Wednesday, January 25, 2017
Check out Daniel Hemel, Jonathan Masur, and Eric Posner's (all U. Chicago) piece in the NYT, arguing that Justice Scalia's opinion in Michigan v. EPA could block President Trump from building his wall.
Here's why. Scalia wrote in Michigan that the EPA's authority to issue "appropriate and necessary" regulations meant that it had to do a cost-benefit analysis on proposed rules. President Trump apparently intends to rely on the Secure Fence Act of 2006 as authority to build his wall. But that Act authorizes Homeland Security to take actions to secure the border only if they're "necessary and appropriate."
Hemel, Masur, and Posner argue that Scalia's opinion that "appropriate" includes a cost-benefit analysis should apply to President Trump's wall, too. And if so, they say it'll be very hard, even impossible, to justify it.