
The Supreme Court has not issued too many opinions so far this year, but among the few that have been decided are two with particularly unusual line-ups. Last week, the Court decided Patchak v. Zinke. concerning whether a federal statute directing the dismissal of certain claims against the Department of the Interior violates Article III of the Constitution. "No," is the answer the Court provided, although no opinion commanded a majority of the justices.. Justice Clarence Thomas announced… [read post]
19 Jan 2018, 11:26 am
The current Supreme Court term is almost certain to be a blockbuster (at least it will be once the justices start issuing opinions). By the end of June, the Court is likely to have decided multiple cases on major constitutional issues, ranging from the constitutionality of partisan gerrymandering and SEC administrative law judges to whether the First Amendment prohibits mandatory agency fees for public sector unions and protects a religious baker's refusal to bake a cake for a same-sex wedding.… [read post]
4 Jan 2018, 8:17 am
Several news outlets are reporting that Attorney General Jeff Sessions will rescind the Department of Justice memoranda providing that the federal government would largely eschew enforcement of federal marijuana laws against those acting in compliance with applicable state laws, unless there is a threat of trafficking, diversion, or juvenile access. The move is almost certainly prompted by the decision of California voters to legalize possession and recreational use of marijuana within the state.… [read post]
16 May 2025, 9:21 am
[The agency may be able to adopt a bank-shot strategy to preclude most (but not all) greenhouse gas regulation under the Clean Air Act without contesting basic climate science.] Environmental Protection Agency Administrator Lee Zeldin announced that the agency will consider rescinding the so-called endangerment finding that triggers the regulation of greenhouse gases under the Clean Air Act. In a prior post, I explained why this is a fool's errand, and elaborated on some of the relevant points… [read post]
6 May 2025, 12:25 pm
[An important (and importantly civil) debate on birthright citizenship.] Professor Evan Bernick recently guest blogged here about birthright citizenship, challenging those who have put forward revisionist arguments about the scope and import of the citizenship clause in Section One of the Fourteenth Amendment. Bernick recently debated one of those revisionists, Professor Ilan Wurman, at the recent Federalist Society Third Circuit Chapters Conference. It was a civil and highly substantive debate… [read post]
27 Mar 2025, 11:37 am
[The Court's opinion upholding federal regulation of "ghost guns" makes passing reference to Loper Bright Enterprises.] Yesterday, in Bondi v. VanDerStok, the Supreme Court upheld the federal regulation of so-called "ghost guns. Specifically, the Court upheld a regulation promulgated by the Bureau of Alcohol, Tobacco and Firearms pursuant to the Gun Control Act of 1968 to cover weapon parts kits "designed to or may readily be converted to expel a projectile." The… [read post]
24 Mar 2025, 6:54 am
[Two decisions respecting a denial of certiorari suggest the Court should reconstruct Confrontation Clause jurisprudence.] The Supreme Court did not grant certiorari in any cases this morning, but Justices Alito and Gorsuch both suggested it may be time to grant a case to reconsider aspects of the Court's Confrontation Clause jurisprudence, Justice Scalia's opinion for a unanimous Court in Crawford v. Washington in particular. Both Justices Alito and Gorsuch issued separate opinions… [read post]
13 Jan 2025, 7:52 am
Today the Supreme Court denied certiorari in Sunoco LP v. Honolulu and Shell PLC v. Honolulu, two petitions from oil companies seeking High Court intervention in a state-law-based climate case in Hawaii. Unlike with prior cert denials in climate tort cases, no justice indicated that he or she supported certiorari. On the one hand, this cert denial should not be surprising because, as I have explained, the legal arguments for federal court intervention in these cases is exceedingly weak.… [read post]
11 Dec 2024, 2:53 pm
Ohio Rep. Josh Williams is proposing a new law to make planting a flag at midfield after winning a football game a felony in the state of Ohio. The bill appears to have been inspired by the tussles between Ohio State and University of Michigan players after their most recent game, which Michigan won and at which a Michigan player sought to plant a Michigan flag on the OSU field. From the ESPN report: Ohio state Rep. Josh Williams introduced a bill Tuesday that would classify flag planting at Ohio… [read post]
13 Nov 2024, 11:22 am
