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  • News Releases posted March 16, 2016 by John Malcolm Heritage Statement on SCOTUS Nomination

    "The Constitution does not say they are obligated or not obligated to consider a nominee to the Supreme Court.  It is silent.  All the Constitution says is that the president does not get to appoint justices to the Supreme Court without the 'advice and consent' of the Senate.  The Senate can give that or not -- it's up to the Senate."…

  • Legal Memorandum posted February 19, 2016 by John Malcolm Consideration of a Convention to Propose Amendments Under Article V of the U.S. Constitution

    Many Americans worry about the ever-increasing size, scope, and reach of the federal government. They point out that it spends beyond its means and for the most part operates outside of the strictures of the Constitution. They also point to various rulings by the Supreme Court of the United States that have effectively changed the structure and character of the…

  • Lecture posted January 21, 2016 by John Malcolm Persistent Forensics Lab Problems Undermine Faith in Our Criminal Justice System

    Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit has done a real service to the bar through his Georgetown Law Journal article “Criminal Law 2.0.”[1] As is typical of Judge Kozinski’s writings, it is clear, articulate, insightful, and provocative. In that article, he says, “there are disturbing indications that a non-trivial number of…

  • Commentary posted January 7, 2016 by John Malcolm Supreme Court Docket Promises Dramatic Decisions This Year

    The Supreme Court’s 2016 calendar promises plenty of excitement for court aficionados and profound “real-world” implications for the rest of society. The Affordable Care Act comes before the court — again — in Little Sisters of the Poor Home for the Aged v. Burwell. The sisters are a group of nuns who care for the elderly poor. They believe that the administration’s…

  • Testimony posted October 26, 2015 by John Malcolm Civil Asset Forfeiture: When Good Intentions Go Awry

    Testimony before the Pennsylvania State Senate Judiciary Committee October 20, 2015 John G. Malcolm Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies The Heritage Foundation Thank you for inviting me to submit written testimony on Pennsylvania’s efforts to examine and reform its civil…

  • Testimony posted September 28, 2015 by John Malcolm Civil Asset Forfeiture: A System in Need of Reform

    Testimony before the Oklahoma State Senate September 1, 2015 John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation Thank you for inviting me to testify today on Oklahoma’s efforts to examine and reform its civil asset forfeiture laws. My name is…

  • Legal Memorandum posted September 1, 2015 by John Malcolm The Pressing Need for Mens Rea Reform

    A number of criminal justice reform proposals have been introduced and are being actively discussed and debated on Capitol Hill these days. Most[1] (but not all[2]) of these proposals involve reforming criminal sentencing practices and prison reform. Notably absent, at least so far, have been any proposals to address mens rea (Latin for a “guilty mind”) reform. This is…

  • Testimony posted July 24, 2015 by John Malcolm Criminal Justice Reform

    Testimony before the Committee on Oversight and Government Reform U.S. House of Representatives July 15, 2015 John G. Malcolm Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow Edwin Meese III Center for Legal and Judicial Studies The Heritage Foundation Chairman Chaffetz, Ranking Member Cummings, and distinguished Members of…

  • Backgrounder posted July 14, 2015 by Alden Abbott, John Malcolm A Measured Approach to Patent Reform Legislation

    Patent rights, like other property rights, serve as a vital engine of economic growth, improving the quality—and length in the case of innovative medical devices and techniques and new pharmaceuticals—of Americans’ lives. Garage inventors and multinational companies alike spend time, effort, and money researching and developing new ideas and technologies that make…

  • Backgrounder posted May 21, 2015 by James Jay Carafano, Ph.D., Charles "Cully" Stimson, Steven P. Bucci, Ph.D., John Malcolm, Paul Rosenzweig Section 215 of the PATRIOT Act and Metadata Collection: Responsible Options for the Way Forward

    Updated May 29, 2015 The Real and Growing Threat of Terrorism Any debate about America’s counterterrorism capabilities must be conducted in the context of the actual terrorist threat the U.S. faces. Since 9/11, The Heritage Foundation has tracked Islamist terrorist plots and attacks, which now, after the recent shooting in Garland, Texas, total 68.[1] This figure,…

  • Legal Memorandum posted April 20, 2015 by John Malcolm Civil Asset Forfeiture: Good Intentions Gone Awry and the Need for Reform

    The chairmen of the Senate and House Judiciary Committees have stated that reforming federal civil asset forfeiture laws is a top priority for them.[1] The Department of Justice’s Office of the Inspector General (DOJ IG) has issued several critical reports on how some federal agencies and state and local authorities administer their forfeiture programs.[2] And Attorney…

  • Issue Brief posted December 5, 2014 by John Malcolm President Obama’s Executive Action on Immigration Sets a Dangerous Precedent

    It is no secret that President Obama is a supporter of the DREAM Act–legislation that has been debated and rejected numerous times by Congress. Yet, instead of doing the tough work of building trust, engaging in intense negotiating, and making compromises in search of a bipartisan solution, the President has decided to "go it alone" by implementing broad swathes of that…

  • Commentary posted November 25, 2014 by John Malcolm, Hans A. von Spakovsky President Barack Obama's Unilateral, and Unconstitutional, Move

    According to The Associated Press, as well as some Democratic representatives, President Barack Obama's plan to provide executive amnesty to about 5 million illegal immigrants is no different than unilateral actions by Presidents Ronald Reagan and Georgia H.W. Bush. However, this claim plays fast and loose with history. It also fails to explain the significant difference…

  • Testimony posted October 20, 2014 by John Malcolm Criminal Justice Reform: Suggested Changes for Tennessee

    LEGISLATIVE TESTIMONY Criminal Justice Reform: Suggested changes for Tennessee Testimony before the Tennessee Senate Judiciary Committee September 16, 2014 John G. Malcolm Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies The Heritage Foundation Thank you for the opportunity to speak to…

  • Legal Memorandum posted August 6, 2014 by John Malcolm Criminal Law and the Administrative State: The Problem with Criminal Regulations

    The relationship between criminal and administrative law dates to the turn of the 19th century, when Congress established early federal administrative agencies and a regulatory framework that included both civil and criminal penalties for failing to abide by the rules those agencies promulgated. However, as with federal criminal statutes, regulatory offenses that purport…