The Obama administration won only 50.5 percent of its cases before the Supreme Court, an unusually low rate historically. The number can be seen as an outlier, or as “part of a trend that started after the Reagan administration, which won 75 percent of the time. Each succeeding president did worse than the last. President George Bush won 70 percent of his cases, President Bill Clinton 63 percent and President George W. Bush 60 percent.” [Adam Liptak, New York Times; earlier here, here, etc.]
Donald Trump’s inaugural address missed the mark a bit in discussing the oath of office, and would have profited by a mention or two of the Constitution, I argue at Cato at Liberty.
Meanwhile, my colleague Ilya Shapiro has this send-off to the departing president: “Top 10 Ways Obama Violated the Constitution during His Presidency.”
- R.I.P at 91 Nat Hentoff, magnificent cultural figure, champion of free speech and civil liberties [Tim Lynch; Cato biography page with links to commentaries; related YouTube playlist; his last Village Voice column; trailer on documentary; large archive at Unz.org including work for Inquiry; remembered by free speech expert Ronald K.L. Collins, with many links]
- “Self-Proclaimed Inventor of Email Files Defamation Lawsuit Against Techdirt’s Mike Masnick” [THR, Esq./Hollywood Reporter; “the latest case from attorney Charles Harder, who previously represented Hulk Hogan against Gawker”]
- In the mail: Paul Cliteur and Tom Herrenberg, eds., The Fall and Rise of Blasphemy Law [Leiden University Press]
- On porn, some GOP lawmakers favor wacky litigation theories; others, a nanny state approach [Elizabeth Nolan Brown (Utah proposal), A. Barton Hinkle (Virginia)]
- The most damaging way for Trump to attack the press could be the one Obama has already laid out, namely pursuit of leaks and leakers [Peter Sterne/Politico, Mike Masnick/TechDirt] Mark Feb. 3 on calendar for Cato panel on free speech under Trump with Flemming Rose, Frank Buckley, Robert Corn-Revere; earlier Cato panel with Rose and Nick Gillespie on free speech in age of Trump now online; related on Trump’s antagonism toward critics from Jacob Sullum, Eugene Volokh;
- If Euro-style hate speech law ever sneaks into U.S., enactments like Louisiana’s Blue Lives Matter law may show the way [Scott Shackford, Reason; earlier]
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.
There’s hope for stopping some of the regulations that the Obama administration began dropping in its last months before heading out the door, including the arguably worst of all, overtime for mid-level workers, now blocked by a federal judge in Texas [Kathy Hoekstra/Watchdog, McClatchy, Brittany Hunter/FEE; Virginia Postrel (“Not every workplace is, or aspires to be, the civil service. Not every worker longs to be on an assembly line.”)]
- Finally, some progress? White House releases “Housing Development Toolkit” urging local policymakers to expand by-right development, accessory dwelling units, pro-density rezoning [Jonathan Coppage, Washington Post; Vanessa Brown Calder, Cato]
- And see related: “Parking Requirements Increase Traffic And Rents. Let’s Abolish Them.” [Brent Gaisford, Market Urbanism] “America’s Ugly Strip Malls Were Caused By Government Regulation” [Scott Beyer]
- And yet more, stranded in Seattle: “Micro-Housing, Meet Modern Zoning” [Vanessa Brown Calder, Cato]
- California: “Coastal Commission Abuse Smacked Down by Court” [Steven Greenhut]
- “If firms refused to take direction, FDR ordered many of them seized.” For climate change advocate Bill McKibben, RICO-for-deniers is only the start [New Republic] Fan at New York Times eyeing McKibben to win Nobel [Timothy Egan]
- “Midnight Monuments: The Antiquities Act and the Executive Authority to Designate National Monuments” [Federalist Society podcast with Donald Kochan and Charles Wilkinson]
An unprecedented volume of rulemaking by the Obama administration, at a pace of one major rule every three days, will soon be followed by an even more intense binge of the “midnight” regulation seen at the end of many presidential tenures. Sam Batkins of American Action Forum and Sofie Miller of George Washington University Regulatory Studies Center, authors of two recent papers on the subject, discuss in a Federalist Society podcast moderated by Hoover’s Adam White. More: binge of Obama labor regulation will cost economy $80 billion over ten years [Ike Brannon and Sam Batkins for NAM]
- 21 professors, including Bartholet, Epstein, and McConnell, write letter to Department of Education Office of Civil Rights [OCR] challenging its directives on campus sexual harassment [Ashe Schow, Washington Examiner] Student suing Colorado State over multi-year suspension adds OCR as a defendant [Scott Greenfield; more, George Will]
- President Obama has been saying things students need to hear about intellectual freedom at commencements [Howard and Rutgers, Jonathan Adler] “Does Obama understand that his own government is responsible for the safe-space phenomenon he frequently decries?” [Robby Soave]
- Protesters these days disrupting and physically shutting down a lot of pro-Israel campus speeches and events on US campuses [Observer; UC Irvine]
- “Jokes, insensitive remarks, size-ist posters”: from a distance the doings of the University of Oregon’s Bias Response Team can seem kind of hilarious. Maybe not up close [Robby Soave/Reason, Catherine Rampell/Washington Post] “Towson U. [Maryland public university] implements ‘hate/bias’ reporting system to ensure ‘anti-racist campus climate’” [The College Fix]
- Read and marvel at the arguments being deployed against Prof. Dale Carpenter’s proposal for bolstering free expression at the University of Minnesota [Susan Du, City Pages] “Why Free Speech Matters on Campus” [Michael Bloomberg and Charles Koch]
- Faculty at George Mason University law school unanimously affirm commitment to renaming school after Justice Antonin Scalia [Lloyd Cohen, Michael Greve]
I’ve got a new post at Cato summarizing four recent cases in which judges have rebuked the Equal Employment Opportunity and Department of Labor, awarding attorneys’ fees against the agencies in two cases (Gate Guard and Freeman Cos.) and rejecting two major EEOC initiatives against wellness programs (Flambeau) and severance package language (CVS). Excerpt:
Why are independent, strong-minded courts so important to a free society? One reason is that they – and often only they – are the ones who can stop government agencies from trampling on the rights of the citizens….
Imagine what these agencies and others would be getting away with were our judiciary someday reduced to a spirit of subservience to the executive branch of government.