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  • 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…

  • Issue Brief posted September 29, 2015 by Daren Bakst The Federal Government Should Stop Limiting the Sale of Certain Fruits and Vegetables

    In June 2015, the United States Supreme Court decided Horne v. Department of Agriculture,[1] a case regarding the federal government’s authority to fine raisin growers who did not hand over part of their crop to the government. Fortunately, the court held that forcing growers to turn over their raisins was a taking of private property requiring just compensation. While…

  • 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…

  • Legal Memorandum posted January 28, 2015 by Thomas A. Lambert Respecting the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies

    The Basic Structure of American Antitrust Law When it comes to assuring low prices, high-quality goods and services, and product variety, there is no better regulator than market competition. Accordingly, the federal antitrust laws—chiefly, the Sherman and Clayton Acts—aim to promote vigorous competition among providers of goods and services. They do so by policing the…

  • Commentary posted January 14, 2015 by Hans A. von Spakovsky, Elizabeth Slattery The End of ‘Disparate Impact’?

    On January 21, the U.S. Supreme Court will hear oral arguments in a case involving the Obama administration’s favorite dubious legal theory, “disparate impact.” Then again, maybe it won’t — because the administration or some of its more radical allies in the civil-rights movement might snatch the case out of the court’s hands by engineering an eleventh-hour settlement.…

  • Commentary posted October 9, 2014 by Elizabeth Slattery The Roberts Court is Not 'Increasingly Conservative'

    Washington Post Supreme Court correspondent Robert Barnes claims that the Supreme Court has become more conservative during John Roberts’ nine-year tenure as Chief Justice. Such a characterization shows a misunderstanding of the role of courts. Rather than label the Roberts Court as “conservative” or “liberal,” it would be more accurate to describe the Court as…

  • Legal Memorandum posted September 18, 2014 by Elizabeth Slattery Overview of the U.S. Supreme Court’s October 2014 Term

    The Supreme Court of the United States begins its next term on October 6, 2014. The 2013 term featured a number of hot-button issues: campaign finance restrictions, racial preferences, pro-life speech outside abortion clinics, unions, legislative prayer, and a challenge to Obamacare’s Health and Human Services (HHS) mandate. Nearly two-thirds of the decisions were…

  • Commentary posted July 24, 2014 by Hans A. von Spakovsky Obamacare’s Almost Surely Going Back to the Supreme Court

    And there you have it, ladies and gentlemen: two different federal courts of appeal, issuing completely contradictory rulings on the very same day, on the very same issue. That’s what happened Tuesday. If nothing else, the dueling rulings should hasten the day when the next phase of litigation involving the Patient Protection and Affordable Care Act reaches the Supreme…