Category: Constitutional Law

Columns, Congress, Constitutional Law, Courts, Criminal law

The Selective Outrage of Judge James Boasberg

Below is my column in The Hill on two controversies involving Chief Judge James Boasberg this week in Washington, D.C. Both involve claims that branches undermined or intruded on the authority of another branch. However, these separation-of-powers conflicts produced strikingly different responses from Judge Boasberg. It seemed that the court’s concerns depended greatly on whose ox was being gored in a tripartite contest.

Here is the column: Continue reading “The Selective Outrage of Judge James Boasberg” →

Constitutional Law, Courts, Society

The Eleventh Circuit Finds that COVID Beach Closures Constituted Unconstitutional Taking

There is an interesting ruling by the United States Court of Appeals for the Eleventh Circuit on the COVID-19 closures in April 2020. The panel found that the closures of private beaches in Walton County, Florida, constituted a taking under the Fifth Amendment. Continue reading “The Eleventh Circuit Finds that COVID Beach Closures Constituted Unconstitutional Taking” →

Constitutional Law, Courts

Sixth Circuit Issues Major Ruling Striking Down District’s Pronoun Policy

There is a major ruling out of the United States Court of Appeals for the Sixth Circuit on both free speech and student rights. The court, sitting en banc, ruled 10-7 that “the mere use of biological pronouns does not entail ‘aggressive, disruptive action.'” In the lengthy opinion, the court split along political lines with every Republican appointee voting with the student challengers and every Democratic appointee voting with the school district. Continue reading “Sixth Circuit Issues Major Ruling Striking Down District’s Pronoun Policy” →

Columns, Congress, Constitutional Law, Media, Politics

In Vino Veritas: Punch-Drunk Pundits Reveal Plans to Pack the Supreme Court

Below is my column in the Hill on moments of honesty after the recent Democratic victories in California, Virginia, New Jersey, and New York. In the euphoria that followed, Democratic politicians and pundits admitted that they intend to pursue radical changes, including packing the Supreme Court, once they retake power.

Here is the column: Continue reading “In Vino Veritas: Punch-Drunk Pundits Reveal Plans to Pack the Supreme Court” →

Constitutional Law, Supreme Court

Supreme Court Issues Major Opinion on Transgender Identity and the Trump Passport Policy

In a significant win for the Trump Administration, the United States Supreme Court issued an opinion on Thursday afternoon on the Trump Administration’s requirement that passport holders use their sex assigned at birth and that such requirements do not violate equal protection guarantees. While a brief, unsigned opinion issued on the interim docket, it represents a major ruling on the constitutional protections afforded to transgender individuals. Continue reading “Supreme Court Issues Major Opinion on Transgender Identity and the Trump Passport Policy” →

Columns, Congress, Constitutional Law, Supreme Court

The Supreme Court Hears the Trump Tariff Case: Time for Plan B?

The oral argument yesterday on the Trump tariffs was fascinating as justices struggled with the knotty question of whether a president has the sweeping authority claimed by President Donald Trump under the International Emergency Economic Powers Act (IEEPA). The justices were skeptical and uncomfortable with the claim of authority, and the odds still favored the challengers. However, there is a real chance of a fractured decision that could still produce an effective win for the Administration.

Continue reading “The Supreme Court Hears the Trump Tariff Case: Time for Plan B?” →

Congress, Constitutional Law, Courts

No, The House Should Not Impeach Judge Boasberg

This week, Rep. Brandon Gill, R-Texas, formally introduced impeachment articles against U.S. District Chief Judge James Boasberg. It was a popular move with many after a series of controversial orders by Judge Boasberg. I have been highly critical of those orders, particularly the prior orders granting Special Counsel Jack Smith’s demand for the telephone records of Republican members of Congress in the “Arctic Frost” probe. However, I disagree that his order meets the standard for impeachment under the Constitution. Continue reading “No, The House Should Not Impeach Judge Boasberg” →

Columns, Constitutional Law, Criminal law

Illinois Bars ICE Arrests in State Courthouses and Safe Zones
Sanctuary by Richard Burchett

Illinois has now joined California and Connecticut in barring federal immigration agents from conducting “civil arrests” of illegal aliens in or around state courthouses. The sanctuary law appears largely performative since it also appears unconstitutional. It is difficult to see how a state can bar the exercise of federal jurisdiction, at least after the Civil War. Continue reading “Illinois Bars ICE Arrests in State Courthouses and Safe Zones” →

