Supreme Court Justice Cites Work of Heritage Legal Fellows in 2 Cases


Supreme Court Justice Cites Work of Heritage Legal Fellows in 2 Cases

June 28th, 2019

Paul Larkin joined Heritage in 2011 after a distinguished career in public service. Willis Bretz

In two separate opinions for the cases of Gamble v. United States and Kisor v. Wilkie, Supreme Court Justice Neil Gorsuch cited research articles written by Heritage Foundation legal scholars.

The first case involved convicted felon Terance Gamble, who in 2015 was stopped for a faulty tail light when police officers found drugs and a gun in the vehicle. The state of Alabama proceeded to charge Gamble for possession of an illegal firearm, resulting in a year in prison. Following his conviction, the U.S. government charged Gamble for the same crime and extended his sentence. Gamble’s case eventually reached the U.S. Supreme Court, where he argued he was being charged twice for the same crime, violating his 5th Amendment protections against “double jeopardy” convictions. 

The Supreme Court ruled against Gamble, 7-2. The justices agreed on the “separate sovereigns doctrine,” which recognizes federal and state governments as separate entities. This doctrine rules out double jeopardy when a person is charged separately by the two governments.

Justices Ruth Bader Ginsburg and Gorsuch were the two dissenting votes. Gorsuch argued precedent, though important, should not be the determining factor in every case the Supreme Court hears due to the changing nature of the legal system.

Gorsuch referenced the work of Larkin to back up his dissent. 

Larkin discusses the changing dynamic of the federal legal system in an article, “Public Choice Theory and Overcriminalization,” published by the Harvard Journal for Law and Public Policy. He writes on the expansion of the federal government through laws and statues, analyzing the incomprehensible number of restrictions Americans face today.

“There are so many federal criminal laws that no one, including the Justice Department, the principal federal law enforcement agency, knows the actual number of crimes,” Gorsuch wrote about Larkin’s article.

The second case, Kisor v. Wilkie, questioned the role of federal agencies in their creation and interpretation of regulations. Former Marine James Kisor, who served during the Vietnam War, sought disability from Veterans Affairs in 1982 due to the onset of PTSD from his time in service; the VA rejected his claim that same year. In 2006, he attempted to claim disability again and received it. Kisor, however, argued that he should receive retroactive payments due to his rejection in the 1980s. The VA argued Kisor used new information in his appeal, and so he did not qualify for the additional funding according to its interpretation of the regulations.

The Supreme Court ruled in favor of Kisor. In his concurring opinion, Gorsuch cited an article written by Heritage legal scholars Paul Larkin and Elizabeth Slattery, “The World After Seminole Rock and Auer.” The article urged the Supreme Court to overrule an old decision holding that a federal court must accept an agency’s interpretation of one of its own vague or ambiguous rules.  

Gorsuch argued the same sentiment, quoting from Larkin and Slattery in his defense of Kisor that the Auer decision created “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.” While Auer was not overturned by the court, the majority of justices did not defend the VA in this particular case.

In her role at Heritage, Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues as a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies. She also hosts the SCOTUS 101 podcast, where she analyzes cases before the Supreme Court and regularly interviews judges.

Larkin joined Heritage in 2011 after a distinguished career in public service. He served as assistant to the solicitor general in the Department of Justice from 1984 to 1993, where he argued 27 cases before the U.S. Supreme Court. He later served as counsel for the Senate Judiciary Committee and also worked at the Environmental Protection Agency as the Special Agent-in-Charge in the criminal investigation division.

Today, Larkin is the John, Barbara and Victoria Rumpel senior legal research fellow in Heritage’s Meese Center for Legal and Judicial Studies.

“By any measure, Paul Larkin is an exceptional scholar,” says John Malcom, vice president of Heritage’s Institute for Constitutional Government, director of the Meese Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson senior legal fellow.

“Paul is frequently called upon to testify before Congress, meet with executive branch officials, and participate in public policy debates. His work has been widely read, cited, and relied upon by lawmakers, academics, and Supreme Court justices. It is a pleasure and a privilege to work with a scholar of his magnitude.”

In addition to his Harvard report, Larkin has also had multiple other reports recently published by legal journals. On June 10, “OMB’s New Approach to Agency Guidance Documents,” was published by The Regulatory Review. This article discusses the importance of the White House Office of Management and Budget’s new interpretation of the Congressional Review Act.  

Another one of Larkin’s essays, “A New Law Enforcement Agenda for a New Attorney General,” was published on June 11 by the Georgetown Journal of Law and Public Policy. This essay discusses potential focuses for the U.S. attorney general when he assumes office. 

Larkin, in conjunction with Dr. Bertha Madras, Ph.D., wrote “Opioids, Overdose, and Cannabis: Is Marijuana An Effective Therapeutic Response to Opioid Abuse Epidemic?” in the Georgetown Journal of Law and Public Policy. This essay explains how many argue marijuana may be an acceptable substitute to opioids, but there is not currently enough evidence to prove this theory. Larkin and Madras advocate for expanded research on the subject.