In yesterday's Orders List, the Supreme Court denied the petition for a write of mandamus in In re Kelsey Juliana, a last ditch attempt to revive the so-called "Kids Climate" case. At long last, this audacious effort to claim that the federal government is violating the constitution by failing to take more action to address climate change may be put to rest. As I noted when the petition was filed, there was no chance the Supreme Court would act on this request, a point on which… [read post]
10 Nov 2024, 4:57 pm
In October 2023, Judge Algenon Marbley of the Southern District of Ohio announced his intention to assume senior status upon the confirmation of his successor. The White House never nominated someone to fill Marbley's seat, however. Senators Sherrod Brown and J.D. Vance could not agree on a suitable replacement, so no pick was named. Last week, Judge Marbley informed the White House of a change of plans. Judge Marbley no longer intends to take senior status, presumably because he does not want… [read post]
16 Jun 2024, 8:02 am
[A Harvard Dean suggests universities can and should limit controversial speech.] Professor Lawrence Bobo, Dean of Social Science and the W. E. B. Du Bois Professor of the Social Sciences at Harvard University, has an article in the Harvard Crimson on the proper limits of faculty speech that has to be read to be believed. He writes: Is it outside the bounds of acceptable professional conduct for a faculty member to excoriate University leadership, faculty, staff, or students with the intent to… [read post]
9 May 2024, 3:59 pm
[In an interesting dissent, Judge Allison Eid argues it violates existing nondelegation doctrine precedent.] In Bradford v. U.S. Department of Labor, a divided panel of the U.S. Court of Appeals for the Tenth Circuit rejected a challenge to a Labor Department rule requiring federal contractors, including some permittees, to pay their workers a $15 per hour minimum wage. The majority concluded that this requirement was authorized by the Federal Property and Administrative Services Act (FPASA,… [read post]
5 Mar 2024, 6:19 am
[There are reasons to suspect the justices were wrangling over language up until the last minute.] All nine justices were able to agree on a bottom-line result in Trump v. Anderson: States cannot disqualify candidates for federal offices from the ballot under Section 3. But they were not in agreement on what the decision should say. I suspect that they were wrangling over the language of the per curiam and other opinions until the last minute as they rushed to issue an opinion in advance of… [read post]
11 Dec 2023, 7:56 am
[Justice Jackson notes her objection to the Court's standard practice of vacating lower court decisions rendered moot by the prevailing party below.] Last week, when the Supreme Court dismissed Acheson Hotels v. Laufer on mootness grounds, Justice Jackson wrote separately to note her objection to the Court's established practice under United States v. Munsingwear of vacating the decision below when a case has been rendered moot due to the unilateral action of the prevailing party. In… [read post]
28 Aug 2023, 3:59 am
[Court finds parent's right to comment on their interactions with their child's coaches or teachers is cleartly established.] Qualified immunity is not reserved for police officers. Other government officials invoke QI as well. A reasonable number of QI cases actually arise in the educational context. A recent example is McElhaney v. Williams from the U.S. Court of Appeals for the Sixth CIrcuit, in which school officials allegedly retaliated against a parent who criticized his… [read post]
17 Jul 2023, 1:26 pm
[The Mountain Valley Pipeline's developers seek Supreme Court intervention to prevent the U.S. Court of Appeals for the Fourth CIrcuit from delaying its completion.] After years of legal and political wrangling, it appeared the Mountain Valley Pipeline was nearing completion. fewer than four miles of the 300-plus-mile project remain to be completed and Congress endorsed the pipeline's completion. Section 324 of the Fiscal Responsibility Act of 2023 expressly called for the approval of all… [read post]
23 Jul 2025, 3:14 pm
[Further indication that independent agencies will not be "independent" much longer.] Today the Supreme Court stayed a district court order barring President Trump from removing the three Democratic members of the Consumer Product Safety Commission. The Court's order is not particularly surprising given its prior order staying a similar injunction barring the removal of other appointees to independent agencies. The three justices appointed by Democratic Presidents dissented. As… [read post]
11 Jun 2025, 9:01 am
[The Pacific Legal Foundation and Catholic University Law Review are co-sponsoring a symposium on environmental law's constitutional constraints;] The Pacific Legal Foundation and Catholic University Law Review have posted a call for papers for a symposium on "Searching for Constitutional Limits on Environmental and Natural Resources Law." Here is the write-up: Even in its most flattering light, the modern administrative state coexists uneasily with the core constitutional… [read post]
