Prof Boston U. Law. JD/PhD History & dad jokes. 5th most-cited legal historian, 2019-23 Book: The People’s Courts. Next: A Faithful President: The Founders v. the Originalists http://shugerblog.com http://ssrn.com/author=625422
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Many originalists do not "reconcile" with the AR 15. I think it's obvious from the text & context that the 2d Amendment included the notion of "regulation" ("A well-regulated militia"). The 2d A. as incorporated by the 14th A. is an individual right, but it is not an insanely absolute right.
I am delighted to be publishing "An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: Anti-Gypsy and Anti-Chinese Restrictions as Categorical Context" in the UC Law Journal (formerly Hastings L. J.). @uclawsf.bsky.social papers.ssrn.com/sol3/papers....
August slipped away into a moment in time Because it was never mine…
I have a new favorite tennis player: Taylor Townsend. #Respect youtu.be/JGet76nPxfA?...
Travis Kelce survived cut down day. And negotiated a massive extension. Lucky guy.
They say prosecutors could get a grand jury to indict a ham sandwich... but apparently not the guy who threw a ham sandwich. At least Trump's hack prosecutors can't.
They say prosecutors could get a grand jury to indict a ham sandwich... but apparently not the guy who threw a ham sandwich. At least Trump's hack prosecutors can't.
Another read is not that SCOTUS is shy about confronting Trump but that they're basically on board with his project but would be embarrassed about the legal arguments they'd have to make if they upheld his actions on the merits, so they find procedural means to let him get his way.
I think I have to teach a class three times before I know what I’m doing. Class 1 gets a naive version, class 2 gets ambitious version, class 3 gets problem solver version, and finally class 4 gets a refined and smoothed version.
11/ @wsj.com picked up my commentary on Trump's threats: I called it “authoritarian fan fiction” that "flouted the Constitution." “This is a fundamentally ignorant commentary on our form of government.” www.wsj.com/politics/pol...
10/ When Trump asserts that the President "represents" the Federal Government and thus has special powers beyond the Constitution's text or original meaning - and even contradicted by it - he is just building on Roberts's conveniently pro-presidentialist assumptions and unsupportable logic.
9/ Roberts: * "Only the President (along with the VP) is elected by the entire Nation" * “directly accountable” through “regular elections” * the “most democratic and politically accountable officer in Govt.” Remarkably, he published this within a week of a decision about the Electoral College.
8/ In "Major Questions About Presidentialism," Jodi Short & I identified how Chief Justice Roberts invented a claim we called "presidential superiority" (alternatively, "presidential primacy") plainly contradicted by the text and original context of the Constitution. bclawreview.bc.edu/articles/3117
7/ Trump's post that states "must do what the Federal Government, as represented by the President of the US, tells them” is staggeringly ignorant of the text of Article II and the basics of separation of powers. Obviously, the President represents the executive branch, not the federal govt...
6/ Trump's post that "the states are merely an 'agent' for the Federal Government in counting and tabulating the votes" is spectacularly ignorant of the text of Article I and the basic structure of federalism. The MAGA takeover of the Republican Party exposes its intellectual bankrupcy...
5/ This is the next level of the unitary executive theory: Presidential Supremacy. And Chief Justice Roberts has enabled this extreme executive power in Free Enterprise, Seila Law, DVD, & Wilcox. www.nytimes.com/live/2025/08...
4/ The Help America Vote Act created the Election Assistance Commission to certify digital systems, but not a power to abolish mail-in voting. I don't know of a statute that offers even a plausible legal argument for the president or any exec agency to abolish or substantially curtail mail-in votes
3/ The Constitution gives the states this fundamental power over elections, and Congress is the back-up. Congress passed HAVA, the Help America Vote Act, in 2002 to help states replace the infamous punch-card ballots that were a disaster in Florida 2000. It promoted mail-in voting as an alternative.
2/ Art I, S. 4 of the Constitution: "The Times, Places & Manner of holding Elections for Senators & Reps, shall be prescribed in ***each State*** by the Legislature thereof; but the ***Congress*** may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
Trump just posted that he would issue an executive order to ban mail-in voting. Bottom line: He cannot. Neither the Constitution nor any congressional statute gives the president such an executive power. He followed up with this whopper, extreme even for Trump's past views of presidential power:
Neville Chamberlain would think he deserved a Nobel Peace Prize, too.
Ice agent struck by sandwich seeks counseling, says he can't even walk through deli without fearing for his life and has been diagnosed with BLTSD
Forthcoming: "Faithful Execution" as "What Have You Done For Me Lately and Financially": An Originalist Case for White House Spreadsheets Listing Companies' Loyalty to the President www.axios.com/2025/08/15/w...
(1) Hi y’all 👋 I’m on the academic hiring market this year!! I’m a PhD at Yale. My job talk is a timely piece of legal history exploring Myers, Humphrey’s Executor, and the future of the unitary executive (not in the news at all 😅). Happy to send a copy!
