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In defense of the court decision striking down Obamacare
The outrage against the latest court decision striking down the Affordable Care Act (ACA or Obamacare) is misplaced.Much of it comes from people – particularly liberal law professors – who thought the...
View ArticleFederal Judge Cites “National Security” as Reason to Throw out Lawsuit over...
People often say we shouldn’t worry about federal surveillance because the federal courts will protect our rights and ensure agencies like the NSA and FBI operate within the confines of the Fourth...
View ArticleCan the Supreme Court Review Impeachments?
At The Hill, Alan Dershowitz answers yes: Supreme Court could overrule an unconstitutional impeachment. From the beginning:President Trump has said that if the House were to impeach him despite his...
View ArticleRoe v. Wade Did Not Legalize Abortion in the United States
The infamous Supreme Court case of Roe v. Wade did not legalize abortion in the United States. Its repeal will not outlaw abortion in the United States.In Roe v. Wade (1973), the Court held that a...
View ArticleCan Government Punish Twice for the Same Crime?
“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” -Fifth Amendment to the U.S. ConstitutionThe government in America is out of control.There is no...
View ArticleThe Supreme Court Gets It Wrong Even While Getting It Right
Conservatives are cheering the recent opinion by the United States Supreme Court allowing a cross to remain on public land. But should they be?In 1918, residents of Prince George’s County, Maryland,...
View ArticleSupreme Court Simultaneously Tramples State Sovereignty and Fourth Amendment
A case recently decided by the U.S. Supreme Court once again reveals the inherent danger of placing virtually unlimited authority in the federal judiciary and centralizing decision making for 50...
View ArticleOn the Omission of the Term “Expressly” from the Tenth Amendment
In his recent review of Lawrence Lessig’s new book, “Fidelity and Constraint,” Georgetown law professor John Mikhail takes issue with Lessig’s account of the New Deal. Mikhail rejects Lessig’s implied...
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A Blow to Gun Manufacturers But a Win for Federalism
In one fell swoop, the Supreme Court of the United States struck a blow to gun manufacturers and a victory for federalism. On Nov. 12, the High Court rejected an appeal from Remington Arms. The company...
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Why McCulloch v. Maryland – now 200 years old – is not a “big government”...
This year marks the 200th anniversary of the Supreme Court’s ruling in McCulloch v. Maryland. In that case, Chief Justice John Marshall upheld Congress’s power to charter a national bank—a distant...
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Originalism, the Fourth Amendment, and New Technology
One of the important issues for originalism is whether it can be applied to new circumstances that were not envisioned at the time of the original Constitution. Perhaps this issue is encountered most...
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Federal Appeals Court: Warrantless Data Collection Is Constitutional
The Second Circuit Court of Appeals issued an opinion that domestic data gobbled up by the National Security Agency (NSA) under Section 702 of the Foreign Intelligence Surveillance Act (FISA) and PRISM...
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Clearing up the confusion about Marbury v. Madison
It is true that the Constitution does not expressly say that the federal courts have the power to strike down acts of Congress which are unconstitutional. What Article VI of the Constitution does say,...
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A Defense of the Electoral College
My career shows an interesting pattern: Although law journals at “prestige” law schools—which are overwhelmingly liberal and anti-originalist—usually refuse to publish my scholarship, they frequently...
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Recess Appointments and Presidential Adjournments
At Volokh Conspiracy, Josh Blackman comments on President Trump’s suggestion that he might adjourn Congress as a way of filing vacancies for which the Senate has not confirmed a nominee. President...
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Another Case Shows the Supreme Court Doesn’t Protect Liberty
The Supreme Court handed down another opinion eroding the Fourth Amendment in a case that should have never gone to the federal court. Kansas v. Glover revolves around a traffic stop by Douglas County...
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The Incorporation Doctrine and the Bill of Rights
In a previous Constitution 101 post, I established that the Bill of Rights was not originally intended to apply to the states. But lawyers and other supporters of federal courts policing rights at the...
