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OpenMarket: Law and Constitution

  • Reformed Consumer Financial Protection Bureau Can Be Free-Market Regulator

    April 18, 2019
    Earlier this week, The New York Times Magazine rolled out another edition of the tired old trope of how former acting Director Mick Mulvaney “destroyed” the Consumer Financial Protection Bureau. This accusation is by no means new, and I have challenged it in the past.
  • Union Membership Post-Janus

    April 8, 2019
    It has been difficult to gauge the impact of the landmark Supreme Court decision in Janus v. AFSCME. In this ruling, the Supreme Court held that forcing non-members to pay fees to a union as a condition of employment is a violation of the First Amendment. Predictions on the fallout from Janus ran the gamut. Some predicted a mass exodus, while other believed few public workers would resign their membership.
  • House Has No Jurisdiction over Paris Agreement

    April 5, 2019
    If you have ever wondered whether Democratic leaders understand the U.S. Constitution when they bash President Trump for allegedly violating it, or just use “unconstitutional” as a mantra for opposing policies (or 2016 election winners) they don’t like, ponder no further. H.R. 9, the “Climate Action Now Act,” exposes House leaders as faux guardians of America’s basic charter of government.
  • Move Slowly and Establish Rules: Facebook's Call for Regulation

    April 2, 2019
    Facebook founder Mark Zuckerberg’s motto used to be “Move fast and break things.” Now that his company is under increased political scrutiny—and facing calls for breakup from both right and left—he has changed his tune to “move slowly and establish rules.”
  • Supreme Court Likely to Limit Administrative State's Ability to Interpret Rules

    April 1, 2019
    Last week the Supreme Court heard a case on limiting the powers of the administrative state that could be one of the most important this term. The Trump administration has actually agreed that the executive branch’s ability to interpret its own regulations should be limited (it is remarkable that the executive branch is advocating limiting its own power), although it doesn’t contend that it should be entirely overturned.
  • Regulation and Neglected Costs of Authoritarianism and Over-Criminalization

    March 19, 2019
    Corrupt government and authoritarianism have been the historical rule rather than the exception. The U.S. Constitution’s elevation of individual rights and restraints on governmental power in particular represented the peak of the exception.
  • Agencies Failing to Follow Law on Key Financial Regulation

    March 12, 2019
    The Dodd-Frank Act of 2010 is one of the worst pieces of legislation to have become law in recent history. It created the Consumer Financial Protection Bureau as an independent government unto itself, unaccountable to the president, Congress or the American people. Another provision, the Durbin amendment, was meant to save consumers money, but ended up costing those with a checking account an estimated $8 billion in additional fees.
  • States Challenge Federal Internet Gambling Ban

    March 11, 2019
    This January, the Department of Justice (DOJ) issued an opinion that threatens legal online gambling in the U.S. The tenuous rationale on which the opinion is based has raised some eyebrows, but the most concerning aspect is that the DOJ revisited the Internet betting issue at the behest and in service of a single casino owner, one who just so happens to be a major donor to the president.
  • Virginia Legislature Restricts Privately-Funded State Legal Staff

    February 27, 2019
    As revealed in detail in “Law Enforcement for Rent: How Special Interests Fund Climate Policy through State Attorneys General,” former New York City mayor Michael Bloomberg established a “State Impact Center” at New York University Law School with the goal of privately financing state attorneys general to investigate and litigate on issues surrounding climate change.
  • Confusing Poll Clouds Public Perception of Trump Emergency Declaration

    February 21, 2019
    President Trump’s national emergency declaration is constitutional, as I explained in a recent op-ed in the Washington Examiner. That’s an important fact, because we trust in our political leaders to obey their oath of office in defending the Constitution. So it might seem troubling if most Americans expect the president’s emergency declaration will be struck down in court, as today’s headline in The Hill proclaimed.

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