Delighted to share my latest, History and Fetishism in the New Separation of Powers Formalism, now live in the Penn Law Review! The piece traces the emergence of the Supreme Court’s new approach to separation of powers law and argues that it is grounded in a set of basic mistakes. (1/3)
My draft article goes into depth on the key statutory term "alien enemies." It had a widely understood legal meaning in 1798. Tren de Aragua members do not fit that meaning, even though the group is a designated "Foreign Terrorist Organization."
On "invasion" and "predatory incursion": in 1798, those terms in the Alien Enemies Act clearly had a war-military meaning--an attack on US territory. The Trump administration's interpretation is incorrect. I may have used a sledgehammer to kill a gnat, but it seemed important . . . .
I've just posted "The Alien Enemies Act of 1798," a draft article doing a deep dive into all aspects of the statute and background law -- what it all meant in 1798. It defines "invasion" and "predatory incursion," among other provisions. papers.ssrn.com/sol3/papers....
Trumpism and MAGA are converging with China's state corporatist/communist hybrid. The GOP has already abandoned American free market capitalism.
I don't want to hear Republicans claiming they're the party of free markets. The GOP is now all in for govt intervention in the market, but w/ now less pretext of "regulating in the public interest"... Just blatant partisan politics, ideological enforcement, revenge, or self-dealing corruption.
Are you going on the law teaching market? Thurs Aug 14, Erika George & I will represent BU @bulaw.bsky.social at the Northeast Regional Pre-Faculty Recruitment Conference at NYLS. Morning panels, afternoon individual info meetings. For info & registration: www.nyls.edu/academics/fa...
There are bigger problems out there, but @mlbnetwork.bsky.social @mlbnetworkradio.bsky.social formerGM Steve Phillips just gave some mindless baseball commentary. Co-host Xavier Scruggs disagreed but let it go: "I'm just gonna drink my tea." Phillips got nasty: "Drink it with your pinky up." WTF?
Some thoughts during the worsening humanitarian crisis in Gaza and new international support for Palestinian statehood, on my blog: "The Logic of Zionism = The Logic for Palestinian Statehood" shugerblogcom.wordpress.com/2025/08/01/t...
I'm re-posting this from Friday: "The Logic of Zionism = The Logic for Palestinian Statehood" shugerblogcom.wordpress.com/2025/08/01/t...
I'm re-posting this from Friday: "The Logic of Zionism = The Logic for Palestinian Statehood" shugerblogcom.wordpress.com/2025/08/01/t...
5. (out of 5): I replied, "Thank you for acknowledging that Netanyahu caused this hunger crisis by decided to cut aid, to serve Smotrich's and Ben-Gvir's plans to starve Gaza, then ethnically cleanse and re-occupy Gaza. I think I'll leave it at that."
4. (out of 5) He replied, "My shorthand for the hunger crisis is Smotrich and Ben-Gvir's folly, since they were Netanyahu's base he was appeasing when he decided to cut aid."
3. (out of 5): I replied, "At the risk of grossly oversimplifying, yes, Hamas started this war. But as a shorthand, I think of the escalation, bombardment, and hunger crisis since May 2025 as "Netanyahu's War."
With so much propaganda & bias on Israel/Gaza, this accidental concession/confession from a well-informed Bibi supporter is illuminating, in 5 steps: 1. I referred to "Netanyahu's war in Gaza." 2. He replied "I don't know in what world you call what Hamas started on Oct 7th 'Netanyahu's war.'"...
Some thoughts during the worsening humanitarian crisis in Gaza and new international support for Palestinian statehood, on my blog: "The Logic of Zionism = The Logic for Palestinian Statehood" shugerblogcom.wordpress.com/2025/08/01/t...
The story I pieced together from some cryptic snarky posts: Someone misgendered Dersh, so he sued them for pierogies. I think that’s slightly better than the real story. Btw, he seems to love small “dumplings” on small islands off the east coast, no matter how much trouble they bring him.
Repping my @jedshug.bsky.social swag at #SEALS2025. It’s the new theory of constitutional interpretation hot at the Court right now.
Historian friends: tell me about your favorite research & writing tools. As a bonus, would love to know where you learned how to use them & if you'd be interested in sharing your knowledge w/ others.
This is one of the best ideas I've heard in ages.
Endorse. This is what leadership looks like. Look, I don't have any perfect solutions, but at some point, we have to stop the worst anti-solutions. Netanyahu's war in Gaza is an anti-solution, and imperfect consequences are justified to stop far worse consequences. www.cbsnews.com/news/uk-prim...
A whistleblower quartet? A whistleblower horns section?
That’s one of the reasons why it’s a wrong answer
That’s one of the reasons why it’s a wrong answer
The correct answer: “President Taft”
Wrong answers on AP US exam: “54 40 or fight" was a debate over President Trump’s pant size
For anyone defending Israel's govt against war crimes, the Heritage Minister's recent public statements are... um... inconvenient. Any Israeli prime minister who had an ounce of conscience or true concern for Israel's future would oust this minister. www.timesofisrael.com/liveblog_ent...
