Professor of Law at Columbia University Law School Philip Hamburger discusses the rise of the administrative state and what, if anything, can be done to reduce its power.
“The administrative state is the leading threat to civil liberties of our era,” says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017).
“We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law.” Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.
Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to “deconstruct” the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives. And many of the president’s picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Read the rest of this entry »
Justice Thomas appears in an exhibit that was installed Sunday, a Smithsonian spokeswoman said Monday. The display honors both of the black justices who ascended to the pinnacle of the legal profession. The other is Thurgood Marshall.
Justice Thomas’ apparent omission irked conservative observers, who suspected an ideological bias among Smithsonian officials and called for the influential jurist’s inclusion in the museum.
Ronald D. Rotunda, distinguished professor of jurisprudence at the Dale E. Fowler School of Law at Chapman University, said Justice Thomas deserves to be recognized for his contributions to constitutional jurisprudence, his record of public service and his inspirational life story.
“Like Thurgood Marshall, he has been a very influential justice, and like Thurgood Marshall, he has risen from humble beginnings,” Mr. Rotunda said. Read the rest of this entry »
Free Speech Wins (Again) at the Supreme Court
David French writes:
… Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUS hadn’t ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:
[A]s we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.”
Indeed, governments are under an obligation to protect controversial expression. Every justice agrees. The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however … (read more)
Source: National Review
In two First Amendment rulings released this week, the justices argue they’re saving would-be censors from themselves.
Matt Ford reports: The U.S. Supreme Court handed down two notable victories for free-speech advocates on Monday as it nears the end of its current term. The two First Amendment cases came to the Court from starkly different circumstances, but the justices emphasized a similar theme in both rulings: Beware what the free-speech restrictions of today could be used to justify tomorrow.
In the first case, Matal v. Tam, the Court sided with an Asian-American rock band in Oregon named The Slants in a dispute with the U.S. Patent and Trademark Office. The PTO had denied band member Simon Tam’s application to register the group’s name as a trademark, citing a provision in federal law that prohibits the office from recognizing those that “disparage” or “bring … into contempt or disrepute” any “persons, living or dead.” Read the rest of this entry »
Below is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees. For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg. There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term. Those concerns have now been magnified and realized with the Trump election and filibuster elimination. Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court. New rumors have arisen this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.
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Supreme Court Justice Antonin Scalia visits Uncommon Knowledge for a wide ranging interview including the living constitution, Roe v. Wade, Congress’ relationship to the court, and to discuss his new book Reading Law: The Interpretation of Legal Texts.
To listen to an mp3 of the interview go here.
Replacing Scalia, a conservative icon, the ideological tilt of the bench is not likely to shift. He will restore a 5-4 majority that Republican appointees have held on the court for years.
Lisa Mascaro and David G. Savage report: President Trump’s nominee, Judge Neil M. Gorsuch, was confirmed Friday for a lifetime appointment to the Supreme Court, filling a 14-month vacancy after a dramatic Senate showdown that risked long-lasting repercussions to both institutions.
The confirmation will deliver a much needed political victory to Trump, whose administration is struggling in its first 100 days to make progress on many campaign promises amid infighting in the White House and on Capitol Hill.
Only three Democrats joined Republicans in voting to confirm Gorsuch. Sen. Joe Donnelly (D-Ind.), Sen. Heidi Heitkamp (D-N.D.) and Sen. Joe Manchin (D-W.Va.) all represent conservative-leaning red states that Trump won in the election. Sen. Johnny Isakson (R-Ga.), who is recovering from surgery, was absent.
It was the narrowest approval of a Supreme Court nominee since the 52-48 confirmation of Clarence Thomas in 1991.
Vice President Mike Pence presided over the vote as Republicans sat in their seats and onlookers, including conservative legal activists, filled the visitor galleries. But Friday’s vote, arguably Trump’s most enduring achievement to date, was largely upstaged by the U.S. airstrikes in Syria, which dominated news coverage.
