separation of powers
The 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.
CONTINUE READINGUpcoming Regulatory Cases in the Supreme Court
Two pending cases could result in big cuts to agency powers
Three weeks from today, the Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket. In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of …
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CONTINUE READINGTrump’s Border Wall, the Ninth Circuit Court of Appeals and Separation of Powers
U.S. Court of Appeals Rules Unconstitutional Trump Administration’s Diversion of $2.5 Billion in Congressionally-Appropriated DOD Funds for Border Wall Construction
Late last week, the U.S. Court of Appeals for the Ninth Circuit struck down the Trump Administration’s attempted diversion of $2.5 billion in federal funds Congress had appropriated for the Department of Defense. The Trump Administration did so in order to finance President Trump’s proposed, controversial border wall at a level Congress had expressly declined …
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CONTINUE READINGJustice Gorsuch versus the Administrative State
Does the Gundy decision spell doom for modern government?
Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the …
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CONTINUE READINGUsing Emergency Powers to Fight Climate Change
If Trump can stretch emergency powers, maybe they can be used for other purposes too.
Could a future President invoke emergency powers against climate change? Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There’s no doubt that this would be far more legitimate than Trump’s wall effort. Border crossings …
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CONTINUE READINGBoehner’s Blunderbuss
The Speaker’s authority to sue federal officials is remarkably broad.
The House passed a resolution Wednesday authorizing Speaker Boehner to file suit on its behalf. A resulting suit is unlikely to succeed for a host of reasons, including the dubious legal standing of the House to bring such a case. But if it does succeed, this kind of mechanism could have real benefits at some future time …
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CONTINUE READINGThe 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. …
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CONTINUE READINGAre 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 …
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CONTINUE READINGProds and Pleas/Stopgaps and Failsafes
In a recent article in the Yale Law Journal, Benjamin Ewing and Douglas Kysar discuss how other part of government can step in when Congress defaults on its responsibility to make public policy. Their article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, focuses on the tort litigation involving climate change. Using …
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CONTINUE READINGMore Garbage Conservative Constitutional Theory
James Joyner is one of the few conservatives who actually try to come up with intellectually coherent policy positions, and he often does. So maybe we should give him a pass when he blows it. But wow, is this one a doozy. The EPA has decided to begin to issue greenhouse gas regulations, as it …
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