Constitutional Law, Politics

“An Inquisitor Rather Than a Neutral Adjudicator”: Seventh Circuit Slams Judge Over ICE Order in Chicago

The United States Circuit Court of Appeals for the Seventh Circuit yesterday overturned a federal judge’s order requiring Immigration and Customs Enforcement Chief Greg Bovino to give daily immigration enforcement reports. In a stinging order, the panel found that U.S. District Judge Sara Ellis, an Obama appointee, had exceeded her powers and role as a federal judge in ordering the measures. Continue reading ““An Inquisitor Rather Than a Neutral Adjudicator”: Seventh Circuit Slams Judge Over ICE Order in Chicago” →

Constitutional Law, Courts, Politics, Supreme Court

“Race-Based Remedies Should Have an End Point”: Justices Appear Poised to Issue Historic Ruling on the Voting Rights Act

Yesterday, the Supreme Court held the long-awaited argument in Louisiana v. Callais, considering an appeal of Louisiana’s congressional map. The two majority-black districts are being challenged under the 15th Amendment and the Equal Protection Clause of the 14th Amendment as unconstitutionally gerrymandered on the basis of race. The case could result in a rejection of race-based congressional districting under Section 2 of the Voting Rights Act. Continue reading ““Race-Based Remedies Should Have an End Point”: Justices Appear Poised to Issue Historic Ruling on the Voting Rights Act” →

Constitutional Law, Free Speech

Sixth Circuit Rules In Favor of School Ban on “Let’s Go Brandon” Sweatshirts

We previously discussed the case of B.A. v. Tri County Area Schools, where two middle schoolers in Michigan were prevented from wearing “Let’s Go Brandon” sweatshirts. However, a divided panel on the United States Court of Appeals for the Sixth Circuit has ruled that the school district was within its authority to ban the sweatshirts.  The decision, in my view, is wrong, and this could prove a viable case for Supreme Court review, assuming that the plaintiffs will not seek an en banc review. Continue reading “Sixth Circuit Rules In Favor of School Ban on “Let’s Go Brandon” Sweatshirts” →

Constitutional Law, Courts, Supreme Court

Federal Judge Blocks Effort of Transgender Athlete to Dismiss Case Before the Supreme Court

U.S. District Judge David Nye just rejected a last-minute effort to scuttle a Supreme Court case on transgender athletes. The Little v. Hecox lawsuit was initially filed by Lindsay Hecox in 2020, challenging a state law barring the biologically male athlete from joining the women’s cross-country team at Boise State. After winning before the United States Court of Appeals for the Ninth Circuit, the U.S. Supreme Court granted review. Hecox clearly did not like the prospects on appeal and sought to withdraw the case after the granting of certiorari. Judge Nye just denied that effort. Continue reading “Federal Judge Blocks Effort of Transgender Athlete to Dismiss Case Before the Supreme Court” →

Constitutional Law, Media

Media Companies Refuse to Sign New Pentagon Media Rules
1910 Movie “The Girl Reporter”

I previously criticized the new Pentagon policies for media organizations. While the Trump Administration made some changes, the rules remained unduly restrictive and unprecedented. As a result, virtually every news organization, including Fox News, refused to sign the agreements at the deadline — a decision that I strongly support. Continue reading “Media Companies Refuse to Sign New Pentagon Media Rules” →

Constitutional Law, Politics

Second Amendment Showdown: California Bans Glock Handguns in Major Challenge to Gun Rights
Columns, Congress, Constitutional Law

Madison’s Nightmare: Dan Goldman and The Wrong Type of Ambition

Below is my column in the New York Post on how Madison’s famous objective of making “ambition … counteract ambition” in the constitutional system depends on the right type of ambition. Today, some members exhibit an ambition that transcends any institutional or constitutional interests. They act more like social media influencers than constitutional actors. One of the best examples is New York Rep. Dan Goldman, who vividly shows the distinction between partisan and institutional interests in a Madisonian system. Continue reading “Madison’s Nightmare: Dan Goldman and The Wrong Type of Ambition” →

Res ipsa loquitur – The thing itself speaks