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Articles by Mark Chenoweth
Why Kamala Harris Is The Real Threat To Democracy
Much wind went out of the “threat to democracy” criticism of Donald Trump when Kamala Harris replaced Joe Biden at the top of the Democrat ticket for President without a single primary vote being cast in her favor. However valid, such criticism of her coronation as a candidate misses a far more central reason why Harris poses the real threat to democracy in the presidential race.
Chief Justice Roberts’s Two Landmark Opinions Turn Tide Toward Liberty
Just in time for America’s 248th birthday, Chief Justice John Roberts has gifted our nation two landmark decisions that turn the tables on unlawful administrative power and turn the tide toward liberty. These cases do more to save Americans from being dominated by bureaucratic overlords than anything else the Court has done in at least half a century. The decisions in Securities and Exchange Commission v. Jarkesy and Loper Bright v. Raimondo (decided alongside NCLA’s case Relentless v.
A Watershed Supreme Court Term Will Not Drown The Administrative State
Administrative statists have floated a false narrative about the many indisputably important administrative law cases pending at the U.S. Supreme Court this term. With at least half a dozen such cases still awaiting decision by month’s end, it promises to be a watershed year. Greater freedom and constitutional restoration appear to be in the offing, which may explain the liberal meltdown that has already begun.
As cork pops on her retirement reception, Alyce Clarke bumps into $2B in lottery sales
Former State Rep. Alyce Griffin Clarke, D-Jackson, heads to a Jan. 26 “Night of Jubilee” event at the Jackson Convention Center this week honoring her 38 years of service to her District 69 constituents and along the way bumped smack into her legacy – the Alyce G. Clarke Lottery Law. Clarke, who ended her legislative term earlier this month as the longest-serving female state legislator, is 84.
Revisiting Mississippi’s Recent Tax Reforms
Mississippi policymakers clearly have further tax reforms on their minds as they begin their new four-year terms. Before those discussions kick off in earnest, it’s a good time to note why tax policy gets such emphasis and to recap recent Mississippi tax reforms. Tax policy is more than a dry subject of interest only to numbers nerds. Good tax policy helps create an efficient economy but is about much more than efficiency. It influences how much opportunity there is and who gets it.
Scuttling Chevron Will Put the Ship of State Back on a Constitutional Course
Like North Atlantic squalls pounding away at the New England shoreline, judicial deference doctrines have eroded the civil liberties ordinary Americans enjoy. No one can hold back the tide, but the Supreme Court has the opportunity to stop the erosion of civil liberties in a marquee case it will hear this week. My organization, the New Civil Liberties Alliance, is proud to represent the fishermen plaintiffs in this case, Relentless v. Department of Commerce.
Supreme Court, in Fishermen’s Dispute, Can Restore the Ship of State's Constitutional Course by Scuttling Doctrine of Deference to Regulators
Like North Atlantic squalls pounding away at the New England shoreline, judicial deference doctrines have eroded the civil liberties ordinary Americans enjoy. No one can hold back the tide, but the Supreme Court has the opportunity to stop the erosion of civil liberties in a marquee case it heard this morning. My organization, the New Civil Liberties Alliance, is proud to represent the fishermen plaintiffs in this case, Relentless v. Department of Commerce.
Scuttling Chevron Will Put the Ship of State Back on a Constitutional Course
Like North Atlantic squalls pounding away at the New England shoreline, judicial deference doctrines have eroded the civil liberties ordinary Americans enjoy. No one can hold back the tide, but the Supreme Court has the opportunity to stop the erosion of civil liberties in a marquee case it will hear this week. My organization, the New Civil Liberties Alliance, is proud to represent the fishermen plaintiffs in this case, Relentless v. Department of Commerce.
