Category: Constitutional Law

Constitutional Law, Free Speech, International

Britain Moves to Curtail Jury Trials and Free Speech

Below is my column in The Wall Street Journal on the move to sharply curtail the use of jury trials in Great Britain. The ill-conceived move is the work of Secretary of State for Justice and Lord Chancellor David Lammy, who previously denounced the idea as an abandonment of British values and the loss of a critical protection for citizens. It is a tragic variation on Winston Churchill’s legendary observation about the fleeting virtue of the insufferably sanctimonious. Like the socialite who was indignant when Churchill puckishly offered a small amount of money to sleep with him, it turns out that Lammy was “just haggling over price.” When faced with significant savings, Lammy is willing to toss aside the right that once defined them as a people.

Continue reading “Britain Moves to Curtail Jury Trials and Free Speech” →

Constitutional Law, Free Speech, Torts

Border Tsar Homan Announces Investigation into Rep. Omar: A Case for Fraud or Defamation?

This week, the lingering allegations over the marital history of Rep. Ilhan Omar (D., Minn.) took an ominous step when Border Tsar Tom Homan publicly acknowledged that the government is looking into the matter. Rep. Omar has long denied that she married her brother to gain his entry into the United States, but the allegation has continued to rage on the Internet and among her critics. The question is whether this is a substantive case of fraud or defamation. Continue reading “Border Tsar Homan Announces Investigation into Rep. Omar: A Case for Fraud or Defamation?” →

Congress, Constitutional Law

Impeachment Articles Filed Against Robert F. Kennedy Jr.
Constitutional Law, Supreme Court

Humphrey’s Estate and Jackson’s Experts: Justice Offers Surprising View of the Separation of Powers

As I discussed in yesterday’s coverage of the oral arguments in Trump v. Slaughter, the argument went poorly for those who sought to sustain the 90-year-old precedent in Humphrey’s Executor, limiting a president’s power to fire members of independent commissions. It seems unlikely that Humphrey’s Executor will live to see 91 after Chief Justice John Roberts called it “just a dried husk.”

As is increasingly becoming the case, Justice Ketanji Brown Jackson stole the show with some of her comments on her view of the underlying constitutional issues. She suggested that “experts” in the Executive Branch generally should not be subject to termination by a president. It is a virtual invitation for a technocracy rather than a democracy. Continue reading “Humphrey’s Estate and Jackson’s Experts: Justice Offers Surprising View of the Separation of Powers” →

Congress, Constitutional Law, Politics

“An Impeachable Moment”: Impeachment Mania Returns in Time for the Midterm Elections

The military has long had a saying that “when you only have a hammer, every problem looks like a nail.” When it comes to impeachment power, Democrats have long acted as if every problem is a high crime and misdemeanor. After two impeachments against President Donald Trump (including what I labeled as an infamous “snap impeachment“), Democratic politicians and pundits are back calling for the impeachment of President Trump and Secretary of Defense Pete Hegseth. Continue reading ““An Impeachable Moment”: Impeachment Mania Returns in Time for the Midterm Elections” →

Congress, Constitutional Law, Courts, Politics

Boston Judge (Again) Intervenes to Force Payments to Planned Parenthood

District Court Judge Indira Talwani in Boston has been one of the most active judges in the country in seeking to enjoin the orders of President Donald Trump, including her orders to prevent deportations under previously “paroled” immigrants under the Biden Administration. She previously sought to enjoin the denial of federal funds to Planned Parenthood, an order that the United States Court of Appeals lifted for the First Circuit pending appeal. Now, Judge Talwani is back with a new basis for forcing payments to Planned Parenthood despite Congress barring Medicaid funds under the Big Beautiful Bill.

Continue reading “Boston Judge (Again) Intervenes to Force Payments to Planned Parenthood” →

Constitutional Law, Politics, Supreme Court

Welcome to Hotel California: Democrats Push Retroactive Billionaire Tax
California was once known as the destination for anyone seeking a fortune, from the Gold Rush to Hollywood. The image of a line of wagon trains heading West has now been replaced by a line of U-Hauls heading anywhere but California. Unable to stem the exodus, California is again toying with retroactive taxes — targeting the wealthy regardless of whether they flee the state. Welcome to Hotel California, “you can check out any time you like, but you can never leave.” Continue reading “Welcome to Hotel California: Democrats Push Retroactive Billionaire Tax” →
Columns, Constitutional Law, Criminal law, Free Speech, Politics

It is Time to End Our Sedition Addiction

Below is my column in USA Today on the revival of sedition as a speech crime in the United States. Despite my criticism of the Democratic members of Congress over their recent message to American military personnel, this is not a prosecutorial offense and would collapse quickly in court. More importantly, it is the return of a crime long ago criticized by James Madison as a “monster” that should not be prosecuted in the United States.

Here is the column: Continue reading “It is Time to End Our Sedition Addiction” →

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” →

Res ipsa loquitur – The thing itself speaks