Supreme Court
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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CONTINUE READINGDoes 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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CONTINUE READINGIs 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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CONTINUE READINGFederalism 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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CONTINUE READINGFrom 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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CONTINUE READINGElection 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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CONTINUE READINGDeciding 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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CONTINUE READINGThreat Assessment: The Supreme Court & the Environment
The current bench is tilted against environmental regulation. It could get worse.
In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.” In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation. That could hold true well into the 2030s, depending on who leaves the …
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CONTINUE READINGJust in From the Supreme Court
The Court refused to hear two cases, but with noteworthy separate opinions.
The Supreme Court declined to hear two cases today. Neither case was earthshaking, but conservative Justices wrote revealing separate opinions. The case with the greatest import for environmental law was Paul v. U.S. The facts of the case had nothing to do with environmental law, but the issue involved has large implications for environmental statutes. …
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CONTINUE READINGHolmes, Brandeis, and the ‘Great Ponds’ Debate
Some issues are perennial, like property rights v. public rights in water.
I suppose most of you, like me, have never heard of the Watuppa Ponds. But in 1888, a battle broke out over the legality of their use to supply drinking water for a nearby city. The issue closely divided Massachusetts’s highest court, and led to a heated debate in the recently launched Harvard Law Review …
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