Scuttling Chevron will put the ship of state back on a Constitutional course
By Mark Chenoweth Real Clear Wire Like North Atlantic squalls pounding away at the New England shoreline, judicial deference doctrines have eroded the civil liberties ordinary Americans enjoy. No one can hold back the tide, but the Supreme Court has the opportunity to stop the erosion of civil liberties in a marquee case it will hear this week. My organization, the New Civil Liberties Alliance, is proud to represent the fishermen plaintiffs in this case, Relentless v. Department of Commerce.
The D.C. Circuit Did Not ‘Bungle’ The General Flynn Case
WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn ... [+] leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. (Photo by Alex Wroblewski/Getty Images) Getty Images A week ago Monday former federal appellate judge Michael Luttig took to The New York Times to attack the D.C. Circuit’s handling of the General Michael Flynn case.
When The Wolf At The Door Is Your Governor
STATE COLLEGE, PA - SEPTEMBER 09, 2017: Pennsylvania Governor Tom Wolf is seen in State College, ... [+] Pennsylvania. (Photo by Justin K. Aller/Getty Images) 2017 Getty Images The novel coronavirus pandemic has many Americans struggling to keep the wolf from the door of their homes and businesses. For Pennsylvanians, the threat has become all the more menacing, because the wolf at their doors is the governor—and the state supreme court just invited him in.
Judge Sullivan Disregards Two Controlling Precedents By Appointing Amicus In Flynn Case
U.S. District Court Judge Emmet Sullivan disregarded two controlling precedents from higher courts with his decision to appoint John Gleeson as amicus curiae in the U.S. v. Michael Flynn case this week. Judicial conduct similar to J. Sullivan’s in these prior, far less politically charged cases was roundly and unanimously condemned by Justice Ruth Bader Ginsburg, D.C. Circuit Judge Sri Srinivasan, and their colleagues across the ideological spectrum.
Opinion | Secret Laws for the Powerful
By Mark Chenoweth and Peggy Little July 23, 2019 6:42 pm ET SEC Commissioner Hester Peirce testifies in Washington, Oct. 24, 2017. Photo: joshua roberts/Reuters The Office of Management and Budget issued a memo recently reminding all federal administrative agencies that “the Constitution vests all Federal legislative power in Congress.” That may seem obvious, but agencies often regulate Americans beyond their lawful authority and without accountability.
Chief Justice Roberts Is Dead Wrong About Auer Deference
Chief Justice John Roberts. (AP Photo/Charles Dharapak, File). Copyright 2005. ASSOCIATED PRESS Chief Justice John Roberts lent the crucial fifth vote to uphold so-called Auer deference (solely on stare decisis grounds) in last week’s Kisor v. Wilkie case at the U.S. Supreme Court. In so doing, he wrote that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Roberts is dead wrong, and it is important to understand why.
Unless Fixed Now, Ninth Circuit Case Granting Immunity For Police Theft Will Prove Hard To Unwind
Home of the U.S. Court of Appeals for the Ninth Circuit. Getty Wide consequences will stem from the U.S. Court of Appeals for the Ninth Circuit’s recent decision granting qualified immunity to several Fresno, California police officers sued for theft. These consequences will prove hard to unwind unless the court—as it should—rehears the case en banc and fixes it now.
Bump Stock Rule Puts Constitution In The Crosshairs
FILE - In this Oct. 4, 2017 file photo, a device called a "bump stock" is attached to a semi-automatic rifle at the Gun Vault store and shooting range in South Jordan, Utah. The Trump administration is proposing banning bump stocks, which allow guns to mimic fully automatic fire and were used in last year's Las Vegas massacre. The Justice Department's regulation, announced Saturday, March 10, 2018, would classify the device as a machine gun prohibited under federal law.
Will Constitutional Defects With Administrative Law Judges Collapse The SEC's House Of Cards?
November 30, 2018 marked an obscure but important one-year anniversary. On that date, shortly after the Solicitor General had filed a brief confessing error in the U.S. Supreme Court, the Securities and Exchange Commission sought to fix the newly exposed defects in the unconstitutional appointments of its Administrative Law Judges (ALJs). But the purported “ratification” SEC undertook did not and cannot cure the raft of constitutional problems jeopardizing the current ALJ regime.
