- Nice little Supreme Court you got there, be a shame if anyone came around to mess it up, say Sens. Whitehouse, Blumenthal, Gillibrand, Hirono, and Durbin in incendiary “enemy-of-the-court” brief [Robert Barnes, Washington Post/Laredo Morning Times; David French, National Review; James Huffman, Inside Sources]
- Cato podcast triple-header, all with Caleb Brown: Trevor Burrus and Ilya Shapiro on Gundy v. U.S. and the limits of Congressional delegation, Ilya Shapiro and Clark Neily on the aftermath of double-jeopardy case Gamble v. U.S., and Trevor Burrus on the First Amendment case Manhattan Community Access Corporation v. Halleck (cable public access channel not a state actor);
- Criminal forfeiture, where used, should track lines of individual owner and asset responsibility, not the loose all-for-one joint-and-several-liability standards of some civil litigation [Trevor Burrus on Cato certiorari petition in Peithman v. U.S.]
- Federalist Society National Student Symposium panel on “The Original Understanding of the Privileges and Immunities Clause” with Randy Barnett, Rebecca Zietlow, Kurt Lash, Ilan Wurman, and moderated by Judge Amul Thapar;
- On the independence of administrative law judges, issues left over from Lucia v. U.S. are now coming back up in SEC proceedings [William Yeatman on Cato Fifth Circuit amicus brief in Cochran v. U.S.]
- Take-land-now, pay-later procedures may get pipelines built faster but at the expense of property owners’ rights. SCOTUS should act to assure just and timely compensation [Ilya Shapiro on Cato certiorari petition in Givens v. Mountain Valley Pipeline]
Search Results for ‘gundy "supreme court"’
Supreme Court roundup
- Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
- Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
- High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
- “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
- I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
- “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]
Religious establishment and improper delegation at the Supreme Court
Yesterday’s biggest news from the Supreme Court was not its 7-2 upholding of the Bladensburg, Md. Peace Cross (American Legion et al. v. American Humanist Association et al.; earlier). That outcome could readily have been foreseen given the result in earlier cases: Justices Stephen Breyer and Elena Kagan, to say nothing of the five conservatives, are prepared to uphold “longstanding monuments, symbols, and practices” that may include religious content but do not impose any significant harms on those of other faiths or none. This World War I memorial qualifies.
Instead, the big news is the outcome in Gundy v. U.S. (earlier), a case over whether Congress can delegate to the Department of Justice the power to decide how severe the penalties will be in one application of the sex offender registration law. While the critique of excessive delegation did not carry the day this time (the vote was 4-3-1 with Justice Brett Kavanaugh not participating), Justice Samuel Alito indicated that he would be inclined to look at the issue in a future case, and Kavanaugh is thought (from his D.C. Circuit jurisprudence) to be similarly minded. If so, then a future case could establish the important principle that Congress must spell out penalties and prohibitions in law itself, rather than punt such issues to executive agencies, at least in criminal matters and perhaps also in some regulatory ones. That’s huge, since the Court has rejected improper-delegation theories since the New Deal.
Justice Neil Gorsuch’s dissent in Gundy, together with his scalding dissent (earlier) in the double jeopardy/dual sovereignty case Gamble v. U.S. on Monday, makes him the libertarian hero of the week.
