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OpenMarket: Law and Constitution

  • Securities and Exchange Commission Drops Probe of ExxonMobil over Climate Risk

    August 11, 2018

    The Wall Street Journal reported late last Friday that Securities and Exchange Commission (SEC) regulators have “decided against trying to penalize the energy giant over its disclosures and how it accounted for oil and gas assets.” For years, climate campaigners have alleged that ExxonMobil defrauds shareholders by failing to take into account the financial risks of potential future climate policies that put a price on carbon.

  • Looking Back at the Success of 'Free Enterprise Fund'

    August 10, 2018

    In the last decade there has been a kind of separation of powers renaissance in the courts. Previously, separation-of-powers cases were rare and usually occurred when Congress did something very unusual (like give itself veto powers). But in the last eight years, almost every term of the U.S. Supreme Court has had at least one, and sometimes several, separation of powers cases.

  • Four Reasons the Endangered Species Act Desperately Needs Reform

    August 8, 2018

    The Department of Interior recently announced proposed revisions to enforcement of the Endangered Species Act (ESA). These revisions are designed to lessen the regulatory burdens of this ineffective and outdated piece of legislation. The Endangered Species Act was passed almost 45 years ago in 1973. It was inspired by the environmentalism of the 1960s-70s and the growing fear that certain animals were facing extinction due to human impact on the natural world. Environmentalists defend the ESA with the assertion that its regulations are saving species, but it just takes time.

  • Real Sin for Social Media Companies Not 'Censorship,' but Getting into Bed with Government

    August 7, 2018

    Social media outlets have been filled with commentary this week about the decisions by Apple, Facebook, YouTube, and Spotify to remove content created by talk show host and conspiracy theorist Alex Jones. This is a useful opportunity to clarify what actually counts as “censorship” and what responsibilities that media platforms have to the public.

  • Will Trump Auto Rule End California's Regulation of Fuel Economy?

    August 1, 2018

    The Trump administration is expected tomorrow to release its proposed revisions of the Obama administration’s Corporate Average Fuel Economy (CAFE) and motor vehicle greenhouse gas emission standards for model years 2021 and later. On Saturday, July 28, The New York Times posted a leaked draft that the National Highway Traffic Safety Administration (NHTSA) sent in May to the White House for review. The question of the hour is whether the final draft released tomorrow will retain or retreat from the May draft’s bold initiatives.

  • Federal Employees Fight to Keep No-Show Jobs in Union Lawsuit

    July 27, 2018

    Federal employee unions and the Trump administration sparred in court over a set of executive orders that make changes to official time and grievance procedures on Wednesday. U.S. District Judge Ketanji Brown Jackson heard oral argument yesterday at the U.S. District Court for the District of Columbia. In conjunction with the oral argument, federal employee unions held protests across the country.

  • Appeals Court Rules Federal Housing Finance Agency Unconstitutional

    July 24, 2018

    Big news out of the Fifth Circuit Court of Appeals—the Federal Housing Finance Agency (FHFA) is unconstitutionally structured. The FHFA was created in the wake of the 2008 financial crisis and tasked with overseeing Fannie Mae and Freddie Mac, the two giant government-sponsored enterprises that were put into conservatorship after imploding during the mortgage meltdown. The agency has been a topic of controversy since its inception, with a novel structure that heavily insulates it from presidential control.

  • Federal Judge Dismisses Big Apple Suit against Big Oil

    July 21, 2018

    U.S. District Judge John F. Keenan on July 19 dismissed New York City’s climate change lawsuit against British Petroleum, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell. Keenan’s reasoning is similar to that of U.S. District Judge William Alsup, who last month dismissed Oakland and San Francisco’s climate litigation against the same oil companies.

  • Five Questions for Bureau of Consumer Financial Protection Nominee Kathy Kraninger

    July 17, 2018

    Kathy Kraninger, President Trump’s nominee to head the Bureau of Consumer Financial Protection ( the Consumer Financial Protection Bureau, or CFPB), will have her Senate confirmation hearing this Thursday, July 19, before the Senate Banking Committee. The position of BCFP director is critically important. Not only does the Bureau have the authority to regulate nearly every consumer financial product in the economy, but the director has enormous unilateral power and discretion in writing and enforcing those rules.

  • Environmental Protection Agency to Streamline Permits for Major Projects

    June 30, 2018

    In a move that furthers the Trump administration’s goal of reducing unnecessary and duplicative red tape while also helping refocus his agency’s efforts on its statutorily-defined core functions, Environmental Protection Agency Administrator Scott Pruitt issued a memorandum announcing that the agency would limit its interference with the Army Corps of Engineers’ permitting process under the Clean Water Act. In particular, Administrator Pruitt said the agency will prepare a proposed regulation that restricts EPA’s ability to override the Army Corps’ permitting decisions either before or after the fact. 


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