Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Lawyer And The Law

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

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Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

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Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?

The mighty Bone Cave Harvestman

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

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History’s Fickle Judgment

herbert hoover

Why is Herbert Hoover so reviled?

How should history rate Herbert Hoover, the nation’s 31st President? By today’s standards, Hoover was an anomaly. He rose, in Horatio Alger fashion, from being orphaned at age nine to the pinnacle of self-made success in business and finance. Although he was a Quaker, Hoover’s martial adventures in China’s Boxer Rebellion in 1900—at one point leading a detachment of U.S. Marines against Chinese rebels—rival the fictional exploits of Indiana Jones. In an era before ghost writers, Hoover was an accomplished author; his 1922 book, American Individualism, cemented the fame he had earned as a global mining engineer and international humanitarian relief administrator.

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Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

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Looking at Trump from Outside the Bubble

Donald Trump Hotel Letter T Luggage Cart Wagon Closeup Detail No

Everyone seems to be sharing their reflections on the election of Donald Trump as President (for example, here, here, and here), prompting me to weigh in with some of my own.

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The Decline of Self-Rule

public sector unions

The signs are all around us that the government envisioned by the Framers—self-rule by the people—is on the decline.

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A Lawless Labor Agenda

dept of labor

In prior posts (here and here), I looked at the pro-union agenda of the Obama administration’s National Labor Relations Board, and the anti-employer policies undertaken by the Equal Employment Opportunity Commission, Occupational Safety and Health Administration, and Department of Labor. The leadership of the Department by Thomas Perez deserves a closer look, for Secretary Perez has brazenly promoted the objectives of organized labor at the expense of the rule of law.

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Obama’s Nanny State for Employers

poppins

Obama’s employment law agenda consists of laying siege to employers’ management rights.

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Labor Pains

nlrb

When thinking about the National Labor Relations Board under President Obama, most observers recall the 2014 decision in NLRB v. Noel Canning, in which the U.S. Supreme Court unanimously ruled that Obama’s kangaroo-court “recess appointments”—made when the Senate was not actually in recess—were invalid.

Noel Canning was a huge setback for the administration, requiring the NLRB to reconsider 700 decisions rendered during the period in which it lacked a legitimate quorum.

Few have noticed, however, that the Board has not altered its course since that defeat.

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