Legal Issues

The Heritage Foundation works to restore the courts and legal system to their proper role, which is to protect individual liberty, equality under law, federalism, property rights, and free enterprise, and to enforce the constitutional limits on government. To that end, our legal experts seek to reign in an activist judiciary which usurps power from the political branches, to reform our civil justice system, and to reverse the dangerous trend to criminalize conduct that is either beneficial or better regulated by administrative means.

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Role of the Courts Policy in 2012 Elections
Issues 2012 provides candidates for elected office the ability to quickly identify the key issues of the day and present clear policy recommendations, supported by facts, for addressing them. Read More.
Voter Integrity Policy in 2012 Elections
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Our Research & Offerings on Legal Issues

Issue Brief posted May 22, 2012 by Andrew Grossman Dismissing Padilla v. Yoo: A Glass Half Empty?
The Ninth Circuit correctly dismissed Jose Padilla’s lawsuit against John Yoo, the former Department of Justice official who provided key analysis of legal questions arising from the war on terrorism. But being the traditionally liberal and oft-reversed Ninth Circuit, the court could not leave well enough alone and issued an…
Issue Brief posted May 10, 2012 by Paul Larkin The FOCUS Act Hearing: Unpersuasive Criticisms and Tacit Admissions
Thankfully, the law sometimes reflects common sense. Here’s an example: Innocent people ordinarily do not remain silent when accused of having committed a crime or some other misconduct. As the result, it is reasonable to infer that such an accusation is true if a person does not deny it. In…
Legal Memorandum posted May 8, 2012 by Paul Larkin The FOCUS Act and Environmentalism
Abstract: With regard to the Lacey Act, The Heritage Foundation and the Union of Concerned Scientists (UCS) can agree on one point: The act should be enforced through the civil justice system or the administrative process. In a recent paper, however, the UCS has…
Issue Brief posted May 7, 2012 by Paul Larkin The FOCUS Act and Federal Law Enforcement
An article by Jon Adler at the Police: The Law Enforcement Magazine Website,[1] written on behalf of the Federal Law Enforcement Officers Association (FLEOA), is quite critical of the recently introduced Freedom from Over-Criminalization and Unjust Seizures (FOCUS) Act of 2012. The thrust of the article is that…
Issue Brief on May 7, 2012 The Lacey Act: From Conservation to Criminalization
How did a law originally enacted to target poaching of migratory birds evolve to authorize an armed raid of a guitar factory in search of wooden veneers imported without the proper paperwork? The Lacey Act was the first federal wildlife conservation statute, narrowly targeted at the interstate sale in poached…
Backgrounder posted March 29, 2012 by David Muhlhausen, Ph.D., Christina Villegas Violence Against Women Act: Reauthorization Fundamentally Flawed
Abstract: Despite the fact that each state has statutes that punish domestic violence, the federal government intervened in 1994 with the Violence Against Women Act (VAWA). The Senate is now expected to consider the newest reauthorization of the act—S. 1925—which includes radical changes that…
Backgrounder posted March 22, 2012 by Robert Alt, Edmund Haislmaier The Obamacare Challenge: The Questions Before the Supreme Court and Their Portents for Congress
Abstract: Next week, the Supreme Court will hear challenges to Obamacare (the Patient Protection and Affordable Care Act) centered on the constitutionality of the legislation’s individual mandate and Medicaid expansion. From a legal perspective, the Court’s decision will…
Issue Brief posted March 20, 2012 by Charles Stimson, Elizabeth Garvey Juvenile Life Sentences: Constitutionality of Life Without Parole for Teenage Murderers
On Tuesday, March 20, the Supreme Court hears oral argument in two cases involving the constitutionality of sentences of life without parole (LWOP) for teenage murderers. The real issue before the Court is this: Will the Court again “find” or “invent” a heretofore undiscovered constitutional prohibition and thus strike an…
Issue Brief posted March 19, 2012 by Hans von Spakovsky Lessons from the Voter ID Experience in Georgia
The latest data compiled by the Secretary of State of Georgia, Brian Kemp, about the state’s experience with voter ID once again shows that the claims by opponents of voter ID are wrong. Contrary to their assertions that there are large numbers of American voters without…
Legal Memorandum posted March 19, 2012 by Nathaniel Stewart Brief Observations: A Review of Obamacare Briefs and the Original Meaning of the Constitution
Abstract: The heart of the Patient Protection and Affordable Care Act, popularly known as “Obamacare,” is an unprecedented mandate that individuals purchase health insurance. The briefs of the parties challenging Obamacare and their supporting amici…

