constitutional law

Clearing the Air

The DC Circuit upholds a major air regulation.

On Friday, the D.C. Circuit decided Murray Energy v. EPA.  The court upheld EPA’s health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak).  However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when …


What’s Wrong with Juliana (and What’s Right?)

The odds against the “children’s case” are bad and getting worse. But there’s a valid insight at its core.

Juliana v. United States, often called the “children’s case,” is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions.  They ask the court to “declare the United States’ current environmental policy infringes their fundamental rights, direct the …


The Anthropocene and public law

Major doctrinal changes could occur in constitutional law, administrative law, criminal law

In this post, I will discuss ways in which the Anthropocene might affect public law doctrines, focusing on constitutional law, administrative law, statutory interpretation and criminal law. Again, the changes here are driven by three characteristics of the interaction of the Anthropocene with the legal system that I have developed in my prior posts: a …


The Misleading Argument Against Delegation

Agency rulemaking is limited in ways that are far different from legislative lawmaking.

It’s commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government.  Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies.  But this is mistaking …


Regulators Between a Rock and a Hard Place: The Extraterritorial Dilemma

Current dormant commerce clause doctrine creates an incredible dilemma for state lawmakers. No matter what they do, they are at serious risk of attack under the dormant commerce clause. Here’s an example. Suppose a state wants to move its own electricity generators from fossil fuels to renewable energy. For instance, the state might require that …


The Right-Wing Noose Tightens on Recess Appointments

Republican judges are continuing to do their best to hamstring the Obama Administration: six days ago, the Third Circuit joined the DC Circuit in restricting recess appointments to intersession recesses.  Intrasession recesses, which, as the Court noted, were made routine under Ronald Reagan and used nearly 150 times by George W. Bush, are now unavailable.  …


Are Filibusters of Executive Branch Nominees Constitutional?

President Obama’s announcement today making three nominations to the National Labor Relations Board should remind us that the GOP is the party of permanent constitutional crisis.  It has been quite clear from the beginning of the Obama Administration that the Republicans simply have no interest in allowing the NLRB to function.  That shouldn’t be much …


Does the President Even Need the Senate to Confirm Appointees?

Damn. I suppose that it’s an occupational hazard of law professors that they kick around an idea, only to find that someone has beaten them to the punch.  Well, Harvard’s Matthew Stephenson has done that to me, sort of, with an essay in the most recent volume of the Yale Law Journal entitled, Can the President Appoint Principal Executive …


We Interrupt This Blog…

…and outsource it to Scott Lemieux of Lawyers, Guns, and Money, who sets forth succinctly the meaning of Neoconfederate David Sentelle’s DC Circuit opinion today regarding recess appointments.  Specifically, this controversy concerned recess appointments to the National Labor Relations Board, and the right-wing Republican panel struck them all down, which I am sure is completely …


Did the Founding Fathers Believe in a Strong Federal Government? You Betcha.

The whole point of the Constitution was to give the federal government more power.