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The Supreme Court’s Dereliction of Duty on Qualified Immunity
by Jay Schweikert, CATO Institute Monday morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it...
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Federal Judge Blasts Qualified Immunity then Grants it Anyway
Another local cop got away with abusing an individual’s rights thanks to qualified immunity and the incorporation doctrine. U.S. District Court Judge Carlton W. Reeves wrote a stinging rebuke of the...
View ArticleCan the Government Force Us to Eat Broccoli?
With President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court, the Affordable Care Act — Obamacare — is back in the news. Barrett expressed constitutional misgivings about...
View ArticleFederal Courts Fail Again in Washington Gun Case
Conservatives and libertarians often turn to the federal courts to “protect their rights” through an application of the Bill of Rights to the states. This is a bad strategy. Most of the time it fails,...
View ArticleFederalism Gets the Bird for Thanksgiving
In what many consider a Thanksgiving gift for religious liberty, the United States Supreme Court struck down occupancy limits for church gatherings in New York. The restrictions were implemented by...
View ArticleThe Supreme Court Used to Consider the Minimum Wage Unconstitutional
I wonder how many Americans realize that the U.S. Supreme Court once declared the minimum wage to be in violation of U.S. Constitution. This occurred in 1923 in a case entitled Adkins v. Children’s...
View ArticleTorture Enters the Courtroom
For the first time in American history, a federal judge last week authorized the government to admit as evidence in a criminal case in a public courtroom words uttered by the defendant that were...
View ArticleSupreme Court: Property Rights vs Labor Unions
As the Supreme Court’s recent Obamacare case illustrates, the justices no longer enforce most of the Constitution’s limits on the federal government. But a new property rights decision demonstrates how...
View ArticleNeither Necessary nor Proper
It was sixteen years ago last month that the U.S. Supreme Court, in the case of Gonzales v. Raich (2005), ruled that the Controlled Substances Act (21 U.S.C. 801) did not exceed the power of Congress...
View ArticleThe Supreme Court Case that Protects Cops Using Dangerous Chokeholds
Even supporters of the police were shocked by the video of Officer Derek Chauvin pressing his knee on George Floyd’s neck as the restrained man struggled to breathe. Chauvin used one form of chokehold,...
View ArticleThe Police State’s Reign of Terror Continues, With Help from the Supreme Court
You think you’ve got rights? Think again. All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy,...
View ArticleWhen Are Secrets Not Secret?
“Three people can keep a secret if two of them are dead.”- Benjamin Franklin (1706-1790) Last week, President George W. Bush’s torture regime reared its head in an unusual argument before the U.S....
View ArticleCongress’s new unconstitutional “tax mandate” and its runaway spending power
While the public focuses on the Biden administration’s vaccination mandate, many are overlooking yet another new federal mandate: Congress’s effort to ban state tax cuts. Congress passed the so-called...
View ArticleDoes Biden’s OSHA vaccination mandate exceed federal authority?
On November 12, a federal appeals court suspended the Occupational Safety and Health Administration (OSHA) order fining businesses with 100 or more employees for each employee unvaccinated against...
View ArticleRecord Shows Supreme Court Overwhelmingly Protects Federal Power
One of the most prevalent political strategies is to sue and hope federal courts rein in unconstitutional federal overreach. But evidence shows it almost never turns out that way. While some justices...
View ArticleHow the Supreme Court rewrote the Constitution: 1937–1944; Part I
The Constitution created a relatively small federal government, with powers limited to certain listed subjects. It was a frugal institution, designed to “preserve the blessings of Liberty” and to bring...
View ArticleHow the Supreme Court Rewrote the Constitution Part III: The Court on the Brink
The first installment in this series explained that the Constitution created a small and frugal federal government. This didn’t change materially until the 1930s and 1940s. The second installment...
