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  • 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…

  • Commentary posted July 28, 2014 by John Malcolm The Case For the Smarter Sentencing Act

    [Mr. Malcolm’s article is adapted from his presentation on the Smarter Sentencing Act to the Senate Republican Policy Committee on March 31, 2014. Professor William Otis of Georgetown Law School took the opposing view. His adapted remarks are also published in this Issue at 26 FED.SENT’G REP. 302 (2014). —Editor] As a former Assistant United States Attorney and Deputy…

  • Legal Memorandum posted July 24, 2014 by John Malcolm, Elizabeth Slattery Boehner v. Obama: Can the House of Representatives Force the President to Comply with the Law?

    A‌rticle I of the Constitution vests “All legislative powers herein ‌granted” in Congress, while Article II, section 3 requires that the President “shall take Care that the Laws be faithfully executed.” But what happens when the President fails to execute the law? Time and again, President Barack Obama has pushed the limits of this duty, acting unilaterally to change or…

  • Backgrounder posted January 9, 2014 by John Malcolm, Andrew Kloster A Balanced Approach to Patent Reform: Addressing the Patent-Troll Problem Without Stifling Innovation

    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 and money researching and developing new ideas and technologies that make people’s…

  • Commentary posted December 11, 2013 by John Malcolm Over-criminalization undermines respect for legal system

    Despite some of the sharpest political divisions in memory, Congress managed to mount one noteworthy bipartisan effort this year. Since May, the Over-criminalization Task Force, comprising five Republicans and five Democrats from the House Judiciary Committee, has worked diligently to develop recommendations that will address some of the fundamental problems plaguing the…

  • Backgrounder posted August 26, 2013 by John Malcolm Labor Department’s Persuader Rule Undermines Employers’ Rights and Threatens the Attorney–Client Relationship

    Union membership in America is in decline, plunging from 20 percent of workers in 1983 to 11.3 percent (and only 6.6 percent among private-sector workers) in 2012.[1] It is no secret that the Obama Administration is working overtime to reverse this trend.[2] The National Labor Relations Board (NLRB) has become a powerful instrument in the hands of an Administration eager…

  • Commentary posted August 1, 2013 by John Malcolm, Hans A. von Spakovsky Bradley Manning Received Exactly the Justice He Deserved

    No one should be surprised that Bradley Manning was found not guilty of aiding the enemy. Proving in court that such a violation took place is very difficult. Besides, Manning had already pleaded guilty to lesser charges and was found guilty of multiple counts of violating the Espionage Act when he disclosed classified information that was published on the Internet and…

  • Testimony posted June 19, 2013 by John Malcolm Defining the Problem and Scope of Over-criminalization and Over-federalization

    Testimony before the Committee on the Judiciary Over-criminalization Task Force U.S. House of Representatives June 14, 2013 John G. Malcolm Rule of Law Programs Policy Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow The Heritage Foundation     Mr. Chairman, Mr. Ranking Member, and other Members of Congress: Thank you for the…

  • Backgrounder posted February 21, 2013 by John Malcolm, Jessica Zuckerman, Andrew Kloster New National Counterterrorism Center Guidelines Require Strong Oversight

    In March 2012, the Director of National Intelligence (DNI), the U.S. Attorney General, and the director of the National Counterterrorism Center (NCTC) developed updated guidelines on data sharing and retention of “terrorism information” in federal databases.[1] These new guidelines, which have not yet been implemented, were spurred in part by the counterterrorism failures…

  • Backgrounder posted January 17, 2013 by John Malcolm, Jennifer A. Marshall The Newtown Tragedy: Complex Causes Require Thoughtful Analysis and Responses

    All Americans, from whatever walks of life and of whatever political or philosophical convictions, abhor the death of innocent human beings and had a visceral reaction of shock and pain to the killing of 20 schoolchildren and six staff members in Newtown, Connecticut, in December 2012. In responding to this attack, Americans must consider with great reflection and care…

  • Commentary posted December 8, 2012 by John Malcolm About Time! Review Board Recommends Firings Over Operation Fast & Furious

    The Professional Review Board of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has reportedly recommended firing four managers — William Newell, Mark Chait, William McMahon, and George Gillett — and disciplining two lower-level employees — David Voth and Hope MacAllister — for their roles in Operation Fast and Furious. The panel’s recommendations will now…

  • Issue Brief posted December 5, 2012 by John Malcolm Indian Tribal Lands and the Carcieri Fix

    Retiring Senator Daniel Akaka (D–HI) has indicated, with the support of Senate Majority Leader Harry Reid (D–NV) and the Obama Administration, that he intends to push his “Carcieri Fix” (S. 676) during the lame-duck session of Congress. The bill would give the Secretary of the Interior largely unbridled discretion to turn over tens of thousands of acres of private land to…

  • Issue Brief posted November 13, 2012 by John Malcolm, Jessica Zuckerman Foreign Intelligence Surveillance Amendments Act of 2008

    In September, the House of Representatives passed the reauthorization of the Foreign Intelligence Surveillance Amendments Act of 2008 (FAA), which made key updates to the authorities granted to U.S. intelligence under the Foreign Intelligence Surveillance Act (FISA). Reauthorization of the bill, which expires at the end of this year, has yet to be taken up by the Senate.…

  • Commentary posted October 3, 2012 by John Malcolm Univision Does Its Homework

    Univision has done some outstanding investigative reporting on Operation Fast and Furious, the ill-conceived and disastrously-executed gun-smuggling operation designed to identify the kingpins of a Mexican fire¬arms trafficking network.  Now comes a voluminous report from the Justice Department’s Inspector General, which criti¬cizes the Bureau of Alcohol, Tobacco,…

  • Issue Brief posted September 20, 2012 by John Malcolm Showstopper: Department of Justice Report on Operation Fast and Furious

    The Inspector General (IG) of the U.S. Department of Justice (DOJ) has come out with a long-awaited report about Operation Fast and Furious. As described in a previous Legal Memorandum, this was an ill-conceived gun-smuggling investigation to identify the kingpins of a firearms trafficking network—and the Mexican cartel leaders behind that network—that resulted in the…