The 49-year-old Gorsuch, who is expected to be sworn in on Monday, is a respected conservative who has worked for years on the U.S. 10th Circuit Court of Appeals in Denver. He is expected to bring a “textualist” approach to the court, relying on an exact reading of legal language.
Since he is replacing Scalia, a conservative icon, the ideological tilt of the bench is not likely to shift. He will restore a 5-4 majority that Republican appointees have held on the court for years.
“He’s going to make an incredible addition to the court,” said Senate Majority Leader Mitch McConnell (R-Ky.). “He’s going to make the American people proud.”
Democrats had staged a highly unusual filibuster to block the nominee. Republicans responded by changing long-standing Senate rules to allow filibusters of Supreme Court nominees to be broken with 51 votes rather than the previous 60.
Now Trump and future presidents will find it easier to choose Supreme Court nominees without needing much consent from the minority, opening the door to more ideological and partisan appointments. Read the rest of this entry »
It’s the Reid Option. Get it right. https://t.co/ngAXGt8zfp
— Laura Ingraham (@IngrahamAngle) April 3, 2017
WASHINGTON — Debra J. Saunders writes: A favorite truism in Washington these days is: “Be careful what you wish for, you may get it.” It tells the cautionary tale of how Republicans who wanted to run Washington got what they wanted and now must govern.
Here’s another quote for the swamp to consider: “Be careful what you scorn, you may someday become it.”
It has been a favorite pastime of elected Democrats to poke fun at the House Freedom Caucus because the rump is ideologically extreme and frequently self-destructive. Senate Democrats now seem poised to overtake the Freedom Caucus in the race away from moderation and the ability to shoot one’s party in the foot. To wit, Senate Minority Leader Chuck Schumer is primed to block the U.S. Supreme Court confirmation of Judge Neil Gorsuch.
I have told you people this a hundred times; underestimate Mitch McConnell at your own peril.
— Rick Wilson (@TheRickWilson) April 3, 2017
Gorsuch is the one decision President Donald Trump made and executed flawlessly. In September 2016, Trump released a list of 21 judges from which he pledged to pick a Supreme Court nominee. Gorsuch, 49, was on the list.
Gorsuch has such solid credentials that the American Bar Association unanimously rated him “well qualified” to serve on the U.S. Supreme Court — its highest rating. In other words, Trump did not pick a flame thrower.
George Washington University law school professor Jonathan Turley, who is no Trump fan, argues that Gorsuch is a smart choice because of the Coloradan’s intellect. In USA Today, Turley wrote that he does not expect Gorsuch to change his “deep and well-established jurisprudential views,” which are conservative. “However, I expect he will go wherever his conscience takes him regardless of whether it proves a track to the left or the right.”
As Gorsuch told the Senate Judiciary Committee during his confirmation hearings, “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge.”
In 2006 the Senate confirmed Gorsuch’s appointment to the Denver-based 10th Circuit Court of Appeals by unanimous consent. Schumer was in the Senate at the time. So how could Schumer tell the Washington Post on Thursday that it is “virtually impossible” to expect him and a majority of the Senate’s 47 other Democrats not to filibuster Gorsuch and deny him a simple up-or-down vote? Read the rest of this entry »
He guaranteed Neil Gorsuch elevation to the Supreme Court.
…Donald Trump for winning the election. Hillary Clinton for losing it. Mitch McConnell for holding open the high court seat through 2016, resolute and immovable against furious (and hypocritical) opposition from Democrats and media. And, of course, Harry Reid.
God bless Harry Reid. It’s because of him that Gorsuch is guaranteed elevation to the court. In 2013, as Senate majority leader, Reid blew up the joint. He abolished the filibuster for federal appointments both executive (such as Cabinet) and judicial, for all district and circuit court judgeships (excluding only the Supreme Court). Thus unencumbered, the Democratic-controlled Senate packed the lower courts with Obama nominees.
Reid was warned that the day would come when Republicans would be in the majority and would exploit the new rules to equal and opposite effect. That day is here.
