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  • Commentary posted November 30, 2016 by John Malcolm On the Line on Election Day: Eight Key Issues Decided by next US President - the Supreme Court

    *Note: This piece is part of a larger article with contributions from several different policy experts. There is no question that the future of the supreme court is on the ballot. In recent years, the court has been closely divided on a number of contentious issues: the first and second amendments (Citizens United, Heller); religious liberty (Hobby Lobby); voting rights…

  • Commentary posted November 29, 2016 by John Malcolm Book Review: The War on Cops

    In The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe, Heather Mac Donald, a fellow at the Manhattan Institute, offers a scathing, data-driven account of the misguided and sometimes malicious attacks on the law enforcement community that are spreading like kudzu across the country—and of their consequences. Indeed, as I write this, reports out…

  • Commentary posted November 17, 2016 by James Wallner, John Malcolm On Judicial Nominations, Senators Are Meant to Advise, Not Rubber-Stamp

    With one seat vacant and several more likely to open up over the next four to eight years, the next president could shape the Supreme Court for a generation or more. But presidents aren’t the only ones who can shape the Court. The Constitution assigns joint responsibility to the U.S. Senate. Article II, section 2 stipulates that the president “shall nominate, and by and…

  • Commentary posted November 4, 2016 by John Malcolm, James Wallner On Judicial Nominations, Senators Are Meant to Advise, Not Rubber-Stamp

    With one seat vacant and several more likely to open up over the next four to eight years, the next president could shape the Supreme Court for a generation or more. But presidents aren’t the only ones who can shape the Court. The Constitution assigns joint responsibility to the U.S. Senate. Article II, section 2 stipulates that the president “shall nominate, and by and…

  • Testimony posted July 27, 2016 by John Malcolm Civil Asset Forfeiture: When Good Intentions Go Awry

    Testimony before the Mississippi Asset Forfeiture Transparency Task Force  July 20, 2016 Thank you for inviting me to testify today on Mississippi efforts to examine and reform its civil asset forfeiture laws. My name is John Malcolm. I am the Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and…

  • Commentary posted July 5, 2016 by John Malcolm Department of Labor’s Radical Reinterpretation of the Persuader Rule is Enjoined: A Victory for Fairness, Separation of Powers, and for the Attorney-Client Privilege

    Last week, Senior U.S. District Court Judge Sam Cummings of the Northern District of Texas issued a nationwide injunction to prevent implementation of the Department of Labor’s radical new reinvention reinterpretation of the ‘persuader rule.’ The court’s well-reasoned and thorough decision has put a halt, at least temporarily, to this egregious example of executive…

  • Commentary posted April 15, 2016 by John Malcolm On ObamaCare, is there one set of rules for Congress and another for citizens?

    Members of Congress, congressional staff, and their dependents are now in their third year of receiving health coverage through the Exchange the District of Columbia established for small businesses under the Affordable Care Act. Newly discovered documents illustrate how government officials broke numerous laws to make that happen—laws that apply to you and me, but…

  • 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…

  • Commentary posted February 17, 2016 by John Malcolm, Michael B. Mukasey The Importance of Meaningful Mens Rea Reform

    While it is conventional wisdom that the states have primary responsibility for protecting the health, safety, and general welfare of the people through the exercise of their “police power,” the federal government has taken an increasingly expansive view of its role in combating crimes, thereby supplementing—or supplanting—the traditional role exercised by state and local…

  • 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…

  • Commentary posted January 7, 2016 by John Malcolm Crocodile Tears From the President

    In a passionate — indeed, at one point tearful — speech Tuesday, President Barack Obama announced that he was taking a series of “executive actions” on gun control. We can all sympathize with the pain and loss suffered by the victims of gun violence and their loved ones. But sympathy is one thing; diagnosing the nature of the problem is another. And devising effective…

  • 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…