On January 25, 2016, the Supreme Court handed down its decision in Federal Energy Regulatory Commission v. Electric Power Supply Association, upholding Order No. 745 of the FERC. This case primarily involves a question of statutory interpretation. However, the Court’s decision also has important policy implications. It represents a significant victory for businesses and consumers who purchase electricity as well as a victory for the environment, by reducing the necessity to generate electricity from expensive and polluting coal-fired electrical generating plants. Justice Kagan joined by five other justices authored the opinion for the majority. Justice Scalia, joined by Justice Thomas, dissented. Justice Alito did not participate.
Wednesday, January 27, 2016
Friday, January 22, 2016
National Review Violates Trump's Rights Under the Eleventh Commandment -- Will Competing Republican Candidates Do the Same?
Yesterday the National Review published an editorial ("Against Trump") and a collection of essays ("A Donald Trump Nomination Would Fundamentally Change the GOP") criticizing Donald Trump. The editorial and some of the essays were composed of standard, inoffensive critiques that are perfectly acceptable within the Republican Party, along the lines of "Trump isn't conservative enough." But several of the essays NR chose to publish in support of its editorial crossed the line that Reagan laid down and that Republican pundits and politicians have almost universally respected until now. Those essays called Trump a racist and a would-be war criminal. And the response of the Republican Party hierarchy was swift. It disassociated itself from the National Review.
Thursday, January 21, 2016
The principal policy difference between Hillary Clinton and Bernie Sanders is over health care -- specifically, health care financing. Bernie favors the adoption of a "single payer" health care system, which he (and many before him) refer to as "Medicare for All." Hillary doesn't disagree about the desirability of a single payer system, but contends that it isn't feasible, politically or economically. She's right, at least for now. There is a way to bring about single payer system, but Democrats can't do that by themselves. Republicans, or at least a substantial proportion of Republicans, would have to agree. And there is a way that might happen.
Monday, January 18, 2016
I saw Martin Luther King, Jr., on June 15, 1964. My oldest brother graduated from college that day, and King received an honorary degree. When King was introduced, my mother told us to stand with the rest of the audience. The couple sitting behind us remained seated. My little sister asked our mother, "Why aren't they standing up?" Mother told us, "Some people don't understand what a great man he is." Here are a few reflections about what King did for us, and why the principles he stood for are so important for us today.
Thursday, January 7, 2016
Donald Trump and Anne Coulter have challenged the right of Ted Cruz to become President on the ground that, since he was born in Canada, he is not a "natural-born citizen" of the United States as required by Article II, Section 1 of the Constitution. Many esteemed legal scholars, including Neal Katyal and Paul Clement, have weighed in on the issue, most of whom take the position that Cruz is indeed a natural-born citizen. I agree with them, and offer below a short, simple semantic argument on Cruz' behalf.
I appeared on "Essential Pittsburgh" yesterday, a call-in show on NPR radio, to talk about the constitutionality of President Obama's executive actions intended to improve and enhance background checks on persons purchasing guns. Following the program I received an e-mail from a listener (first name of "Jim") who challenged my position on the Second Amendment in several respects. He wondered why I omitted the phrase "of the people" when reciting the Second Amendment from memory. (Really, it's just my age, Jim!) He suggested that I favored the "collective right" over the "individual right" interpretation of the Second Amendment. (I don't - but we still have to determine precisely what the individual right is.) He wrote that I was wrong in stating that the Pennsylvania Constitution of 1776 included the right to hunt. (I have since checked and it does protect the right to hunt, in Section 43.) Most importantly, he expressed support for the theory that the Second Amendment was intended to prevent "tyranny." I agree with Jim on this last and most important point. But he and I may disagree about precisely how the Second Amendment was intended to operate as a check on "tyranny." My entire response to Jim follows.
Wednesday, January 6, 2016
Echo from the Past: Chief Judge of Alabama Supreme Court Blocks Order of the United States Supreme Court
Chief Judge Ray Moore of the Alabama Supreme Court, in his capacity as administrator of all the state courts, has ordered clerks across the state to cease issuing marriage licenses to gay and lesbian couples. This is not the first time that Judge Moore has issued such an order. He did so on February 8, 2015, before the Supreme Court issued its decision in Obergefell v. Hodges. Here is the essay I posted at that time, and here is the blog entry posted a few days later discussing the Supreme Court's refusal to enter a stay on behalf of the State of Alabama. Nor is this the first time that the Alabama Supreme Court has disobeyed the United States Supreme Court in a matter relating to civil rights.
On Tuesday, January 5, President Barack Obama delivered an inspiring address proposing a number of steps that his administration will take to protect Americans from gun violence. Because Congress has refused to enact new legislation -- for example, it failed to enact the Toomey-Manchin background check bill, summarized by Politifact here -- the President announced what his administration will do to improve the enforcement of existing law. Many have attacked the President's proposals on the ground that he lacks the authority under the Constitution to take these steps. I don't see any constitutional difficulties whatsoever with the President's proposals.
Sunday, December 27, 2015
I explained the purpose and defended the validity of hate crimes legislation in a pair of posts that were published in 2009 in the Akron Law Cafe. Those posts are summarized and updated here.