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Legal Memorandum posted September 13, 2010 by Charles Stimson Legalizing Marijuana: Why Citizens Should Just Say No
Abstract: This November, California voters will consider a ballot initiative, the Regulate, Control and Tax Cannabis Act of 2010. Scientific research is clear that marijuana is addictive and that its use significantly impairs bodily and mental functions. Even…
Lecture posted May 5, 2004 by The Honorable Frank Williams Abraham Lincoln and Civil Liberties in Wartime
This month, several individuals detained as "enemy combatants" will make their appeals for freedom to the highest court in the land. Perhaps now, more than any other time in recent memory, the eyes of the world are intensely focused…
Legal Memorandum posted February 21, 2001 by Todd Gaziano The Use and Abuse of Executive Orders and Other Presidential Directives
In recent years, there has been renewed interest in the proper use and possible abuse of executive orders and other presidential directives. Many citizens and lawmakers expressed concern over the content and scope of several of President Bill Clinton's executive orders and land proclamations. Congress responded with hearings and the consideration of several bills designed to…
Backgrounder posted March 22, 2012 by Robert Alt, Edmund Haislmaier The Obamacare Challenge: The Questions Before the Supreme Court and Their Portents for Congress
Abstract: Next week, the Supreme Court will hear challenges to Obamacare (the Patient Protection and Affordable Care Act) centered on the constitutionality of the legislation’s individual mandate and Medicaid expansion. From a legal perspective, the Court’s decision will…
Backgrounder posted June 22, 2011 by Ray Walser, Ph.D., Jena Baker McNeill, Jessica Zuckerman The Human Tragedy of Illegal Immigration: Greater Efforts Needed to Combat Smuggling and Violence
Abstract: Over the past 10 years, traversing the U.S.–Mexico border illegally has become increasingly dangerous for would-be immigrants. Illegal immigrants face kidnapping, murder, and rape at the hands of violent drug cartels and ever more ruthless human smugglers. Crossing treacherous desert areas exposes the…
Legal Memorandum posted October 4, 2004 by John Baker The Sociological Origins of "White-Collar Crime
Are millions of middle-class Americans really white-collar criminals? The unauthorized importation of prescription drugs from a foreign country is a federal crime. So is "sharing" copyrighted material without permission. Assisting someone in the commission of a federal crime is…
Legal Memorandum posted March 19, 2012 by Nathaniel Stewart Brief Observations: A Review of Obamacare Briefs and the Original Meaning of the Constitution
Abstract: The heart of the Patient Protection and Affordable Care Act, popularly known as “Obamacare,” is an unprecedented mandate that individuals purchase health insurance. The briefs of the parties challenging Obamacare and their supporting amici…
First Principles Series Report posted June 23, 2006 by Daniel Dreisbach The Mythical "Wall of Separation": How a Misused Metaphor Changed Church–State Law, Policy, and Discourse
No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson's "wall of separation between church and state." Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement, and it has become the…
Legal Memorandum posted March 30, 2006 by John C. Eastman From Feudalism to Consent : Rethinking Birthright Citizenship
It is today routinely believed that under the Citizenship Clause of the Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizenship. However strong this commonly believed interpretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate…
Legal Memorandum posted December 9, 2009 by Randy Barnett, Nathaniel Stewart, Todd Gaziano Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional
…

