Category: Constitutional Law

Columns, Congress, Constitutional Law, Media, Politics

“Taking Away Everything We Have”: Democrats and Unions Launch an Existential Fight Over Buyouts

Below is a slightly modified version of my column in USA Today on the apoplectic response of Washington to the efforts of President Donald Trump and Elon Musk to reduce the size of government. Democrats have declared the effort to be pure “evil” and responded with rage rhetoric and profanity in public demonstrations. In a town with only one industry, reducing government is a sacrilegious act. It is one thing to run on reducing government and quite another thing to actually mean it. However, the deferred buyout shows how both members and unions are working against not only constitutional powers, but the desire of the employees themselves.

Here is the column: Continue reading ““Taking Away Everything We Have”: Democrats and Unions Launch an Existential Fight Over Buyouts” →

Columns, Congress, Constitutional Law, Media, Politics

Democrats Jump the Shark: The Latest Claims of a Constitutional Crisis Will Not Lead to “Happier Days”

Below is my column in the New York Post on the growing claim of a “constitutional crisis” over the Trump reforms. It is the latest political jump scare to see if it will rouse the public. It seems, again, to be backfiring as polling shows Trump with record approval levels and widespread support for reducing government.

Here is the column: Continue reading “Democrats Jump the Shark: The Latest Claims of a Constitutional Crisis Will Not Lead to “Happier Days”” →

Constitutional Law, Supreme Court

The Pushmi-Pullyu: The Administration Renounces and Retains the Biden Challenge to Gender-Transitioning Law

The Trump administration made an interesting pivot on Friday in the major case on gender-transitioning legislation. The case involving the Tennessee ban on the use of puberty blockers and hormone therapy for transgender minors is expected to establish new and significant precedent in the area.  The oral argument appeared to favor the state. The problem is that, if the Trump Administration were to withdraw its challenge, it would work against the interests of Tennessee and other states in seeking a final resolution before the Court. Accordingly, the Trump Administration created a type of Pushmi-Pullyu position: it renounced the Biden position and then retained the challenge by encouraging the Court to move forward with a final decision. Continue reading “The Pushmi-Pullyu: The Administration Renounces and Retains the Biden Challenge to Gender-Transitioning Law” →

Constitutional Law, Politics, Religion

A Ministerial Miranda? Washington State Democrats Target Priests in Latest Attack on Religion

Washington Democrats are adding a fifth stage for confessions under a new law.  If passed, examination, confession, absolution, and penance will be followed by arrest. The blatantly unconstitutional legislation would target priests who learn of any “reasonable” basis to believe that a child “has suffered abuse or neglect.” Putting aside the obvious violation of the sanctity of the confessional, it presents a novel problem for priests if they both encourage the faithful to unburden themselves while at the same time reminding them anything that they say can and will be used against them in a court of law. Continue reading “A Ministerial Miranda? Washington State Democrats Target Priests in Latest Attack on Religion” →

Columns, Constitutional Law, Politics, Supreme Court

Spoiling for a Fight: Why Challenging Birthright Citizenship May Be a Win-Win Strategy for Trump

Below is my column in the Hill on the move of the Trump Administration against birthright citizenship. The Trump Administration believes that this is a fight worth either winning or even losing in the courts. Roughly half of the country oppose birthright citizenship. The key is where those voters are coming from. The minority of voters supporting the right are overwhelmingly coming from the Democratic core that opposed Trump in the last election. In other words, it is an issue appealing to the very margin voters that will be needed in the midterm election. That makes this a perfect wedge issue either as a court fight or, if unsuccessful, a fight for a constitutional amendment.

Here is the column: Continue reading “Spoiling for a Fight: Why Challenging Birthright Citizenship May Be a Win-Win Strategy for Trump” →

Constitutional Law

Fifth Circuit Declares Federal Age Limits on Adult Gun Ownership Unconstitutional

The United States Court of Appeals for the Fifth Circuit has issued a major ruling on the Second Amendment, declaring that federal prohibitions on gun sales to adults between the ages of 18-20 are unconstitutional. The case is Reese v. ATF. For gun rights advocates, it may have been better if this decision had been handed down during the Biden Administration. The Trump Administration will likely support the ruling and might not appeal to the Supreme Court.

Continue reading “Fifth Circuit Declares Federal Age Limits on Adult Gun Ownership Unconstitutional” →

Constitutional Law

“Center of the Action”: Bally’s Chicago Casino Sued for Discrimination Against White Investors

After the blockbuster ruling of the Supreme Court finally barring the use of race in college admissions, much of the attention has shifted to the use of racial quotas and set asides by corporations. One such case is developing in Chicago where Bally’s Casino is being sued for barring white investors to meet a 25 percent minority ownership commitment with the city. The lawsuit could make Bally’s slogan come true as “the Center of the Action” on the new round of affirmative action cases. Continue reading ““Center of the Action”: Bally’s Chicago Casino Sued for Discrimination Against White Investors” →

