Law

Holder to leave, but his stain will linger

Featured image There have been worse members of presidential cabinets than Eric Holder. John B. Floyd and Howell Cobb, both of James Buchanan’s cabinet, who apparently aided the South in the days before secession come to mind. In my 40 plus years of observing presidencies, though, Holder has a strong claim on first place. His warped attempts to use the national law enforcement apparatus to remake America along leftist lines would have »

Will the Obama EEOC sue the NFL over its new domestic violence policy?

Featured image The answer, of course, is no. If anything, the Obama administration seems to be pushing the NFL to prevent young black men who have been convicted of no crime from earning a living. But my question isn’t frivolous, given the EEOC’s litigation policy towards employers that deny employment opportunities to blacks who get into trouble with the law. Indeed, the EEOC has no tolerance at all for employers who exclude »

Incapable in Kansas

Featured image The race for the Kansas Senate seat held by Republican incumbent Pat Roberts has been essentially a three-way affair among Roberts, Democrat Chad Taylor and Independent (Democrat) Greg Orman. When Taylor purported to withdraw as the Democratic nominee earlier this month, he did so in a terse letter to Kansas Secretary of State Kris Kobach: I, Chadwick J. Taylor, Democratic nominee for the United States Senate race, do hereby withdraw »

Obama’s legal justification for asserting the power to attack ISIS: ironic and weak

Featured image President Obama initially justified air strikes against ISIS on the legal theory that, as commander-in-chief, he has a responsibility to protect U.S. citizens and facilities. However, as Eli Lake points out, Obama’s battle against ISIS quickly expanded into an effort to protect Iraqi infrastructure. And now it has expanded into an effort (how serious we don’t know) to “degrade and destroy” ISIS. By what legal theory does Obama justify this »

Ordinary politics as corruption: the left’s new totalitarian hobby horse

Featured image Whatever one thinks about the conviction of former Virginia Gov. Robert McDonnell on fraud and extortion charges, there is little doubt that the legal theories that produced the conviction blur the distinction between criminal corruption and ordinary politics. Indeed, it is my view that the left sees no such distinction. To the extent that ordinary politics stands in the way of its agenda, the left perceives ordinary politics as, at »

Bob McDonnell and the criminalization of politics

Featured image For former Virginia Governor Robert McDonnell, found guilty last week of fraud and extortion, I have only the small amount of sympathy reserved for those who fall from grace deservedly, but not due to true malice or viciousness. However, I agree with William & Mary law professor Jeffrey Bellin that charges like those brought against McDonnell present the real danger of criminalizing ordinary politics. The essence of the legal case »

GAO: Obama administration violated law in releasing Gitmo detainees to Qatar in Bergdahl deal

Featured image The Government Accounting Office has concluded that the Obama Defense Department violated section 8111 of the Department of Defense Appropriations Act when it transferred five detainees at Guantanamo Bay to Qatar without providing at least 30 days notice to certain congressional committees. Section 8111 prohibits the Defense Department from using appropriated funds to transfer any individuals detained at Gitmo unless the Secretary of Defense provides such notification. The GAO also »

Rick Perry and the Democrats’ pattern of “lawfare” against rising Republicans

Featured image John and Scott have commented on the indictment of Gov. Rick Perry. As they note, it fits a pattern of politically motivated indictments of prominent Texas Republicans. The Perry indictment also fits a pattern of harassment via the legal process of prominent Republican governors: Sarah Palin, Scott Walker, Chris Christie, and now Perry. What do these four have in common? Why, they all are (or were) potentially viable candidates for »

Hating and fishing in Sherrod v. Breitbart’s widow

Featured image I wrote here about Shirley Sherrod’s lawsuit against Andrew Breitbart’s widow in connection with video Andrew posted. In the video, Sherrod regales an NAACP audience with the tale of how, as a public employee, she initially stiffed a white farmer seeking her help. Andrew did not post, presumably because he did not have, the full video in which Sherrod says she eventually saw the error of her ways and helped »

American Sniper on trial: The verdict

Featured image I wrote about Jesse Ventura’s defamation claim against the estate of Chris Kyle in the post “American Sniper on trial.” I attended closing arguments in the case in federal district court in St. Paul this past Tuesday morning and am disappointed to report that, after declaring itself deadlocked yesterday, the jury returned with a verdict in favor of Jesse Ventura against the estate of Chris Kyle this afternoon. The 10-person »

Obamacare architect explained intent behind allowing subsidies only on state exchanges

Featured image Jonathan Gruber, a professor at MIT, is widely is regarded as the architect of both Romneycare and Obamacare. Following the D.C. Circuit’s decision in Halbig, he asserted that the provision of Obamacare limiting subsidies to the state exchanges was a “typo.” Indeed, he found it “criminal” to suggest that Obamacare was intended to work this way. But William Jacobson (via one of his readers) has unearthed video from 2012 in »

Pro bono law morphs into left-wing lawfare

Featured image Do you remember Shirley Sherrod? She’s the former Department of Agriculture official caught on camera saying she denied a white farmer the full measure of benefits she could have given him, before later describing how she ended up rejecting this racist approach to her job. The late Andrew Breitbart posted excerpts of the Sherrod video that failed to include the part about how she overcame her racist impulse and ended »

Drafting error vs. drafting miscalculation

Featured image Sean Davis, a former congressional staffer, examines the claim that the provision in Obamacare limiting subsidies to those participating in state exchanges was the product of “drafting error.” He finds it laughable. I discussed what a legislative drafting error looks like here. Davis sees it the same way: When I worked in the Senate. . .it was not uncommon to find obvious errors in bills and amendments. Sometimes you would »

Drafting error vs. poor draftsmanship

Featured image Obamacare by its express and unambiguous terms limits Obamacare subsidies to people using health care exchanges “established by the State.” Thus, subsidies to people in the federal exchange are not permitted, as these exchanges obviously are not established by the State. However couched, the argument that subsidies should nonetheless accrue to people in the federal exchange boils down to the notion that the limiting language of the statute is the »

What’s next after Obamacare’s defeat in Halbig v. Burwell? [updated]

Featured image As Steve has noted, the U.S. Court of Appeals for the District Columbia today invalidated the IRS regulation that provides for insurance subsidies to millions of lower-income Americans using the federal Obamacare exchanges. The ruling means that in 36 states, Obamacare subsidies will not be available, making its insurance coverage unaffordable to many Americans and potentially crashing the system. The Court’s ruling, by a vote of 2-1, is clearly correct. »

American Sniper on trial

Featured image Former WWF wrestler and Minnesota Governor Jesse Ventura brought a lawsuit for defamation against Chris Kyle, the Navy SEAL sharpshooter and coauthor of American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History. The book was published on January 3, 2012, under the William Morrow imprint of HarperCollins. With a little help from Morrow’s publicity department, Kyle was featured on segments of the Today Show and the »

The Wagner case decision

Featured image This past February Paul wrote about the case of Teresa Wagner v. Carolyn Jones, Dean of the University of Iowa College of Law in this post. Like Paul, I had read Peter Berkowitz’s Wall Street Journal column over the previous weekend and noted that the oral argument in Ms. Wagner’s appeal was scheduled before the Eighth Circuit in St. Paul the following Thursday morning. TaxProf Paul Caron picked up on »