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


Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

"Delegation Reconsidered" Paper Review

John Shu May 26, 2016

Ron Cass, former dean of Boston University School of Law and President of Cass & Associates, published a paper entitled, “Delegation Reconsidered:  A Delegation Doctrine For The Modern Administrative State.”  The paper may be found here

The “delegation doctrine,” also referred to as the “non-delegation doctrine,” is usually defined as the general principle that one branch of government (e.g. the legislature) may not “delegate” or give up its constitutional responsibilities to another branch of government (e.g. the executive branch), an administrative entity, or a private entity; to do so would be a violation of separation-of-powers.    [Read More]



An Additional Point on Racial Mirroring

Roger B. Clegg May 26, 2016

Kudos to Professor Sidhu for his fine article on “Racial Mirroring”—the notion that, say, police departments should weigh race in their hiring in order to have a workforce that “looks like” the surrounding community—and how it “violates the Equal Protection Clause, perpetuates harmful racial stereotypes, and produces significant legal and social costs.” 

I would add only that, as dubious as such a practice is as a constitutional matter, it’s even harder to justify under the most relevant federal civil-rights statute, namely Title VII of the 1964 Civil Rights Act. I’ve discussed the problems with any nonremedial justification for racial preferences under Title VII in another Federalist Society publication here (part III, starting on p. 981). 


FCC Front Door

FCC Enforcement and Merger Review Actions Violate Rule of Law Principles

The rule of law depends upon adherence to a system of binding rules of certain process norms, or what we often call “due process of law.” One of those process norms requires that the law, in order to be binding, provide sufficient clarity, predictability, and equal applicability. The rule of law safeguards against excessive and arbitrary exercises of government power.

These process norms deserve close attention when it comes to analyzing the regulatory and enforcement activities of administrative agencies. Recent activities of the Federal Communications Commission (FCC) warrant particularly close consideration. In The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses, published May 23 in the Federalist Society Review, we argue that the enforcement and merger review activities of the Commission undermine important rule of law principles.  [Read More]


gavel with stacks of money

New Book Review: Dark Money and Plutocrats United

Steve Klein May 25, 2016

Bill Maurer from the Institute for Justice brings years of experience in campaign finance law and free speech to the latest issue of the Federalist Society Reviewreviewing two of the latest books on campaign finance policy, Jane Mayer’s Dark Money and Rick Hasen’s Plutocrats United. Expertise is thankfully ubiquitous at FedSoc, but Bill’s wit is one of a kind. His review is a must-read, and be sure to set your coffee down first. 

Supreme Court columns

Restoring Public Trust: In Foster v. Chatman, Supreme Court Strikes Blow Against Prosecutorial Misconduct

Evan Bernick May 24, 2016

Prosecutors are entrusted with truly awesome power. They can have citizens investigated, arrested, indicted and put on trial for their very lives. Prosecutors are also agents of the people—they are, as Supreme Court Justice George Sutherland once put it, “representative[s] not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Accordingly, prosecutors are bound by ethical rules to act with candor towards judicial tribunals and constitutionally prohibited from acting in ways that undermine the impartiality of judicial proceedings. [Read More]

2008 Financial Crisis

Bank of America Penalty Thrown Out in Crisis-Era ‘Hustle’ Case

Timothy Courtney May 24, 2016

Yesterday, the Court of Appeals for the 2nd Circuit threw out major penalties levied against Bank of America in connection with the financial crisis. The Wall Street Journal and Bloomberg have more.

Statement from Peter Wallison, the Arthur Burns Fellow in Financial Policy Studies at the American Enterprise Institute:

The appeals court decision in the so-called Hustle case, overturning a District Court’s decision against Bank of America, is important for the appellate court’s close reading of the law of fraud, but it won’t have much effect on the many cases in which large banks settled with the government for huge sums, estimated by the New York Times at $45 billion. 

The Hustle case was about the sale of whole mortgages to the GSEs Fannie Mae and  Freddie Mac; the large bank settlements were in cases involving the sale of mortgage-backed securities (MBS) and thus involved the much stricter liability laws that cover the sale of securities. Most press reports have missed this refinement. 

Still, there are reasons to believe that the banks settled with the government too soon and for much too much. There are a few cases involving foreign banks and the same securities issues that are on appeal, possibly because these foreign banks have less to fear than US banks from the adverse publicity of litigating with the US government. 

