Eric Holder & Other Overreaching Prosecutors

An important citizen protection against government is the rule that in criminal prosecutions, criminal statutes are interpreted strictly. In other words, if the government wants to punish someone for violating a statute, it has to show that the defendant’s behavior was illegal beyond a reasonable doubt under the clear wording of the statute. Citizens are not held criminally responsible for guessing “wrong” about the meaning of an ambiguous law.

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Originalism and the Two Narratives of Halbig

Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges “established by [a] State” and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress’ intent.

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Blueprint to resist criminal judges

“Judge Miller is an Old Granny and a miserable doughface. Be prepared to resist, even at the expense of life, the encroachment of this sum of all villainies.” This text is from a resolution passed by the city of Oakland Wisc. in 1855 after the jury found abolitionist Sherman Booth guilty of violating the Fugitive…

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NLRB v. Noel Canning and Originalism

First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday’s recess appointments decision, NLRB v. Noel Canning. Second, my quick takeaway is that the case is a win for originalism.  True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism.  But…

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