Regulatory Dark Matter: A Conversation with Wayne Crews

Threat of OverregulationThis interview with Wayne Crews explores the growing lawlessness in the administrative state's exercise of its powers. This regulatory "dark matter" ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.

The Migrating Power of the Purse

Chris DeMuth, an occasional contributor to this site, and yours truly have penned an exploratory article on “Agency Finance in the Age of Executive Government.”

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Politics in a Post-Modern Republic

Fight, two fists hitting each other over dramatic sky

What is the cause of our polarized politics?  Some blame one party or the other, and that is certainly plausible.  But I wonder if the problem goes deeper.  Our two parties are fighting for the future.   We are polarized because we disagree about what it would mean to make America better.  Beyond that, the arguments are so extreme because in our post-modern age we cannot agree about what it means to be reasonable.

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Immigration “Law” a la Obama: What a Wicked Game

Immigration Documents

A Ninth Circuit immigration decision bears crucially on the Supreme Court’s pending decision in Texas v. United States, better known as “the DAPA case.” The appellate court’s April 5 decision shines a harsh spotlight on the administration’s legal defense of its immigration policies.

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Amtrak Sidetracked Again

Amtrak

Late last week, a panel of the D.C. Circuit dinged Amtrak for the second time.  The case (Association of American Railroads v. Department of Transportation) involves several constitutional questions regarding Amtrak’s funky set-up and operation. Herewith a few preliminary words on one of them: delegation and due process.

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Congress as the Guardian of Individual Rights: A Conversation with Louis Fisher

congress-rightsThis episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.

Immigration Law, Metaphysics, and the APA

Wooden Gavel with book over white

Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA”  program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants.

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Justice Thomas: Mr. Republican

(Photo by David Hume Kennerly/Getty Images)

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

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Fedlandia

engineers

Among the intriguing AdLaw cases on the Supreme Court’s docket is U.S. Army Corps of Engineers v. Hawkes.  The Hawkes own some land 120 miles from the nearest navigable river, where they want to dig up peat moss. The feds think that this land is their land, or water. In any event, no. To figure out whether this or that parcel is actually water and thus subject to the feds’ jurisdiction under the Clean Water Act the Corps has created a process called a “Jurisdictional Determination” (“JD”), which involves expensive (for the enforcement target) fact-finding and then adjudication before an administrative body.

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Judge Garland’s “Restraint” and the Anti-Politics of the Administrative State

Judge Merrick Garland (Photo by Chip Somodevilla/Getty Images)

Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.

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