People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention […]
Archive | November, 2013
Hobby Lobby Week Next Week
The Supreme Court just agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. In both, the owners of closely held, family-owned corporations hold religious beliefs that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including […]
The Prospect of Scottish Secession from Britain
One of the major issues on the British political agenda while I have been in the UK this week giving talks about Democracy and Political Ignorance is the prospect that Scotland might become an independent nation separate from the United Kingdom. A referendum on independence is scheduled for September 2014. A recent poll shows the […]
“During the Recess”
The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has […]
Jim Harper and My Essay on the Unconstitutionality of the NSA Bulk Data Seizures
The Federalist Society’s journal Engage has an interesting Symposium on the National Security Agency’s Bulk Data Seizures and FISA Surveillance Programs. The symposium includes my very brief essay with Cato’s Jim Harper, Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional. In it we contend that: Rather than airy and untethered speculations about “reasonable expectations,” the courts […]
Originalist Scholars Amicus Brief in NLRB v. Noel Canning
Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning. Much of the evidence cited is taken from Michael Rappaport’s path-breaking 2005 article, “The Original Meaning of the Recess […]
How Obamacare Should Honestly Have Been Defended
Over on The Daily Caller, Josh Blackman offers a tongue-in-cheek parody Thanksgiving Address that could have been given by President Obama in November 2009 to honestly defend the yet-to-be-released Senate originated Affordable Care Act. But his parody is fair and nuanced enough to provide a template for what an honest description and defense of Obamacare […]
Thanksgiving Wishes from Washington and Jefferson
Happy (American) Thanksgiving to all readers! And some Thanksgiving thoughts from Presidents Washington and (below the fold) Jefferson: President Washington: Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor … Now […]
Thanksgiving for Purported Pirates in Russia and the U.S.
By Eugene Kontorovich on November 28, 2013 8:00 am in Criminal Law, Federal Jurisdiction, International Law, National Security, Russia
It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about […]
China Asserts Air Defense Identification Zone Around Disputed Pacific Islands
By Kenneth Anderson on November 27, 2013 7:33 pm in International Law, Uncategorized, War and Armed Conflict
Julian Ku at Opinio Juris notes that while much of the foreign policy community is focused on the Iran deal, China has undertaken a significant political escalation of its dispute with Japan over the Senkaku (or Daioyu) Islands, by invoking a so-called Air Defense Identification Zone (ADIZ) around the disputed islands. The Wall Street Journal […]
Another ObamaCare Delay: SHOP Exchange Enrollment
Politico reports: The Obama administration today announced a one year delay of online enrollment for small businesses looking to purchase health coverage through federal Obamacare exchanges, another high-profile setback for HealthCare.gov. It’s the second delay for online small business enrollment, which the administration had said would begin this month. . . . The administration originally […]
The Rule of Lenity Versus Chevron Deference
In his concurring opinion today in Carter v. Welles-Bowen Realty, Judge Sutton addresses a very interesting legal question: If an administrative agency is charged with administering a statute with criminal sanctions, and the agency adopts a broad reading of the statute that ordinarily would be entitled to Chevron deference absent the criminal sanctions, does the […]
The Lon Fuller Website
I was googling around yesterday and stumbled across a website that I think is a pretty cool idea: LonLFuller.org, a website created by the estate of the law professor and legal theorist Lon Fuller. Fuller died in 1978, but his estate set up the website to have a short biography of Fuller (with some personal […]
Student Prevented from Handing Out the Constitution… On Constitution Day
Greg Lukianoff and Robert Shibley of FIRE have come across a doozy of a free speech case–a Modesto Junior College student who was prevented from distributing copies of the Constitution on Constitution Day. The student, a former Army veteran, recorded the incident. Posted here. One of the illuminating things about this video is the combination […]
Understanding the Enemy
The latest Snowden leak story is in the Huffington Post. It says that NSA thought about exposing the hypocrisy of Islamic extremist recruiters by revealing their financial greed or predatory sexual habits. I’m quoted in support of considering such tactics, but the backstory of the interview may be more interesting. When one of the authors, […]