Free Republic

In what is likely to become a landmark case, the United States Court of Appeals for the Fifth Circuit, in an en banc decision of all the judges in the circuit, struck down the Bureau of Alcohol Tobacco Firearms and Explosives (ATF) rule which changed the definition of a machinegun to include bump stocks. Thirteen judges were in the majority, with three judges dissenting. The case is Cargill v. Garland. This correspondent wrote about it previously. Here is a summation of how the sixteen judges ruled. From the opinion: Of the sixteen members of our court, thirteen of us agree...

Justice Elena Kagan begins her West Virginia v. EPA dissent by appealing not to the Constitution or precedent but to an imagined future of 4.6 million annual heat-related deaths, stronger hurricanes, drought, and other calamities familiar to connoisseurs of the disaster-film genre. *** West Virginia v. EPA challenged the federal agency on its decision to drastically reduce coal emissions by forcing plants relying on it to either suppress production of electricity, invest in cleaner energy facilities, or pay the government through a cap-and-trade scheme. “EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs (to...

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state. The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret...

The Supreme Court on Friday agreed to hear a challenge to the Environmental Protection Agency’s authority to regulate power plant emissions, in a case that legal scholars say could undermine Congress’s constitutional authority to delegate power to federal agencies. Some argue that such regulation — not just by the EPA, but in President Biden’s vaccine mandate as well — is unconstitutional because of a somewhat arcane legal doctrine called the “nondelegation doctrine.” This theory holds that Congress cannot delegate broad policymaking authority to government agencies. Why does this argument matter? Our research finds that if the Supreme Court were to...

The DACA cases squarely present the question of whether Congress delegated the authority to resolve such a major question about immigration policy This morning, Justice Kavanaugh issued a statement respecting the denial of cert in Paul v. United States. He praised Justice Gorsuch's "scholarly analysis of the Constitution's nondelegation doctrine" from Gundy. Kavanaugh observed that the nondelegation doctrine "may warrant further consideration in future cases." Kavanaugh carefully and concisely describes the relationship between the nondelegation doctrine and the major questions doctrine. He writes: "JUSTICE GORSUCH's opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union...

One of the most damaging yet least-known Supreme Court cases is J. W. Hampton, Jr., & Co. v. United States (1928). This case is much, much worse than the more well known case of Wickard v. Filburn. Wickard enables the bureaucracy to distort the commerce clause to do damage to our lives. Hampton enables the bureaucracy to exist. Without Hampton, Wickard is effectively repealed. A Twofer! Hampton also has another effect that is usually missed. There is a question as to when the Supreme Court decided it was fit to become involved in the process of creating law. This is...

In eighth-grade civics, students learn that Congress makes the law, the executive enforces the law, and the judiciary interprets the law. The Founders designed this separation to prevent one branch from getting too much power and threatening liberty. Yet in today’s sprawling administrative state, things aren’t so simple. Too often Congress passes laws stating vague objectives and leaves it to executive-branch officials to work out the controversial details—the real work of legislating. The courts have been reluctant to police this blurring of legislative and executive authority, but that may be changing. In Gundy v. U.S. on Thursday, three of the...

On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance. In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services. For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the...

It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional. By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money -- even, say, subsidize...