Supreme Court

D.C. and Puerto Rico are not the same.

Blanket calls for D.C. and Puerto Rico statehood miss a critical difference: D.C. is the American capital. Puerto Rico is an American colony.

“D.C. and Puerto Rico should be states. Pass it on.” With passage of the D.C. statehood bill in the House of Representatives last Friday, variations on this statement have been gaining traction as a liberal rallying cry. Because they are not states, neither D.C. nor Puerto Rico have voting representation in Congress. The votes of …

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On This Date in History: Property Rights Won Big in the Supreme Court

June 29, 1992 was a great day for property rights advocates. But what came later wasn’t so good.

On this date in 1992, the property rights movement achieved its greatest victory in the form of the Supreme Court’s Lucas ruling. The campaign to protect property rights seemed to have huge momentum.  But things didn’t work out that way. For property rights advocates, Lucas turned out to be a false dawn. Mr. Lucas owned …

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Fancy Dancing on the Appalachian Trail

How to Use Textualism to Evade Statutory Texts

The Supreme Court’s decision in Cowpasture case allows gas pipelines to cross the Appalachian trial. The ruling didn’t get much attention because of its timing. It came down the same day as Bostock, which outlawed employment discrimination against gays and transsexuals. Bostock featured a big battle over the meaning of textualism. But Cowpasture was also …

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The Coronavirus and the Commerce Clause

Could Congress mandate CORVID-19 vaccinations? Not if you take some Supreme Court opinions seriously.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated?  That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate.  The lawyer challenging Obamacare said “no, Congress couldn’t do that.” What’s shocking is that this may have …

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Does the Constitution Exempt Churches from Social Distancing?

Short answer: “No.” And it might even be unconstitutional for states to grant such exemptions.

Most religious groups have willingly complied with public health limits on large gatherings.  But not all.  These claims of religious exemption, and some states’ responses to them, raise important constitutional issues. There have been a couple of cases in the spotlight. Rodney Howard-Browne is a Florida preacher who prayed over Trump in the Oval Office …

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Is Saving Lives Unconstitutional?  A Response to John Yoo

Takings law is complicated, but the answer to this question is clear. The answer is no.

Like others on the extreme right, the Hoover Institution is campaigning against “stay at home” orders because they cost too much money.  Regrettably, the most recent argument to this effect on their website is by my colleague John Yoo.  He argues that the Constitution requires states to compensate business owners for their losses. That’s simply …

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Federalism and the Pandemic

For statutory, practical, and constitutional reasons, states are on the front line.

The states have been out in front in dealing with the coronavirus. Apart from Trump’s tardy response to the crisis, there are reasons for this, involving limits on Trump’s authority, practicalities, and constitutional rulings. Statutory limits. As I discussed in a previous post, the President’s power to deal with an epidemic is mostly derived from …

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From the Grand Canyon to Contaminated Cantaloupes – and More

Five books with fresh perspectives on environmental issues.

Law reviews make little effort to track new books, unlike other journals in other disciplines . So it’s pretty much hit-or-miss whether you learn about relevant new books.  I wanted to share some interesting finds that have crossed my desk, joined a growing pile of unread books, and then slowly left the pile. The subjects …

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Election 2020: The Battle for the Senate

Whatever happens to the White House, control of the Senate will be crucial.

It’s natural that the Presidential election has soaked up all the attention.   But control of the Senate may be equally important — some might say even more important. If a Democrat wins in 2020, there will be little or no chance of passing significant legislation without control of Congress.  It seems very likely that the …

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Deciding a Climate Case in the Shadow of the Supreme Court

Juliana Judges Surely Had The Higher Court in Mind in Drafting Their Decision

The irony of the Ninth Circuit decision dismissing the Juliana v. United States  case this week is plain to see. Two branches of government — the legislative and executive –  have failed to act to address an environmental problem that may cause the destruction of the federal government itself.  The third branch, the judiciary, recognizes the …

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