Click here to access the full PDF version of Why Edmund Burke Would Overrule Roe
I. Introduction
In June Medical Services L.L.C. v. Russo, Chief Justice Roberts looked to the writings of Edmund Burke to reason that the Supreme Court should retain an abortion precedent. He argued that judges should adopt “a basic humility that
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Is it possible to circumvent § 230 with contract claims?
The Communications Decency Act, 47 U.S.C. § 230, has become a point of contention for many of those who believe in free and open discourse on social media. While Prager University v. Google LLC reminded all of us that the First Amendment does not apply to the actions of online service providers,[1] several…
A Former Congressional Staffer’s Plea to Judges: Do Not Rely on Legislative History
INTRODUCTION
I am not the first, nor will I be the last, person within the legal profession to look down on legislative history as a tool of statutory interpretation. The late Justice Scalia famously derided the use of legislative history, calling it illegitimate. His distaste for modern legislative history was so strong he famously refused…
Inferior or Principal? The Current Appointments Clause Jurisprudence Just Isn’t Enough
INTRODUCTION
The United States needs a clearer guiding framework regarding which Officers are principal and which are inferior. Modern Appointments Clause jurisprudence is, at best, confusing and, at worst, incoherent. This is both the result and cause of sloppy legislative crafting and an overexpanded administrative state, and the Court is reluctant to create a firm…
Disapproval Resolutions Are Not The Answer To Executive Overreach
The House of Representatives voted 245-182 on Tuesday to overturn President Trump’s national emergency declaration to fund his long-promised border wall.[1] This is the latest of several efforts by Congress to rescind executive action via joint resolutions of disapproval. Last year, Congress tried to rein in executive overreach through unsuccessful attempts to amend Section…
Williamson County’s Cohens Problem
On Wednesday, October 3, the Supreme Court will hear oral argument in Knick v. Township of Scott, to decide “[w]hether the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims . .…
The Major Rules Doctrine
“I’m not a skeptic of regulation at all. I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that’s outside the bounds of what the laws passed by Congress have said. And that is what is at the root of our administrative law jurisprudence.”
-Judge Brett Kavanaugh before the Senate Judiciary Committee, Sept.…
The Importance Of Writing “For Tomorrow”
In a 2002 interview, Justice Ruth Bader Ginsburg discussed the importance of dissent.[1] “[T]he greatest dissents do become court opinions and gradually over time their views become the dominant view,” she remarked.[2] “So that’s the dissenter’s hope: that they are writing not for today but for tomorrow.”[3]
Justice Ginsburg is right. And…
Controversy Over Re-introducing The Citizenship Question To The Decennial Census
For the 2020 census, the Department of Commerce has proposed asking respondents whether they are citizens of the United States. Since inclusion of the citizenship question was announced in March, six federal lawsuits have been filed demanding that judges stop the Department of Commerce from asking on the 2020 census about respondents’ citizenship. A judicial…