Supreme Court roundup
- “The Supreme Court should…reaffirm that the Constitution’s prohibition against ex post facto lawmaking forbids states from skirting constitutional scrutiny by simply labeling penalties as ‘civil'” [Ilya Shapiro and Nathan Harvey on Cato certiorari brief in Bethea v. North Carolina]
- Interesting: arguments that might work for progressive litigation outcomes in a more conservative Supreme Court [Daniel Hemel, Take Care]
- Notable cert grants: continued viability of Illinois Brick indirect purchaser doctrine [Cory Andrews, WLF on Apple v. Pepper iPhone antitrust litigation] Arbitration returns in two cases on class arbitration [Steptoe on Lamps Plus v. Varella; more, FedSoc with J. Michael Connolly] and delegation of arbitrability [Peter Phillips on Henry Schein Inc. v. Archer and White Sales Inc.] Court will revisit retaliatory-arrest First Amendment issue [Eugene Volokh on Nieves v. Bartlett, last year’s case]
- Gundy v. U.S., on whether Congress can delegate to the Attorney General the range of punishable conduct under the sex offender registry law SORNA, might revive vitality of non-delegation doctrine with far-reaching consequences [Trevor Burrus and Reilly Stephens on Cato brief; Damon Root, Reason; Matthew Cavedon and Jonathan Thomas Skrmetti, Federalist Society; more, FedSoc “Courthouse Steps” before and after, Randolph May, Georgetown/FedSoc panel with Todd Gaziano and Amanda Shanor, moderated by Evan Bernick, for FedSoc’s “Necessary and Proper” podcast] Law authorizing Homeland Security secretary to waive other laws to build border wall delegates too much legislative power to executive branch [Ilya Shapiro on Cato cert amicus on non-delegation doctrine in Animal Legal Defense Fund v. Department of Homeland Security]
- This is really something: argument that maybe it’s unconstitutional to have too conservative a Supreme Court [David Orentlicher, PrawfsBlawg]
- High court should review whether California state commission can force grape growers to pay for industry ads [Ilya Shapiro and Michael Finch on Cato amicus seeking cert in Delano Farms v. California Table Grape Commission]
Regulation and administrative law roundup
- Case over harsh IRS handling of lost-in-mail filing reflects worst practices on judicial deference [William Yeatman, Yale Journal on Regulation on Cato certiorari amicus brief in Baldwin v. U.S.] “Congressional Delegation of Regulatory Authority and Time” [Cato podcast with Yeatman and Caleb Brown]
- “Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie” [Paul J. Larkin Jr., Cato Supreme Court Review; earlier on Kisor; Cato podcast with Ilya Shapiro (“Auer deference could become minute deference”), William Yeatman and Caleb Brown]
- “Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine” [Gary Lawson, Cato Supreme Court Review, earlier on Gundy v. U.S. here, here]
- “From Chevron to ‘Consent of the Governed'” [David Schoenbrod, Cato Regulation magazine; Cato panel discussion video with Adam White, David Doniger, Shapiro and Yeatman; Federalist Society panel discussion video with Mark Chenoweth, Doniger, Kristin Hickman, Schoenbrod, Jennifer Mascott]
- “Recognizing the Congressional Review Act’s Full Potential” [Jonathan Wood, Federalist Society, earlier]
- “Idaho is the only state in the nation where the elected representatives of the people must affirmatively act at regular intervals to continue the existence and operation of their regulatory system.” When a lapse in reauthorization threw the regulatory code into question, a remarkable struggle began [J. Kennerly Davis, Federalist Society]
April 25 roundup
- More on that Edwardsville, Ill. Pizza Hut door-swing case and its attorney-complainant [Madison County Record; earlier]
- Workers at U.K. health and safety agency told not to move chairs in the office, they might hurt themselves [Daily Mail via Nobody’s Business]
- Lawyer who hoped for $25 million will appeal arbitrator’s ruling awarding him only a solitary buck ($1.00) for “redundant and unnecessary” work on San Diego pension crisis [Lattman]
- New at Point of Law: Ted on Sen. Fred Thompson, Oklahoma enacts liability reform, RFK Jr. as mass-tort tout, birthing balls, and much more;
- Title IX from outer space: now it’s Virginia’s James Madison U. axeing teams [USA Today; more]
- Westchester County, N.Y. dominatrix sues police dept., saying media frenzy dashed her hopes of Wall Street career [Journal-News; more on attorney Ravi Batra]
- Parodists, retire now: ex-N.J. governor McGreevey, disgraced after hiring unqualified paramour for key safety post, appointed to teach course on ethics [Orac]
- “School choice, but only for the most irritating parents” [Coyote on Supreme Court’s pending special-ed case; more]
- Will tainted-pet-food episode give lawyers their long-sought breakthrough on loss-of-companionship, other intangible damages for animal injury? [NLJ; earlier]
- Disgruntled former partner withdraws charge of impropriety over Oz breast implant fees [The Australian; Aust. Prof. Liab. Blog; earlier]
- Dr. who delivered Illinois Gov. Blagojevich’s daughter throws in the towel [three years ago on Overlawyered]