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OpenMarket: Law and Constitution

  • Most of Federal Government Action Would Survive Even Strict 'Gundy' Analysis

    July 11, 2019
    The Supreme Court’s recent decision in Gundy v. United States “suggests that the way our government works will be substantially changed towards greater democratic involvement,” as my colleague Devin Watkins explained on these pages last week. Although the Constitution permits Congress to pass laws that “leave the executive the responsibility to find facts and fill up details,” as Justice Gorsuch wrote in his Gundy dissent, “Congress must set forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
  • More to Like in Zuckerberg's Aspen Talk Than Not

    June 27, 2019
    Yesterday at the Aspen Ideas Festival, Facebook CEO Mark Zuckerberg touched on some of the most pressing issues facing his company and big tech as a whole. While his continued calls for government regulation of social media companies and other online services are dismaying, many of the principles Zuckerberg laid out represent exactly why such government intervention is not necessary and likely won’t produce better results.
  • State Legislatures Seek to Undermine 'Janus' Decision

    June 27, 2019
    Labor unions continue to deny the First Amendment rights of public employees despite the Supreme Court’s landmark decision in Janus v. AFSCME, which ruled one year ago that non-union workers cannot be compelled to pay union fees as a condition of employment. Many public employees that want to drop their membership have found it can be exceedingly difficult to do so.
  • 'Gundy' Decision Could Signal Fundamental Reform of Administrative State

    June 26, 2019
    It is hard to describe how important the Supreme Court decision last week in Gundy v. United States is. In one sense, nothing changed—no case was overturned, no new law was made, and Mr. Gundy is still going to jail. But in another way, the Gundy ruling suggests that the way our government works will be substantially changed towards greater democratic involvement.
  • Post-'Janus', Unions Continue Undermining Public Workers' First Amendment Rights

    June 24, 2019
    It has been nearly one year since the U.S. Supreme Court restored the First Amendment rights of public employees, but many members are still having difficulties exercising these new rights. In the landmark Janus v. AFSCME decision, public employees who are not members of a union can no longer be forced to pay agency fees, better known as forced union dues, as a condition of employment.
  • For Better Policy, Congress Should Stop Punting to Executive Agencies

    June 19, 2019
    Yesterday the Federalist Society’s Regulatory Transparency Project and Article I Initiative hosted a fascinating panel discussion here in Washington, D.C. about the dynamic relationship between Congress and federal regulatory agencies. Panelists assembled in the National Press Club to discuss a new law review article by Prof. Donald Kochan of Chapman University titled “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress.”
  • VIDEO: How to Become a Federal Criminal

    June 14, 2019
    Have you ever made an unreasonable gesture to a passing horse in a national park? If so, you are already a federal criminal. For the rest of us, there’s a new work of reference, humor, and legal theory from attorney Mike Chase titled “How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender.”
  • Consumer Financial Protection Bureau Should Acknowledge Its Unconstitutional Structure

    June 11, 2019
    The Consumer Financial Protection Bureau’s structure is unconstitutional. The agency’s leadership should recognize it as such.
  • EPA Streamlines Infrastructure Approval Process under Clean Water Act

    June 7, 2019
    Making good on its promise in Executive Order 13868  to combat the abuse of section 401 of the Clean Water Act by states seeking to block fossil energy infrastructure projects, the Environmental Protection Agency today issued updated guidance for states on implementing this provision. 
  • Venezuela and Rwanda: A Tale of Two Countries, Different Paths

    June 6, 2019
    The 21st century Venezuela is a failure. It failed because it adopted socialism. Paul Larkin, Senior Legal Research Fellow at the Heritage Foundation, remarked in his talk “The Framers’ View of Property” that “For about a year, we have been lectured about the alleged virtues of socialism, despite the fact that we have a living example in Venezuela of what socialism tends to produce: no power, no food, no water, military rule, and people forced to buy used toilet paper.”

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