Legal news. Independent commentary. Federalist Society contributors and independent experts.


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Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions & Orders

Timothy Courtney May 22, 2017


(1)  Cooper v. Harris:  By a vote of 5-3 the judgment of the three-judge panel in the United States District Court for the Middle District of North Carolina is affirmed.  Per Justice Kagan's opinion for the Court:  "The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing district lines unless it has a compelling reasonIn this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority blackApplying a deferential standard of review to the factual findings underlying that decision, we affirm." [Read More]


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President Trump's Religious Liberties Executive Order - Podcast

Timothy Courtney May 15, 2017

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty” Executive Order also directs “the Secretary of Health and Human Services” to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”

An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. 


Texas flag

When do we acknowledge that they’re adults?

Christina Sandefur May 10, 2017

An 18-year-old Texan can make myriad decisions, many of which have more lasting consequences than the choice of whether to light up.  He or she can marry, drive, hold a job, join the military, serve on a jury, and decide whether or not to attend school, undergo surgery, get a tattoo, or vote.  Yet as courts have often emphasized, even in the realm of medicine, the goal of protecting people from themselves cannot justify taking their freedom away.  Such a “highly paternalistic approach” must yield to the right of competent adults to make their own choices. To deny these adults the right to choose whether or not to smoke is obviously not about protecting them from childhood ignorance—but about imposing government’s preferences on their lives.  [Read More]



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Photo Credit: Victoria/DollarPhotoClub (link)

Restoring Internet Freedom

Randolph J. May May 10, 2017

You’ve probably noticed – or likely soon will – that the latest phase of the more than a decade-long fight over “net neutrality” regulations has begun at the Federal Communications Commission. FCC Chairman Ajit Pai has released the text of a Notice of Proposed Rulemaking that the Commission on which the Commission vote on May 18.

The Commission says its NPRM proposes “to restore the Internet to a light-touch regulatory framework by classifying broadband Internet access service as an information service and by seeking comment on the existing rules governing Internet service providers’ practices.” [Read More]


professional censored speech

The ABA’s Garbled View of Free Speech

John J. Park, Jr. May 09, 2017

In 2011, Florida enacted the Firearm Owners’ Protection Act, which as Joseph Greenlee has written “protect[s] patients from unethical practices of licensed physicians,” who were intrusively asking patients whether they own a firearm, even when such ownership had nothing to do with the purpose of the patient’s treatment. In pertinent part, the Act states that medical professionals “should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home” unless they in “good faith believe[] that this information is relevant to the patient’s medical care or safety, or the safety of others.” Fla. Stat. § 790.338(2). Another provision prevents medical professionals from “discriminat[ing] against a patient based solely” on the patient’s ownership or possession of a firearm. Fla. Stat. § 790.338(5). [Read More]


handcuffs and gavel

The Rule of Lenity: A five-minute guide to navigating the intersection of administrative and criminal law

Erica Marshall May 01, 2017

It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.

Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs. [Read More]


Immigration and the Separation of Powers by Margaret D. Stock

A New Direction For Regulation In President Trump's First 100 Days

Susan E. Dudley April 28, 2017

Presidents since Franklin D. Roosevelt have set 100 days as a target for making early progress on their campaign promises and Donald Trump is no exception. While he hasn’t achieved some of the ambitious goals he set for himself in his “Contract with the American Voter,” there is at least one area where he has done much of what he committed to do, and that is regulation. Since he was inaugurated, President Trump has overturned more than a dozen regulations, rescinded numerous executive actions and established a system of regulatory oversight that, for the first time, incentivizes agencies to evaluate the accumulated stock of regulation before issuing new rules.

Read more at Forbes.

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