To sum up, the Unitary Executive Theory now appears to be: "The President must be in charge, the Constitution demands it! ... Unless we might lose some money, then, maybe the Constitution is um... less on point? Yeah! And we should, I don't know, look at the statute...yeah, that's it. Nailed it!"

Gorsuch, Thomas, and Alito pride themselves on being immune to empiricism. It doesn't matter what lessons of history teach us or the current state of the world - their visions of the Constitution will not yield to such petty realities. They are the anti-pragmatists.

Dan Walters@profdanwalters.bsky.social · last mo.

This passage from Justice Gorsuch is just so revealing of the tortured psychology of the Court's motivations: we have to risk authoritarianism in order to understand the necessity of building a libertarian utopia; there is no alternative between authoritarianism and absolute economic freedom.

The Slaughter and Cook opinions provide a perfect distillation of the rhetorical disdain for political reality that characterizes CJ Roberts’ (and his Court’s) view of American Democracy and the American electorate, and they way he employs that rhetoric to cement his own preferred view of democracy.

Had the chance to discuss the potential impact of Nebraska’s Republican primary results for Secretary of State with Nebraska Public Media. nebraskapublicmedia.org/en/news/news...

Petersen says secretary of state win will help restore confidence in Nebraska GOP leaders

Scott Petersen shook up the Republican establishment Tuesday with his upset win over incumbent Secretary of State Bob Evnen in the GOP primary.

nebraskapublicmedia.org

for all of the bleating by conservative justices that they decide cases on law, not politics, the choice to release the opinion RIGHT NOW is so brazen: it's far enough away from the election for Republicans to weaponize it, but close enough to allow Purcell to be invoked in the subsequent lawsuits

Subscribe to Radio Free America (link in bio)@kleinman.bsky.social · 3mo ago

We're headed toward a Congress where like 40 states send a single-party delegation, indistinguishable from just electing everyone at large and a population-based replica of the Senate. Thank you, John Roberts, for ushering in this nonsense era.

The Court's Callais decision has generated significant criticism (rightfully so). But I wanted to flag a passage in Justice Alito's opinion that is receiving slightly less attention, but which reveals just how partisan the opinion is. /1

In my completely subjective opinion, Justice Kagan has been the best writer on the Court for at least a decade. But she really outdid herself on her Callais dissent. It's rare to see such clear and profound sadness and anger in a SCOTUS opinion coupled with such strong legal analysis.

My thanks to @chrisjwalker.bsky.social and the student editors of the Yale Journal on Regulation Notice and Comment blog for publishing this short discussion of Justice Thomas’s dangerously executive-empowering dissent in Learning Resources, Inc. v. Trump. www.yalejreg.com/nc/vesting-c...

My thanks to @unlcollegeoflaw.bsky.social for supporting the Big Ten Early Career Law Scholars Workshop. And my thanks to all of the brilliant scholars from across the Big Ten community who spent the past two days sharing their time, work, and insights.

Today's "One First" explains why Stephen Miller is wrong that ICE officers have "federal immunity" from prosecution for all actions they take in their official duties, and that anyone attempting to prosecute them is committing a felony. Supremacy Clause immunity is a thing, but it's *not* absolute:

186. When Can States Prosecute Federal Officers?

Stephen Miller claims that ICE officers have "immunity" for anything they do while enforcing immigration law. Even as an argument about *state* criminal prosecutions, that claim is overstated at best.

stevevladeck.com

Increasingly polarized maneuvers like this were always going to be the result of Rucho shutting the federal courthouse doors to partisan gerrymandering claims. nebraskaexaminer.com/2025/09/08/w...

White House may discuss mid-decade redistricting with Nebraska lawmakers this week • Nebraska Examiner

The Trump administration is hosting a state leadership conference, but political aides could discuss redistricting, too.

nebraskaexaminer.com

My essay for the @washulaw.bsky.social symposium, “History, Tradition, and the Franchise,” is now available for download. It highlights the modern Court’s reliance on history & tradition, and cautions against this approach in voting rights, equal protection claims wustllawreview.org/2025/09/02/h...

Come join us at @unlcollegeoflaw.bsky.social for an early career scholars workshop this October!! Open to legal educators at Big Ten institutions with less than ten years of teaching experience! Papers at all stages welcome, and there’s a $500 travel stipend available! law.unl.edu/big-ten-earl...

I think we should expect them to attempt to carry it out regardless of what the courts say about it and then be pleasantly surprised if they do not

Andrew Kreighbaum@kreighbaum.bsky.social · last yr.

Trump's executive order upending birthright citizenship is blocked by multiple courts, but USCIS is making plans to carry it out if allowed to go into effect. It's released an implementation plan defining which groups of immigrant children would lose automatic birthright citizenship.

FWIW, “Concentration of Powers” (forthcoming UC Davis Law Review) was a “top download” this week in SSRN’s “Bureaucratic Relations” eJournal. You can access the paper here: papers.ssrn.com/sol3/papers....

Johnson on Judicial Supremacy, Separation of Powers, and Administrative Law, buff.ly/Sbvv3rb - Brandon Johnson (University of Nebraska College of Law) has posted Concentration of Powers on SSRN.

This is 100% right - though I think it's deeper than that. People don't necessarily think it's a person who will step in but that the system just does things automatically to stop bad things. But it doesn't work that way. Laws, courts, the Constitution -- nothing happens automatically.

