In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can’t hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn’t flesh out what that process would look like. Following Touhy, federal...
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This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized...
Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.
Takings jurisprudence looks to the states to mediate most tensions...
Plea bargaining dominates the modern criminal justice system. Constitutional safeguards, however, have only slowly followed this fundamental shift in criminal adjudication. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court extended the Sixth Amendment’s right to counsel to situations in which deficient counsel leads a defendant to forgo a beneficial plea agreement. The Court’s test left state court...
Does the Constitution guarantee a habeas Privilege or not? Even though the Supreme Court appeared to answer this foundational habeas question in Boumediene v. Bush, it seemed to have unceremoniously rescinded that answer in DHS v. Thuraissigiam. This Piece, using Thuraissigiam as a starting point, links this...
Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review...
Over the coming decades, experts estimate that twenty-five percent of all plant and animal species may go extinct. Climate change directly contributes to species extinction through ecosystem shift, and accelerates other drivers of extinction such as destruction of habitat and pollution. The Endangered Species Act is the only legal tool in the United States to directly protect against the threat of species extinction, and critical...
State-sponsored cyberattacks are on the rise. With the continually growing presence of automated and autonomous technologies in our lives, the ability to harm individuals from behind a keyboard is becoming an increasingly plausible and desirable option for foreign states seeking to target persons abroad. Those particularly vulnerable to such attacks include political dissidents, activists, and any individuals...
Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue...
In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine—the government edicts doctrine—and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through...