Legal Memorandum posted July 24, 2014
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…
Lecture posted May 22, 2014
Congress and the New Administrative State
The administrative state begins with Congress. As the Supreme Court has observed, “an agency literally has no power to act…unless and until Congress confers power upon it.” So let me offer a few words about what previous Congresses have done to create the new administrative state and what Congress can do, today and tomorrow, to restore some limits.
Issue Brief posted April 25, 2014
Supreme Court 101: A Primer for Non-Lawyers
A common refrain from lawyers is that they will take a case “all the way to the Supreme Court,” but it is easier said than done to get the Supreme Court to review a case. The Supreme Court of the United States agrees to hear only a small number of cases each term, so the odds are stacked against most litigants. The reasons why the Court declines to hear particular cases…
Lecture on February 13, 2014
The Prospect for Freedom: Can the U.S. Sustain Its Experiment in Self-Government?
Some years ago, I was in China at one of the major universities and speaking to a forum of Chinese CEOs. After the final banquet, I walked back to the lecture hall with the dean of the business school.
“Let me ask you a question I wouldn’t ask in public,” he said. “What am I missing? We in China are fascinated with the Christian roots of your Western past—for the sake of…
Legal Memorandum posted February 12, 2014
An Executive Unbound: The Obama Administration’s Unilateral Actions
“We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”
—President Barack Obama
The rule of law is a bedrock principle of Anglo–American jurisprudence. It stands for the belief that all—including government officials—are subject to the law and not above it. America’s Founding Fathers understood this principle, and the…
Legal Memorandum posted January 23, 2014
Harris v. Quinn: An End to the Forced Unionization of Home-Care Workers?
On January 21, 2014, the Supreme Court of the United States heard oral argument in Harris v. Quinn, a challenge to states' authority to require that home-based workers submit to an exclusive representative for collective bargaining—i.e., a labor union. Organizing home-based workers has been among the labor movement's greatest prospects for adding to its diminishing ranks,…
Lecture posted January 7, 2014
Defending the Senate’s Constitutional Duty to Advise and Consent to Presidential Appointments
I’m very grateful for the opportunity to speak about the Recess Appointments Clause today. In the small town of Alpine, Utah, where I live, we speak of little else. It is of great interest to those of us who watch the Supreme Court to see this case get teed up.
I was very happy, of course, when the Supreme Court of the United States granted certiorari to review this…
Legal Memorandum posted October 9, 2013
The Supreme Court Considers the President’s Power to Make Recess Appointments
In its new term, the Supreme Court of the United States will consider National Labor Relations Board v. Noel Canning, a challenge to President Barack Obama’s January 4, 2012, recess appointments to fill three National Labor Relations Board (NLRB) vacancies. At the time of these appointments, every three days, the Senate was conducting pro forma sessions during which no…
Lecture posted June 25, 2013
How to Limit Government in the Age of Obama
The Role of Congress
Joseph Postell, PhD: Limiting government in the age of Obama is a tall order, but it is a tall order not simply because of who occupies the White House. It is a tall order because it requires limiting government in the age of the administrative state, which stacks the deck against those hoping to place limits on government.
To mount an effective…
Center for Policy Innovation Lecture posted March 14, 2013
Confronting Washington's Administrative State: A Renewed Role for the States
While the Constitution continues to be read, and its principles known, the States must, by every rational man, be considered as essential component parts of the Union; and therefore the idea of sacrificing the former to the latter is totally inadmissible.
—Alexander Hamilton, 1788 
Federalism is rooted in the knowledge that our political liberties are best assured by…