Popehat@kenwhite.bsky.social · 2y ago

I think Americans, blessed with relatively stable government for a long time, assume there is someone, some adult, who will step in and make things right before the President does anything REALLY bad. There’s not.

Is this what they’re using that new Grok contract for? This looks like some asked a racist AI to convert Nazi propaganda about the “Volksgemeinschaft” into pioneer propaganda. This is so stupid it would be laughable if it wasn’t at the same time, deeply terrifying and a harbinger of worse to come.

Matt Novak@paleofuture.bsky.social · last yr.

The official DHS account is now tweeting about “your homeland’s heritage”

Reupping this for interested folks who may have missed it yesterday!

Brandon Johnson@bjeromy.bsky.social · last yr.

“Concentration of Powers” (forthcoming in @ucdavislaw.bsky.social Law Review), which analyzes judicial control of agencies, is now available on @ssrn.bsky.social. I’m working on substantive edits (especially to Part IV) so any and all comments are welcome! papers.ssrn.com/sol3/papers....

“Concentration of Powers” (forthcoming in @ucdavislaw.bsky.social Law Review), which analyzes judicial control of agencies, is now available on @ssrn.bsky.social. I’m working on substantive edits (especially to Part IV) so any and all comments are welcome! papers.ssrn.com/sol3/papers....

Fortunately we know from history that there’s nothing alarming or untoward about referring to your political enemies as vermin or insects.

Aaron Rupar@atrupar.com · last yr.

Sen. Ashley Moody cheerleads the political persecutions of Comey and Brennan and says, "this is not retribution. This is fumigation. You have had radicals roaming in these institutions like termites."

We’re at the point where clergy is helping to hide people from a masked, militarized state police. Anyone who has even a passing familiarity with history, knows this state of affairs has never ended well.

Rich Raho@richraho.bsky.social · last yr.

NEW: Bishop Rojas of San Bernardino has dispensed his Diocese from the obligation to attend Sunday Mass due to ongoing ICE raids.

If we as a country survive this descent into authoritarian madness, we will need a massively robust reckoning and reconciliation process to come to terms with the horrors our government will have inflicted on our most vulnerable. This is shameful, this is heartbreaking.

Aaron Reichlin-Melnick@reichlinmelnick.bsky.social · last yr.

At the DeSantis Everglades detention camp, people with green cards are being held in terrible conditions, with maggots in the food, the lights kept on 24 hours a day, and delayed access to medicine. One guy had his Bible taken and was told "here there is no right to religion."

This was always going to be the end result of villainizing agencies, and placing political loyalists in leadership positions, who not only have no experience, but also actively disdain the agency they are supporting be leading. I fear this is going to become an all too familiar pattern.

Marisa Kabas@marisakabas.bsky.social · last yr.

"Despite Trump officially activating FEMA on Sunday, FEMA has just 86 total staff deployed at this point [to Texas], according to figures shared with staff Monday evening...In the past it would normally be in the several hundreds at this point in the disaster recovery process." My latest:

“Don’t politicize tragedy,” is now a stock response. But there’s a difference between politicizing something, and asking important questions about the policies that either allowed for, contributed to, or made the tragedy more likely. Failing to address those policies will only lead to more tragedy.

Jacob T. Levy@jacobtlevy.bsky.social · last yr.

*Taking* blame, NYT. Taking.

I don't mean to sound hysterical but there are some pretty clear historical examples of "force the urban-dwellers to the farms," and none of them are great.

Aaron Rupar@atrupar.com · last yr.

Brooke Rollins on farm laborers: "There will be no amnesty. The mass deportations continue, but in a strategic way. And we move the workforce toward automation and 100% American participation, which with 34 million able-bodied on Medicaid we should be able to do fairly quickly."

One reason Stephen Miller is so strong is that much of the rest of the Trump Cabinet is so weak

Number 3 here is hugely important, and not unique to the U.S. system. Even in the German courts of the Third Reich, which were notoriously complicit in the horrors which took place, there were *some* lower court rulings that pushed back on the regime, but these were always reversed by higher courts.

Evan Bernick, a finite mode with a smol hooman and a lorg floof@evanbernick.bsky.social · last yr.

3 themes in the history of U.S. legal resistance to fascistic forces: (1) It often works way better than you might expect under the circumstances (2) It is never enough on its own, and fails to prevent a lot of harm (3) The Supreme Court specifically is very rarely helpful, usually the opposite

Harvard sociologist/polisci Theda Skocpol explains how the vast expansion of ICE in BBB may be Trump's secret weapon to overcome the barriers of federalism and complete his autocratic takeover of the American state. (History from Germany & Hungary in 20s/30s.) talkingpointsmemo.com/edblog/criti...

Coming soon: “The Originalist Case for Why the President Actually Does Have a Dispensation Power, which We Totally Knew All Along, but Didn’t Want to Say until We had A President We Trusted to Use It ‘Correctly.’”

Kim Lane Scheppele@kimlanelaw.bsky.social · last yr.

Trump has turned the constitutional mandate that he ‘take care’ that the laws be faithfully executed into its opposite. He now claims the power to pick and choose the laws to be enforced. www.nytimes.com/2025/07/03/u...