The result is striking. Trump’s Cabinet appointments are essentially unstoppable because Republicans need only 51 votes and they have 52. They have no need to reach 60, the number required to overcome a filibuster. Democrats are powerless to stop anyone on their own.
And equally powerless to stop Gorsuch. But isn’t the filibuster for Supreme Court nominees still standing? Yes, but if the Democrats dare try it, everyone knows that Majority Leader McConnell will do exactly what Reid did and invoke the nuclear option — filibuster abolition — for the Supreme Court, too.
Reid never fully appreciated the magnitude of his crime against the Senate. As I wrote at the time, the offense was not abolishing the filibuster — you can argue that issue either way — but that he did it by simple majority. Read the rest of this entry »
Obama: Rule of Law, Due Process, Constitutional Fidelity, and Separation of Powers ‘Sets Our Country Back’Posted: June 23, 2016
President Obama said Thursday that the Supreme Court’s 4-4 decision that will block his 2014 executive actions on immigration “sets our country back,” and is “heartbreaking” for the millions of illegal immigrants still in the country.
“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system, and to allow people to come out of the shadows,” he said at the White House.
The 4-4 tie left in place a lower court ruling that found against Obama’s actions. But Obama cast the ruling as one that showed the Supreme Court was “unable to reach a decision,” and argued that it’s more evidence that the Senate needs to consider his nominee for the high court, Merrick Garland, so that the court cannot deadlock again.
“This is part of the consequence of the Republican failure so far to give a hearing to Mr. Merrick Garland,” Obama said.
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Now in its fourteenth edition, the Review is the first scholarly journal to appear after each SCOTUS term ends and the only one grounded in the nation’s first principles, liberty, and limited government
The Review has built quite a reputation over the years, and has earned some high praise from notable SCOTUS experts:
“Cato, with its emphasis on limited government and individual rights, has weighed in with a book of essays by academics and practicing lawyers that manages to skewer liberal and conservative justices alike.”
– Tony Mauro, Supreme Court correspondent, The National Law Journal and Legal Times
“Unquestionably, the definitive volume on the Supreme Court’s term.”
– Tom Goldstein, founder of SCOTUSblog (and co-chair of litigation and Supreme Court practice at Akin, Gump, Strauss, Hauer & Feld LLP)
In this year’s issue, Shapiro and other leading legal scholars analyze the 2014-2015 Supreme Court term, specifically focusing on the most important and far-reaching cases of the year, as well as upcoming cases to watch.
Cara L. Gallagher, Weekend Contributor, and Elliot Louthen write: This is a beautiful but restless time of year for SCOTUS junkies. The gorgeous, late summer sun sinks faster out of the sky signaling not only the end of the (best) season but also the nearness of the next Supreme Court term. While this reality thrills….(read more)
BREAKING: Kentucky Clerk Who Refused to Issue Marriage Licenses to Same-Sex Couples Held in Contempt of CourtPosted: September 3, 2015
AWR Hawkins writes: When the Supreme Court of the United States (SCOTUS) ruled that every state must recognize same sex marriages, they used a basis for judgement that will not easily stop at same sex marriage. In fact, it is a basis for judgement that should offer itself to national reciprocity of concealed carry permits and permit holders.
The SCOTUS legalized same sex marriage by finding a right which Justices Anthony Kennedy, Ruth Bader Ginsburg , Sonia Sotomayor, Stephen G. Breyer, and Elena Kagan ruled as beyond a state-by-state prerogative via the 14th Amendment.
Crucial in this ruling is the fact that same sex marriage–now recognized by the SCOTUS–is not the only right the 14th Amendment shields from state-by-state prerogative and/or recognition.
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.
“As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage,” they declared.
After receiving strong pushback, the newspaper’s editorial board, which is overseen by Editorial Page Editor John Micek, quickly revised its policy. Freedom of speech will be allowed — but only for a “limited” period of time. Read the rest of this entry »