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Issue Brief posted May 22, 2012 by Andrew Grossman Dismissing Padilla v. Yoo: A Glass Half Empty?
The Ninth Circuit correctly dismissed Jose Padilla’s lawsuit against John Yoo, the former Department of Justice official who provided key analysis of legal questions arising from the war on terrorism. But being the traditionally liberal and oft-reversed Ninth Circuit, the court could not leave well enough alone and issued an…
Issue Brief posted May 10, 2012 by Paul Larkin The FOCUS Act Hearing: Unpersuasive Criticisms and Tacit Admissions
Thankfully, the law sometimes reflects common sense. Here’s an example: Innocent people ordinarily do not remain silent when accused of having committed a crime or some other misconduct. As the result, it is reasonable to infer that such an accusation is true if a person does not deny it. In…
Legal Memorandum posted May 8, 2012 by Paul Larkin The FOCUS Act and Environmentalism
Abstract: With regard to the Lacey Act, The Heritage Foundation and the Union of Concerned Scientists (UCS) can agree on one point: The act should be enforced through the civil justice system or the administrative process. In a recent paper, however, the UCS has…
Issue Brief posted May 7, 2012 by Paul Larkin The FOCUS Act and Federal Law Enforcement
An article by Jon Adler at the Police: The Law Enforcement Magazine Website,[1] written on behalf of the Federal Law Enforcement Officers Association (FLEOA), is quite critical of the recently introduced Freedom from Over-Criminalization and Unjust Seizures (FOCUS) Act of 2012. The thrust of the article is that…
Issue Brief on May 7, 2012 The Lacey Act: From Conservation to Criminalization
How did a law originally enacted to target poaching of migratory birds evolve to authorize an armed raid of a guitar factory in search of wooden veneers imported without the proper paperwork? The Lacey Act was the first federal wildlife conservation statute, narrowly targeted at the interstate sale in poached…
Backgrounder posted March 29, 2012 by David Muhlhausen, Ph.D., Christina Villegas Violence Against Women Act: Reauthorization Fundamentally Flawed
Abstract: Despite the fact that each state has statutes that punish domestic violence, the federal government intervened in 1994 with the Violence Against Women Act (VAWA). The Senate is now expected to consider the newest reauthorization of the act—S. 1925—which includes radical changes that…
Backgrounder posted March 22, 2012 by Robert Alt, Edmund Haislmaier The Obamacare Challenge: The Questions Before the Supreme Court and Their Portents for Congress
Abstract: Next week, the Supreme Court will hear challenges to Obamacare (the Patient Protection and Affordable Care Act) centered on the constitutionality of the legislation’s individual mandate and Medicaid expansion. From a legal perspective, the Court’s decision will…
Issue Brief posted March 20, 2012 by Charles Stimson, Elizabeth Garvey Juvenile Life Sentences: Constitutionality of Life Without Parole for Teenage Murderers
On Tuesday, March 20, the Supreme Court hears oral argument in two cases involving the constitutionality of sentences of life without parole (LWOP) for teenage murderers. The real issue before the Court is this: Will the Court again “find” or “invent” a heretofore undiscovered constitutional prohibition and thus strike an…
Issue Brief posted March 19, 2012 by Hans von Spakovsky Lessons from the Voter ID Experience in Georgia
The latest data compiled by the Secretary of State of Georgia, Brian Kemp, about the state’s experience with voter ID once again shows that the claims by opponents of voter ID are wrong. Contrary to their assertions that there are large numbers of American voters without…
Legal Memorandum posted March 19, 2012 by Nathaniel Stewart Brief Observations: A Review of Obamacare Briefs and the Original Meaning of the Constitution
Abstract: The heart of the Patient Protection and Affordable Care Act, popularly known as “Obamacare,” is an unprecedented mandate that individuals purchase health insurance. The briefs of the parties challenging Obamacare and their supporting amici…

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Legal Memorandum on December 9, 2009 Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional
Legal Memorandum on February 17, 2010 Citizens United and the Restoration of the First Amendment
Lecture on February 24, 2010 Keeping a Republic: Overcoming the Corrupted Judiciary

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Experts on Legal Issues

Robert Alt
Director, Rule of Law Programs and Senior Legal Fellow
Andrew Grossman
Visiting Fellow
Todd Gaziano
Director, Center for Legal & Judicial Studies
Edwin Meese III
Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies
Charles Stimson
Chief of Staff and Senior Legal Fellow
Hans von Spakovsky
Senior Legal Fellow / Manager, Civil Justice Reform Initiative