constitutional law
State Blacklists of Companies with Sustainability Policies Take a Constitutional Hit
A federal district court just struck down a Texas law blacklisting companies that oppose fossil fuels.
Four or five years ago, a half-dozen states passed laws that blacklist companies opposing fossil fuels. Texas was the most prominent of those states. These laws have pressured companies, especially big financial companies, to invest in fossil fuels. A federal district judge has struck down the Texas law as a violation of due process and the First Amendment. The court’s ruling is a welcome development and long overdue. Texas has been on a campaign to punish anyone who dares oppose the use of fossil fuels. It’s good to see that campaign hit a constitutional wall.
Taking Care That the Law Be Fitfully Executed
Carrying out the law is the core duty of the President. And it’s being openly violated.
The parameters of presidential power have been debated since soon after George Washington took office. But the Constitution makes at last one thing crystal clear: the President must “take care that the laws be faithfully executed.” This is a task to which the current incumbent, it can be safely said\, has not applied himself.
The “take care” clause is reinforced by the very terminology used to describe the President’s authority, the clause vesting the “executive power” in the President. That’s a clause much beloved of believers in the unitary executive. The word “executive” traces back to exsequii, meaning to carry out or follow (ex meaning “out”, sequii meaning “follow”). Faithful obedience to Congress hasn’t exactly been a hallmark of the current Administration. Whatever it is that Trump is faithfully executing, it’s not the laws of the United States. Unless, a bit darkly, you were to take “execute” in the modern sense of killing off, not in the constitutional sense of carrying out.
CONTINUE READINGTurning Conservative Legal Theories Against Trump
Is the risk of legitimizing bad ideas worth it? Maybe so, under the circumstances.
Conservatives have been obsessed with the idea of a runaway federal government crushing everything in its path. They’ve been successful in promoting ideas to rein in Leviathan, at a time when by our lights the government actually was behaving very reasonably. But now we really do have a rampaging federal government. Conservative ideas could be very useful tools right now, and we shouldn’t hesitate to use them.
CONTINUE READINGThe Forgotten Constitution
There’s a lot more than the “executive power” in there.
To hear Trump & Co., you might think that the Constitution was one sentence long, with that sentence vesting the executive power in the President. That’s the theory behind his efforts to remake the government – including environmental regulation – single-handedly. But there’s a lot more in there. Much of that forgotten language is directly relevant to the presidential actions that are now shaking the government, including environmental governance.
CONTINUE READINGViolations of Free Speech at EPA
EPA employees were within their rights with the dissent letter they wrote.
I know it must be a shock to the Trump Administration that even lowly civil servants — I’m sure they would put the emphasis on “servants” — have rights that Important People like them are obliged to respect. But we still live in a democracy, and as the Supreme Court once said, government employees don’t leave their First Amendment rights at the door.
CONTINUE READINGEmergency Powers Aren’t What They Used to Be
In the post-WW2 era, courts bent over backwards to accomodate emergency actions. Not true today, as Trump is finding out.
In mid-century America, emergency powers were truly potent. But those days are gone. In his two terms as President, Trump has declared 21 national emergencies, including eight since January 20. This glut of “emergencies” can only further discredit the whole concept. He and his advisors seem to see those as creating nearly magical legal powers, allowing them to deport people without hearings, run roughshod over environmental safeguards, and impose tariffs willy-nilly. They are probably in line for a disappointment. Judges are no longer in awe of emergency powers.
CONTINUE READINGGovernment Hires Shouldn’t Have to Take a MAGA Essay Test
Schedule F was bad, But Trump’s latest move is even worse.
The Trump Administration has adopted new hiring procedures that will impose ideological litmus tests in federal hiring. Job applicants will be graded on essays about their allegiance to “America’s founding principles” and their commitment to implementing Trump’s executive orders. These new essay questions have little to do with the jobs of most government and employees and more to do with ideological conformity. They violate both the Civil Service statute and the First Amendment.
CONTINUE READINGCorroding the Separation of Environmental Powers
“Who decides?” is the first question to ask about a policy issue. Trump’s answer is “me.”
Biden took actions that federal courts ruled exceeded statutory authority, raised separation of powers issues, or threatened federalism. The difference is that Trump has used brute-force attacks on agencies plus extortion against states rather than taking overt legal actions that courts can review.
CONTINUE READINGTrump Goes to War Against Environmental Justice
Apparently it’s “woke” to worry about excessive pollution in minority communities.
There is little or no basis for Trump’s claim that Clinton environmental justice order violated either civil rights laws or the Constitution. Trump’s embrace of this extremist view is an indication of just how much more radical his second term may be compared with his first. The law does not require the government to close its eyes to the harm its own policies may be causing to minority communities.
CONTINUE READINGThe Impoundment Gambit
Trump plans to use this unconstitutional strategy to reverse congressional priorities and gut environmental agencies.
Trump’s claim of constitutional control over spending would allow him to slash social security or environmental protection with a single stroke his pen, and there would be nothing Congress could do about it.
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