March 27 roundup

  • U.S. Department of Justice files brief in Kisor v. Wilkie somewhat critical of Auer deference, i.e. of deference to the federal government’s own positions. That’s pretty special, and commendable [William Yeatman, Cato; Jonathan Adler, earlier here and here]
  • Parsonage exemption (i.e., favored treatment of allowance for religious housing) does not violate Establishment Clause, rules Seventh Circuit panel [Gaylor v. Mnuchin; background, Kelsey Dallas, Deseret News; earlier]
  • Showing middle finger to police officer counts as constitutionally protected speech, and Sixth Circuit says every reasonable officer should know that already [Eugene Volokh]
  • Home-share hospitality is here to stay, unless regulators get it very wrong [Federalist Society video with Gwendolyn Smith, Matthew Feeney, and Pete Clarke]
  • “Tens of thousands of people in Missouri cannot drive as a result of their licenses being suspended over child support they are unable to pay.” A newly filed lawsuit challenges that practice [Hans Bader]
  • Only Congress can make new law, and administration can’t reach desired ban on “bump stock” firearms accessories just by reinterpreting existing federal law [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in D.C. Circuit case of Guedes v. BATFE]


  • RE: Cop pulling over the woman—hmmm. Why doesn’t 18 USC 242 apply to that situation?

    The cop acted under color of law and deprived the woman of her civil rights. Probably also can make out a claim of extortion (the increased ticket amount). And maybe even falsifying government records.

    Just one prosecution would be worth a thousand judicial opinions.

    If I were to vote for one of them, I would vote for Xavier Becerra getting prosecuted for 18 USC 242 and extortion laws due to his threats against the journalists who got the bad cops list.

    Jussie Smollett seems to be the beneficiary of connected justice, which brings the criminal justice system into disrepute. The idea of Becerra as the top LEO in our largest state should as well. Why does he get to use his badge to extort and federal law enforcement seems to shrug? And where are the journalists who are so intent on making up crimes (e.g., obstruction for firing James Comey)? And where is the California Supreme Court? Becerra is an attorney—and he is brazenly committing acts that violate ethics rules.

    I am not a fan of Saul Alinsky—but he was onto something when he said that people need to be held to the standards they set for others.

  • The Auer deference has long been a problem, and it’s good to see the Government backpedaling. However, the reasons for that shift are likely farther-ranging than the discussion indicates. Unlike the earlier administration, this one clearly sees it will not always be the one sending down orders as to how agencies are to interpret laws!

    Now, if only Congress will get off its collective butt and take back some of the powers it has granted the Executive branch because it’s too much work!