Yale Law School Pofessor Heather Gerken proposes a "detente" between advocates of federalism and defenders of national power. She makes good points. But I am not ready to make peace yet.
A decision handed down yesterday by the U.S. Court of Appeals for the Sixth Circuit.
Why we should take seriously the restrictions that the Constitution imposes on Congress's power to delegate to courts.
It may be unwise for local jurisdictions to become "sanctuary cities," but it is perfectly constitutional -- and as before, Justice Scalia provides the explanation why.
Secessionists often argue that independence will help their region prosper. By contrast, opponents routinely predict that secession will be an economic disaster. The evidence, however, is mixed. The economic consequences of secession depend on circumstances, and on the policies adopted by the new nation.
An unusual opening for a judicial opinion, for legal history fans.
I've been blogging about the constitutional restraints on Congress's ability to delegate power to the judiciary. One of the main delegations to the judiciary, though, is something that happens every day: the implicit delegation of interpretive power that takes place when Congress enacts an ambiguous statute. Do the non-delegation doctrine and the Inherent-Powers Corollary have anything to say about this?
Once we realize how broad the federal courts' modern-day federal common-lawmaking power is, it becomes apparent (in light of my Inherent-Powers Corollary) that a great many statutes delegating to the judiciary don't violate the non-delegation doctrine after all.
I argue in my recent paper that the Erie doctrine is not inspired by non-delegation principles -- and, in fact, that to seek the roots of Erie in the non-delegation doctrine is to get the order of analysis backwards.
The Federal Rules of Civil Procedure -- and many other sets of rules -- have been promulgated by courts, authorized by a delegation from Congress. Not only that, but Congress has said that court-adopted rules repeal contrary statutes. Is this consistent with the non-delegation doctrine?