The appeal documents in some of these cases reflect what may have been sustained bias against the banks by the US District Judge who tried all the cases. In at least one of the cases on appeal, the appellants have asked that if the decision is overturned the appellate court should send the case back to a different judge. 

If in fact the cases are reversed on appeal, they will point to a familiar fact, that judges, like the rest of us, watch the news and are influenced by the sensational and often biased reporting that occurs there. The financial crisis was a much more complicated story than most Americans—including judges—have been led to believe.

For more from Wallison on the financial crisis, check out his book, Hidden in Plain Sight: What Really Caused the World's Worst Financial Crisis—and Why It Could Happen Again 


Bank settlements include ‘donations’ to ‘community development’ organizations

Timothy Courtney May 23, 2016

Nicholas Rosenkranz writes for the Volokh Conspiracy:

The Justice Department has celebrated its settlements with major banks for their conduct leading up to the subprime mortgage crisis, and the headlines have trumpeted the staggering total sums: Bank of America $16.65 billion, Citigroup $7 billion, JPMorgan $13 billion. What is less well known is that some of this money — amounting to hundreds of millions of dollars — is designated for “donation” to various “community development” organizations that were neither parties to the case nor victims of the alleged wrongdoing. Investor’s Business Daily has characterized these payments as “political payoffs to Obama constituency groups,” and Congress is now considering banning this practice with theStop Settlement Slush Funds Act of 2016.

In addition to the obvious potential for cronyism and corruption, this practice also implicates a constitutional question. The Constitution provides: “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” If the banks had paid this money to the United States — which is, after all, the plaintiff in these cases — then the money would have gone into the Treasury. And if, subsequently, the president or the attorney general favored using this money to subsidize these “community development” organizations, they would have had to request an appropriation from Congress; doling out such money “without an appropriation . . . violates the Constitution,” as the president was reminded just last week. By providing for payments directly from the banks to the organizations, these settlement provisions circumvent the Appropriations Clause and cut Congress out of the loop.

Read the full article



Department of Labor flag

Department of Labor's Final Overtime Regulations Rundown

Tammy D. McCutchen May 19, 2016

Yesterday, the Department of Labor set the minimum salary level for the administrative, executive and professional overtime exemption at $913 per week ($47,476 annualized) – up from the current $455 per week ($23,660 annualized), but down from the proposed $970 per week ($50,440 annualized).

The decrease from $50,440 to $47,500 allows the Administration claim that they listened to the concerns of business, but does not actually respond to the concerns raised by non-profits, small businesses, colleges and universities, state and local governments and low-profit industries such as restaurants and retail.

$47,500 is still way too high – unprecedented in the 77-year history of the regulations. It’s higher than the current minimum salary levels for exemption under California and New York law – two high-cost of living, high salary states. Just like the minimum wage, states may set higher standards for exemptions from state overtime requirements. In California, the minimum salary level is currently $41,600 annually. In New York, the minimum salary level is $35,100 annually. Thus, the Department’s $47,500 salary level is: $5,900 higher than the salary level required for exemption in California; and $12,400 higher than the salary level required in New York. [Read More]


Supreme Court columns

Administrative Law and Judicial Duty: Justice Thomas’ Principled Stand Against Arbitrary Power

Evan Bernick May 18, 2016

Few constitutional scholars would deny that the Supreme Court has made tragic—even shameful—errors in interpreting the Constitution. Decisions like Dred Scott v. Sanford (1857), Plessy v. Ferguson (1896) and Buck v. Bell (1927) are nearly universally reviled—scholars who agree on little else agree that the Court in these cases got the meaning of the Constitution wrong. If the Court has erred in interpreting the meaning of the Constitution, it must also be possible for the Court to err by promulgating doctrines to guide judicial decision-making which are inconsistent with the Constitution’s meaning.

Yet the Court on Monday denied certiorari in United States Aid Funds v. Bible, a case which would have given the Court an opportunity to evaluate a doctrine that strikes at the core of “the Judicial Power” authorized by Article III and the Constitution’s guarantees of due process of law. In his lone dissent from the Court’s decision to deny review, Justice Clarence Thomas called for the Court to reconsider “Auer deference”—an administrative law doctrine that commands sweeping deference to federal agencies’ interpretations of regulations that the agencies themselves issue. In order to perform their constitutional duty and to safeguard Americans against arbitrary government power—power unconstrained by anything other than the will of those who hold it—the Court must heed Justice Thomas’ call. [Read More]

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