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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
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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 Since he was inaugurated, President Trump has overturned more than a dozen regulations, rescinded numerous executive actions and established a system of regulatory oversight that, for the first time, incentivizes agencies to evaluate the accumulated stock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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Applying Heightened Scrutiny to Protectionist Alcohol Laws

Jarrett Dieterle April 28, 2017
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Recently, the South Carolina Supreme Court issued a decision striking down a state law that limited the number of liquor retail outlets that a single owner could operate within state boundaries. The Court held that the law’s sole justification was economic protectionism, which made it an improper use of the state’s police powers to regulate alcohol. R Street Institute fellow Jarrett Dieterle takes an in-depth look at case in this three-part blog series.

Part one and two of the series analyzed the South Carolina Supreme Court’s reasoning and the varying levels of constitutional scrutiny economic regulations have received throughout history. Part three will analyze how the recent revival in economic liberty litigation could apply to the world of alcohol.

* * * * *

While protectionist alcohol laws might appear to be nothing more than garden variety restrictions on economic liberty, the role of Prohibition and its subsequent repeal add an additional constitutional dimension when it comes to regulating booze.

Today, nearly every state has a three-tiered alcohol distribution system that maintains a strict wall of separation between alcohol producers, distributors and retailers. Even more stringent are the numerous states in which the government still controls alcohol distribution. In addition to these structural restrictions, close observers have no difficulty finding arbitrary, bizarre, and overtly protectionist alcohol laws in nearly every state in the union. From Virginia’s food-beverage ratio law, which arbitrarily mandates how much booze versus food a restaurant can sell, to Indiana’s cold beer law, which only allows liquor stores (but not gas stations or grocery stores) to sell refrigerated beer, the examples are legion. [Read More]

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Differing Levels of Scrutiny for Economic Regulations: “Anything Goes” Rational Basis v. Rational Basis “With Bite”

Jarrett Dieterle April 26, 2017
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Recently, the South Carolina Supreme Court issued a decision striking down a state law that limited the number of liquor retail outlets that a single owner could operate within state boundaries. The Court held that the law’s sole justification was economic protectionism, which made it an improper use of the state’s police powers to regulate alcohol. R Street Institute fellow Jarrett Dieterle takes an in-depth look at case in this three-part blog series.

The first part of the series analyzed the reasoning used by the South Carolina Supreme Court in reaching its decision. Part two will explore the differing levels of constitutional scrutiny that economic regulations have received during our nation’s history.

* * * * *

The fight over how to treat economic liberty under the Constitution has been as lengthy as it has been acrimonious. Under current constitutional jurisprudence, certain types of recognized rights—so-called “fundamental rights”—receive more robust judicial protection (known as “strict scrutiny”) than other rights. In order for a government to infringe upon these “fundamental” rights, it must have a compelling interest and adopt the least intrusive means to advance that interest. This requires an inquiry into both the goals of the infringing law and the means the law adopts to achieve those goals. [Read More]

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Could Economic Liberty Litigation Free the Booze?

Jarrett Dieterle April 24, 2017
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Recently, the South Carolina Supreme Court issued a decision striking down a state law that limited the number of liquor retail outlets that a single owner could operate within state boundaries. The Court held that the law’s sole justification was economic protectionism, which made it an improper use of the state’s police powers to regulate alcohol. R Street Institute fellow Jarrett Dieterle takes an in-depth look at case in this three-part blog series.

The first part of the series will analyze the reasoning used by the South Carolina Supreme Court in reaching its decision. Parts two and three take a look at economic liberty litigation and its potential application to the world of booze.

* * * * *

The South Carolina Supreme Court recently struck down a state law limiting how many liquor retail outlets an individual or business could own within the Palmetto State.  According to the court, the only justification for the law was economic protectionism, an improper basis for economic regulation. The case may be a portent for oppressive and protectionist alcohol-regulation regimes across the country, and a sign that the recent revival in economic liberty jurisprudence could be coming to the world of booze. [Read More]

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[ARTICLE]: Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?

Timothy Courtney April 24, 2017
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Professor John Baker writes for the Georgetown Law Journal:

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.”

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5G Boasts $3.5 Trillion in Benefits, If the Government Doesn’t Get in the Way

Timothy Courtney April 18, 2017
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David Teece writes for Morning Consult:

The central goal of the Trump administration is to create new jobs and bring home old jobs that have moved overseas. To have any hope of success, President Donald Trump will need to have an innovation policy that supports new technologies and reduces regulatory and legal barriers to growing these technologies.

There are many places to start. Research firm IHS Markit in January released a study of the coming economic impact of 5G, the next generation of mobile technologies. According to the report, 5G will be a significant step forward in the evolution of mobile technologies. This new technology, successfully implemented, will have great economic impact, with the “value chain” amounting to $3.5 trillion of output and 22 million new jobs, many of them here in the United States.

Read the full article

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Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

“Uncommonly Silly”—and Correctly Decided: The Right and Wrong of Griswold v. Connecticut and Why It Matters Today

Evan Bernick April 18, 2017
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It is one of the Supreme Court’s most consequential and controversial decisions, and no one should have been surprised that now-Justice Neil Gorsuch was asked about it during his confirmation hearings. In the 1965 case of Griswold v. Connecticut, the Court held unconstitutional a Connecticut statute that prohibited the use of contraceptives, affirming a “right of privacy” that appears nowhere in the Constitution’s text. Justice William O. Douglas’s majority opinion, which speaks of “penumbras, formed by emanations” from non-textual “guarantees that help give [the guarantees in the Bill of Rights] life and substance” has been ridiculed ever since it was issued. Conservative critics of the Court have long invoked “penumbras” and “emanations” to heap scorn upon the notion that the Constitution protects any rights that are not expressly listed in the Constitution’s text. [Read More]

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Accreditation Overreach Part 2: Forcing Affirmative Action on Colleges and Universities

Montana Legislature Passes Joint Resolution Declaring New ABA Rule 8.4(G) Unconstitutional

John J. Park, Jr. April 17, 2017
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In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” [Read More]

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