Constitutional Law, Supreme Court

Barrett-Lite: The Supreme Court Takes Up Major New Religion Clause Case With One Notable Exception

On Friday, the Supreme Court agreed to review a potentially blockbuster religion clause case in Oklahoma Charter School Board v. Drummond. However, there is a catch. While the lawyers representing St. Isidore of Seville Catholic Virtual School may need every vote they can get in this heavily contested area, they may have to prevail without Justice Amy Coney Barrett who recused herself for an unstated reason. Continue reading “Barrett-Lite: The Supreme Court Takes Up Major New Religion Clause Case With One Notable Exception” →

Constitutional Law, Criminal law

Hemphill and the Curious Pardon Precedent of the Supreme Court

As promised during the campaign, President Donald Trump pardoned most of the rioters from January 6th soon after taking office. The scope of the pardon was greater than expected. Indeed, many of us opposed the inclusion of those who were convicted of violent crimes against police officers. However, one recipient quickly stood out in the group for her refusal to accept the pardon: Pamela Hemphill. The right to refuse a pardon is found not in the Constitution but in a curious line of case law treating the executive action as an offer requiring acceptance. Continue reading “Hemphill and the Curious Pardon Precedent of the Supreme Court” →

Academia, Congress, Constitutional Law

Biden Again Summons His “Leading Legal Constitutional Scholars” to Support an Absurd Constitutional Claim

In his final week as president, Joe Biden again invoked liberal professors to justify a plainly absurd constitutional argument by declaring that the 28th Amendment is now ratified. By invoking “leading legal constitutional scholars,” Biden only added redundancy to absurdity in claiming that the Equal Rights Amendment is now law. Unfortunately, this pattern has been all too familiar throughout his presidency and only highlights his contempt for constitutional order. Continue reading “Biden Again Summons His “Leading Legal Constitutional Scholars” to Support an Absurd Constitutional Claim” →

Academia, Columns, Constitutional Law

I See Dead Amendments: President Biden Issues Otherworldly ERA Declaration

Below is my column in Fox.com on President Joe Biden’s last-minute declaration that the 28th Amendment is now part of the United States Constitution. It appears that our president sees dead amendments, but that is not the greatest thing that should worry you.

Here is the column: Continue reading “I See Dead Amendments: President Biden Issues Otherworldly ERA Declaration” →

Constitutional Law, Free Speech

New Hampshire Supreme Court Rejects Hate Speech Enforcement

The New Hampshire Supreme Court just handed down a victory for free speech in Attorney General v. Hood. As is often the case, defending free speech means supporting viewpoints that most of us find grotesque and hateful. However, the justices rejected the position of the Portsmouth Police Department that it could force the removal of a racist banner from an overpass. Such signs and flags are commonly allowed, but the police and prosecutors insisted that racist messages “interfered with the rights” of other citizens. Continue reading “New Hampshire Supreme Court Rejects Hate Speech Enforcement” →

Congress, Constitutional Law, Environment

Sue, Baby, Sue: Trump Plan to “Un-Ban” the Biden Drilling Order Could Prove Difficult

Oil Drilling FacilityAfter a presidential campaign where both President Joe Biden and Vice President Kamala Harris pushed back on claims that they were trying to shut down much of the fossil fuel industry, Biden waited until the final days of his administration to ban oil and gas drilling over 670 million acres of America’s coastline. President-elect Donald Trump responded that“It’s ridiculous. I’ll un-ban it immediately. I have the right to un-ban it immediately.” It will likely be more difficult than a simple “un-ban” order. Environmental groups will likely push a “sue, baby, sue” campaign to counter Trump’s “drill, baby, drill.”

Continue reading “Sue, Baby, Sue: Trump Plan to “Un-Ban” the Biden Drilling Order Could Prove Difficult” →

Constitutional Law, Courts, Free Speech, Religion

Farrakhan and Nation of Islam Lose Major Defamation Case

There is an interesting defamation case out of New York in which the Second Circuit upheld the dismissal of the lawsuit by Louis Farrakhan and the Nation of Islam (NOI) against the Anti-Defamation League (“ADL”) and individual defendants Jonathan Greenblatt, the Simon Wiesenthal Center, and Rabbi Abraham Cooper. Not only did the court reject the claim that canceled speeches resulted from alleged defamatory statements, but it also noted that the statements about NOI are protected opinions. Continue reading “Farrakhan and Nation of Islam Lose Major Defamation Case” →

Congress, Constitutional Law, Media, Politics

“Does the Gentlelady Have a Problem?” : Yes, Delegate Plaskett Most Certainly Has a Problem

“This body and this nation has [sic] a territories and a colonies problem.” Those words from Del. Stacey Plaskett echoed in the House chamber this week as the delegate interrupted the election of the House speaker to demand a vote for herself and the representatives of other non-states. The problem, however, is not with the House but with Plaskett and other members in demanding the violation of Article I of the Constitution. Continue reading ““Does the Gentlelady Have a Problem?” : Yes, Delegate Plaskett Most Certainly Has a Problem” →