Florida Voters Join Chevron Revolt And Strike A Blow Against Judicial Bias
Amendment 6 in Florida just cleared the required 60% threshold What has already been a very good year for Chevron reform just got even better. By rejecting officially sanctioned judicial bias, Florida voters furthered a positive trend that has turned 2018 into the year of the Chevron revolt.
Have Americans Forgotten Why Due Process Matters?
Whether one considers the contentious recent Supreme Court confirmation hearing, Title IX proceedings on college campuses, or federal agency hearings in front of administrative law judges, this country is in danger of forgetting about the Bill of Rights and why due process matters. Rights violations are rampant in all three of these contexts, and the resulting damage to justice, fairness, and—importantly—the perception of justice and fairness is incalculable.
The Supreme Court's NOT Top 10: October Term 2016 Cert Petitions The Justices Should Have Granted
In a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases. Then again, the entire point of this feature is to identify such oversights.
Does The American Law Institute Have An Ethics Problem On Its Hands?
The brouhaha that engulfed the final draft of the Restatement of the Law, Liability Insurance (RLLI) at last month’s American Law Institute (ALI) annual meeting drew more publicity and concern than any ALI work product that I can recall. And for good reason.
The Federal Circuit Must Now Decide the Fate of AIG's Largest Shareholder
Michelle Stilwell, the Mary G. Waterman Fellow at WLF, significantly contributed to this post. In what is poised to become an extremely influential case, the US Court of Appeals for the Federal Circuit is currently deciding what to do after the federal government unlawfully took over the equity and leadership of [...]
The Supreme Court's NOT Top 10: October Term 2015 Petitions the Justices Should Not Have Denied
This Monday the US Supreme Court will conduct its so-called Long Conference, named for the fact that the large number of certiorari petitions it considers there cause it to last much longer than the other conferences the justices conduct throughout the year. With the fate of so many cert petitions [...]
The Supreme Court's NOT Top 10: October Term 2015 Petitions The Justices Should Have Granted
This Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there. With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.
Kudos to Colorado Supreme Court for Protecting Private-Property Rights from Special-Interest Enviro Groups
Fracking is alive and well in Colorado. This past Monday, the Colorado Supreme Court delivered a unanimous and resounding victory to property-rights owners in two important hydrofracking cases. Joining states like Texas, Oklahoma, and Ohio, the Centennial State determined that local activism must give way to state law when it comes to permitting the fracking of oil and gas wells. A 2012 vote in Longmont (pop.
DC Circuit's 'Fokker' Decision Preserves The Separation Of Powers, But Raises A Concern About DPAs
Deferred-prosecution agreements (DPAs) pose thorny questions from an overcriminalization perspective. But DPA skeptics should welcome-at least for now-a decision issued last Tuesday by the U.S. Court of Appeals for the DC Circuit. In a case entitled United States v. Fokker Services B.V., the DC Circuit held that federal district courts [...]
Keeping Track Of The Overcriminalization Problem
Overcriminalization is a term that came into vogue about ten or so years ago as a catch-all phrase to describe several interrelated legal policy problems. Washington Legal Foundation (WLF) has been at the forefront of the debate on overcriminalization, helping to popularize the term and offering thought leadership to policymakers, [...]
Cases The Justices Wrongly Rejected Last Term
The usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court's supposed pro-business tilt, you know it [...]
Two Cheers For The Tenth Circuit's Temporary Stay Of The CPSC's New Magnet Safety Standard
On April 1—no joke—the Consumer Product Safety Commission’s troubling new standard for magnet sets was slated to go into effect. However, thanks to the efforts of the sole remaining distributor of Small Rare Earth Magnets (SREMs) in the United States, Zen Magnets LLC, consumer freedom won a last-minute reprieve.
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