Constitutional Conceits in Statutory Interpretation

My new article, Constitutional Conceits in Statutory Interpretation , was published this past week by the Administrative Law Review .  (The Administrative Law Review does not permit authors to post papers online prior to publication, so this is the first time this piece has been publicly available.) Here is the paper's abstract: For all its talk about textualism, the Roberts Court has a recent habit of ignoring statutory texts in highly politicized cases. In NFIB v. OSHA , West Virginia v. EPA , and Brnovich v. DNC , the Supreme Court steered around broad statutory language to narrow important federal legislation. In each case, the Court brushed aside inconvenient statutory texts, focusing instead on background constitutional concerns. Significantly, though, the policies at issue were not unconstitutional under current doctrine. The challenged policies, then, did not violate constitutional law so much as the conservative Justices’ constitutional sensibilities. Admitted

The Attack on the CFPB in Tomorrow's SCOTUS Case is an Ouroboros

The (pretty literally) eleventh-hour legislation to avert a government shutdown renders moot (for 45 days) the question of how a government shutdown would impact the federal courts. As explained in this Reuters story , it appears that the federal judiciary as a whole would be able to continue functioning more or less regularly for two weeks during a government shutdown and at least partially even after that, because the courts have funding sources--principally filing fees and the like--that are independent of annual federal appropriations measures. Those funds would be prioritized to pay judicial salaries, lest the government breach the constitutional provision of Article III that forbids diminution of their compensation. Or at least that's the practice . Judges and Justices are paid during a government shutdown, so the issue of whether a delay in payment counts as a diminution of their compensation has not previously arisen and is unlikely to arise. The fact that the federal court

Sherry Colb's Argumentative Style

Today is the Symposium in Honor of Professor Sherry Colb , hosted by Rutgers School of Law in Newark and co-sponsored by the Cornell Law Review. Last week I described and linked the paper I'll present on the panel exploring crosscurrents in Sherry's writing spanning various areas of interest. Since then, one of our speakers had to back out, so I'll also be replacing him on the animal rights panel. Because my crosscurrents paper is already likely to use more pages in the law review than a typical symposium-length article, I didn't think it appropriate to ask the law review to publish my write-up of my remarks on animal rights as well. Accordingly, I'll use this essay to preview my remarks, which I'm titling Sherry Colb's Argumentative Style . I discuss the patient and gentle tone of Sherry's influential 2013 book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans   (hereafter Cheeseburger ). As I explain, the style of Cheeseburger

United States v. Texas, Regents, and the Roberts Legacy on DACA

Earlier this month, Judge Andrew Hanen—the Bush-appointed judge in Texas who, back in 2015, Republican state elected officials handpicked to give legal effect to their political attacks on the Obama administration’s immigration policies— issued his latest ruling invalidating DACA , the Deferred Action for Childhood Arrivals initiative. Compared to earlier episodes in the long-running litigation over the Obama-era deferred action initiatives, the responses to Hanen’s latest ruling have seemed somewhat muted—not least, perhaps, because the outcome was entirely expected. News organizations and commentators have devoted relatively limited attention to Hanen’s ruling, and statements criticizing the decision have seemed to carry a certain amount of resigned fatigue. DACA’s most outspoken political opponents have also seemed mostly preoccupied by other matters. Even Hanen himself seemed to lack in this decision the kind of big xenophobic energy that he often exhibits in his immigration-relate

The Uses and Abuses of Government-Purchased Private Data Surveillance

In recent years, police departments and federal agencies have begun to purchase location and other data from specialized brokers in order to track individuals' activities over time. Much of this data is constitutionally protected. But government attorneys have generally concluded that purchasing data is a valid way of bypassing the Constitution's restrictions.  I push back on this conclusion in a new article , forthcoming in the Wake Forest Law Review. I first explored the idea years ago on this very blog . But today, I want to share some of the most interesting tales of government acquisitions of private data, from scary-but-successful uses of surveillance to wholly illegitimate applications of government power.  First, the successful. In 2018, U.S. Immigrations and Customs Enforcement (ICE) began purchasing access to cellphone users' digital location data through a data brokerage company called Venntel. The data had been collected from popular cellphone apps, including we

How Vacuousness on "Serious Issues" Takes Over the US Political Discussion

In a column last Tuesday, I indulged in a brief digression about an interview of Matt Gaetz, the Florida congressman who is currently leading the effort to shut down the federal government.  I could have noted there that Gaetz's escape from being indicted for sex trafficking (involving at least one minor) seems to derive from his history of hanging out with people who are so sleazy that they would make bad witnesses against him at trial (and who he, of course, now trashes for being in prison).  I could have done that, but there were too many other issues to talk about. The least sensationalistic of those other issues, which was relevant to the central point of my column, was Gaetz's attempt to sound like a sober-minded adult in the interview by decrying the national debt.  I wrote that, "when it came to saying anything at all about actual policy matters (as opposed to intra-party squabbling), he ritualistically invoked the national debt as a reason to criticize Democ

Wishes and Hopes: Top Ten Ways to Improve The Supreme Court of the United States

Next Monday, the Supreme Court starts its 2023-24 term amidst more than the usual share of controversy surrounding the justices. The public seems to strongly  disapprove of the Court's landmark abortion  decision that returned the issue completely to the political process. Moreover, just about every week there is new reporting about Justice Thomas's wildly inappropriate billionaire-paid lavish lifestyle, Justice Alito being Alito (publicly obnoxious and wrong), or one of the other justices trying unsuccessfully to defend the institution against charges of partisanship. The justices' approval rating is at an all-time low .  There are ethics, recusal, and term limit bills pending in congressional committees but the odds are low they will make it through both Houses, especially given the Senate filibuster and the GOP -controlled House of Representatives in an era where the GOP also controls the Court. Nevertheless, these days in America wishes and hopes are possibly our last,