View ArticleHow the Supreme Court Rewrote the Constitution Part IV: A packed court and a...
The first, second, and third installments in this series explained that the Constitution created a small and frugal federal government. Those installments discussed how President Franklin D....
View ArticleHow the Supreme Court Rewrote the Constitution Part V: Killing Economic Freedom
The first, second, third, and fourth installments in this series described how the Constitution established a relatively small federal government with limited powers and how President Franklin D....
View ArticleHow the Supreme Court Rewrote the Constitution Part VI: Crushing Civil Liberties
The first, second, third, fourth and fifth installments in this series traced how the Supreme Court responded to President Franklin D. Roosevelt’s efforts to break constitutional limits and create a...
View ArticleYet Another Federal Court Fail
Conservatives and libertarians often count on the federal courts to “protect their rights.” This is a bad strategy. Most of the time it fails. Instead of protecting rights, federal courts hand down bad...
View ArticleHow the Supreme Court Rewrote the Constitution Part VII: Concentration Camps...
This is the last installment in a series on the nadir, or low point, of the U.S. Supreme Court. This was the period from 1937 to 1944, when the court stopped protecting the Constitution’s limits on the...
View ArticleIndian Child Welfare Act: Another case of Congress’s overreach goes to the...
The federal Indian Child Welfare Act (ICWA) is a classic instance of congressional overreach: It imposes sweeping child adoption rules on the states and has caused extreme hardship for Native children...
View ArticleThe 1859 Oberlin Trial: A Victory for the Higher Law
Months prior to John Brown’s infamous 1859 raid on Harper’s Ferry, a trial took place rooted in the same issues of slavery and federal enforcement that, while ultimately inconsequential in shaping...
View ArticleThe Fascinating Supreme Court Opinions in the Vaello Madero Case
Note: In this Supreme Court case, issued April 21, 2022, II’s Rob Natelson received his 21st citation from the justices—this time from Justice Clarence Thomas. In this essay, which first appeared in...
View ArticleFact Check: No, overruling Roe v. Wade would not endanger other rights
In a previous essay, I surmised that the purpose of leaking the Supreme Court’s draft opinion overruling Roe v. Wade (pdf) was to expose one or more justices to political pressure. Abortion proponents...
View ArticleHow the States Can be Even Worse than the Feds on Qualified Immunity
For decades, the federal courts have upheld the doctrine of qualified immunity, giving federal officials enormous legal protections against lawsuits from private citizens for violating their rights....
View ArticleThe Supreme Court’s New Decision on “Taking Property”
In the next few weeks, the Supreme Court will be finishing up its October Term. The term gets its name from the fact that it begins Oct. 1. The next few columns will unpack some of the court’s most...
View ArticleFederal Power Outside the Constitution?
If you have read my Epoch Times series, “How the Supreme Court Rewrote the Constitution,” you know that the justices have stretched some of the Constitution’s terms greatly to support the federal...
View ArticleFive Years Later Supreme Court Decision Still Hasn’t Significantly Limited...
Many people believe the Supreme Court “ended asset forfeiture” with its 2019 opinion in Timbs v. Indiana. As we argued at the time, Timbs ended nothing, and follow-up cases bear this out. This...
View ArticleSCOTUS Defends Property Rights, but Raises Constitutional Questions
The current Supreme Court is a vigorous defender of property rights. In general, I like that. But as I observed in a column last year, the court sometimes goes beyond what an accurate reading of the...
View ArticleThe Supreme Court Bump Stock Case: Defeat for the “Deep State”
Justice Clarence Thomas’ opinion for the Supreme Court in Garland v. Cargill—the “bump stock firearms” case—may be more important for what it does not say than for what it does. On its face, Cargill...
View ArticleThe Supreme Court Was Wrong About Taxes
Along with some good decisions, Supreme Court justices made some mistakes in the term just ended. One mistake involved taxes—and it is likely to bedevil the court in future cases. Moore v. United...
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