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  • Legal Memorandum posted September 21, 2016 by Paul Larkin Miranda at 50

    Some people are born into fame or notoriety. Others just get lucky. Ernesto Miranda belongs in the second category. Miranda v. Arizona In 1963, Phoenix, Arizona, police officers arrested Miranda for kidnapping and rape and took him to a local police station. After the complaining witness identified him, two officers questioned Miranda for two hours without informing him…

  • Legal Memorandum posted September 20, 2016 by Elizabeth Slattery, Tiffany Bates Overview of the Supreme Court’s October 2016 Term

    October 3, 2016, marks the beginning of a new Supreme Court term. The 2015 term included challenges to the use of racial preferences in college admissions, the Obama Administration’s immigration “executive action,” Texas’s law requiring abortion doctors to have admitting privileges at a local hospital, the Obamacare contraception mandate, and former Virginia Governor Bob…

  • Legal Memorandum posted September 8, 2016 by Paul Larkin The World After Chevron

    Administrative law has been a greenfield for scholars for quite some time because it stands at the confluence of American constitutional law and political theory regarding the proper structure of American government.[1] Most administrative law is made not by Congress, but by the federal courts, particularly the Supreme Court of the United States. The last major statute…

  • Special Report posted August 30, 2016 by Elizabeth Slattery, Stephanos Bibas, Josh Blackman, Richard W. Garnett The Legacy of Justice Antonin Scalia: Remembering a Conservative Legal Titan’s Impact on the Law

    Introduction Elizabeth H. Slattery In February 2016, Americans lost a legal titan with the passing of Justice Antonin Scalia. Conservatives mourn the loss of a standard-bearer, and liberals remember a worthy opponent. You may recognize the names of a handful of Supreme Court justices: the Great Chief Justice John Marshall, whose leadership of the Supreme Court in its…

  • Lecture posted August 4, 2016 by Noel J. Francisco A Law Clerk’s Reflections on Justice Scalia

    It’s a great honor to talk to you today about the legacy of my hero and my boss, the late Justice Antonin Scalia, who I had the deep privilege and honor to clerk for during the 1997 term. My remarks are going to be pretty simple. I’m going to tell a couple stories. I’m going to read some lengthy quotes from Justice Scalia’s opinions because what better way to remember…

  • Factsheet on April 26, 2016 Can Democrats Force a Vote on the Nomination of Merrick Garland?

    Recent press reports suggest that Senate Democrats may seek to use a motion to discharge to force a procedural vote on the nomination of Judge Merrick Garland to the U.S. Supreme Court. A motion to discharge gets around the committee process by attempting to bring the nomination directly to the Senate floor. However, motions to discharge are in order only when the Senate…

  • Lecture posted February 1, 2016 by The Honorable Carlos T. Bea Who Should Interpret Our Statutes and How It Affects Our Separation of Powers

    The interpretation of statutes is so often decisive in cases of national importance, which touch all our lives. Specifically, I want to talk with you about how courts are relinquishing the power to interpret Congress’s statutes through deference to executive agency interpretations. This undermines our system of separation of powers. It tends to decrease the powers of…

  • Makers of American Political Thought Series posted January 21, 2016 by Matthew J. Franck John Marshall: The Great Chief Justice

    John Marshall, the fourth Chief Justice of the United States, presided over the Supreme Court longer than any other occupant of that chair—34 years (1801–1835). Because the Court was a relatively insignificant legal forum when he arrived and an indispensable institution in American public life by the time he died, Marshall is justly the most celebrated judge in our…

  • Legal Memorandum posted January 14, 2016 by Paul Larkin, Jordan Richardson, John-Michael Seibler The Supreme Court on Mens Rea: 2008–2015

    Oliver Wendell Holmes, Jr., was on to something when he said that even a dog knows the difference between “being stumbled over and being kicked.”[1] Anglo–American criminal law traditionally has marked a person as a criminal only if he or she[2] committed a morally blameworthy act, known as the actus reus, along with an “evil” frame of mind, known as mens rea or…

  • Commentary posted December 3, 2015 by Hans A. von Spakovsky The Supreme Court Halts Hawaii's Discriminatory Election

    Great news out of the U.S. Supreme Court on the day after Thanksgiving. I wrote last week about the emergency appeal filed with the High Court by Judicial Watch on behalf of several Hawaiian voters trying to stop the ongoing, discriminatory election being held in Hawaii that excludes anyone who doesn’t met the definition of “Native Hawaiian.” Both the Hawaii federal…

  • Legal Memorandum posted September 17, 2015 by Elizabeth Slattery Overview of the Supreme Court’s October 2015 Term

    On October 5, 2015, the Supreme Court of the United States will begin its next term. The 2014 term featured a number of hot-button issues: free speech cases involving a “true threats” prosecution, the Confederate flag, and a local sign ordinance; property rights in the California raisin farmers’ case; religious freedom in a challenge to a prison’s ban on inmates growing…

  • Backgrounder posted June 22, 2015 by Daren Bakst A Decade After Kelo: Time for Congress to Protect American Property Owners

    On June 23, 2005, the United States Supreme Court held in Kelo v. City of New London[1] that the government can seize private property and transfer it to another private party for economic development. This type of taking was deemed to be for a “public use” and allowed under the Fifth Amendment of the United States Constitution. As a result, if a city claims that a…

  • Legal Memorandum posted May 7, 2015 by Elizabeth Slattery Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference

    The Schoolhouse Rock classic “Three Ring Government” teaches children about the separation of powers embodied in the Constitution by comparing the three branches of government to a three-ring circus. The song explains that “no one part [of government] can be more powerful than any other.” The President is the “ringmaster of the government,” Congress is tasked with…

  • Commentary posted May 1, 2015 by Edwin Meese III Why the Supreme Court should strike down Obamacare subsidies

    Two questions will dictate not only the future of healthcare, but also the balance of power between Washington, D.C., and the states, and the separation of powers between the federal branches. One concerns state sovereignty, the other the heckler's veto. When justices heard arguments regarding the Affordable Care Act (ACA, or Obamacare) in King v. Burwell on March 4,…

  • Legal Memorandum posted March 10, 2015 by Gene Schaerr, Ryan T. Anderson, Ph.D. Memo to Supreme Court: State Marriage Laws Are Constitutional

    Over the past year, four federal circuit courts—the Fourth, Seventh, Ninth, and Tenth Circuits—have ruled that the states and their people lack the ability under the federal Constitution to define marriage as it has always been defined: as the legal union of a man and a woman.[1] In their breathtaking sweep, those four rulings are reminiscent of the U.S. Supreme Court’s…