Pretty much
Call it the Office of Chutzpah. Or the Office of SFG. (Shonda for the Goyim, i.e., an embarrassment)
Thanks! But I’m not so glad that they’re still control-f’ing around. How haven’t they found out?
I’m surprised that Trump was thoughtful enough to send a birthday card to anyone. Must have been a very special friendship.
Quotes from me, @jedshug.bsky.social and others in this Bloomberg piece... www.bloomberg.com/news/article...
Thank you!
The Commerce Clause gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” Isn’t this statute a relatively straightforward regulation of commerce with foreign nations?
Among others panels, I’m also super looking forward to Saturday’s session on new directions in const’l history w/ @jdmortenson.bsky.social, @tannerallread.bsky.social, @rachelshelden.bsky.social, @janemanners.bsky.social & Mary Bilder
✈️ Very excited to head to Rhode Island for the annual meeting of the Society for Historians of the Early American Republic, at which I’m both an interloper & facilitator of what promises to be a terrific discussion with @gauthamrao.bsky.social, @jedshug.bsky.social, Jennifer Tucker & Saul Cornell!
I got 30/32. Verdict: I woulda been hired. Could You Have Landed a Job at Vogue in the ’90s? www.nytimes.com/interactive/...
The irony is that libs’ shocked reactions amplify the meme for the target audience, plus fed by libs’ tears. Trolling isn’t the only goal, but it is a sufficient cause and an accelerant. It would be nice if it backfired, but it doesn’t seem to.
David Marcus has posted "The Class Action After Trump v. CASA", explaining why Rule 23(b)(2) class actions can meet the challenge of replacing the universal injunction. @stevevladeck.bsky.social @kovarsky.bsky.social @jedshug.bsky.social @leahlitman.bsky.social papers.ssrn.com/sol3/papers....
Ironic (not exactly eloquent human persuasion), but it's genuine human humor, so I'll allow it.
“53% of Americans Don’t Know Why We Declared Independence from Britain in 1776” That’s better than 67% of Supreme Court Justices who don’t know, either. www.cato.org/blog/53-dont...
“53% of Americans Don’t Know Why We Declared Independence from Britain in 1776” That’s better than 67% of Supreme Court Justices who don’t know, either. www.cato.org/blog/53-dont...
And Hans Solo & Gretl, the paradoxical duo
We have words for people who claim to be fighting anti-Semitism and also call bankers "Shylocks." 1. Chutzpahdik. And 2. Anti-Semites.
We have words for people who claim to be fighting anti-Semitism and also call bankers "Shylocks." 1. Chutzpahdik. And 2. Anti-Semites.
Idea for a band name: Boba Fête
And 3) Revenge against specific opponents 2017-2024; 4) General longterm grievance against the Manhattan establishment, the “elites” and the Deep State who excluded or obstructed him over his life; And 4) Commitment to xenophobia and/or white supremacy
Forthcoming draft article: "An Originalist Case for Deporting Naturalized Mayoral Candidates": A Thorough Control-F Database Search of Names 1776-1791 Revealed No One Named "Zohran" or "Mamdani" in America
The City of Boston wishes Dame the best in all his future endeavors. We’ll always remember the highlights, like the 2024 NBA Championship. We couldn’t have done it without you (I.e., without Jrue). Thanks for your crucial role in setting that beautiful plan into motion.
My working theory: Sen Collins & Sen Murkowski take turns vote by vote: one “teaching Trump a lesson,” the other “struggling” to cast the deciding vote for the extreme MAGA agenda.
#BULawProf @jessicasilbey.bsky.social, @robertltsai.bsky.social, and @jedshug.bsky.social discuss SCOTUS' ruling limiting nationwide injunctions and its deferred decision on the constitutionality of the effort to end birthright citizenship. Read more ➡️ www.bu.edu/articles/202...
4) So even though I couldn't imagine the Roberts Court ruling against birthright rule before, I can now - after a month of utter nonsense rulings. And wouldn't the Trump admin read tea leaves as a green light for more reckless defiance of the rule of law, to mix metaphors (green tea leaves)?
3) If the Roberts Court keeps giving Trump admin these wins despite its recklessness about precedents and defiance of court orders, those are the tea leaves of enabling lawlessness that worry me. The Barrett, Alito, Kavanaugh opinions are sloppy, bending over backward to the administration...
2) And even though plaintiffs can find good district courts to grant a class certification, the Trump DOJ would appeal immediately. After a year of SCOTUS shockers and overturning stays, I am not confident there are 5 votes to enforce dist court orders based on their class certification...
1) I imagine no good faith plaintiff would sue in a bad district, but the Trump DOJ surely would try some procedural twist (declaratory relief?) to get into a MAGA district. Now this gets very complicated - an interdistrict, intra-Article III fight over the MDL? ...
OK, that makes sense. And all they need is one district to grant a super-class on the birthright question, and let's say some sub-classes on other questions? Does that sound right?
Trump DOJ would come back and say "Loyalty" or "Invasion" is a relevant legal question, and this group does not have sufficient commonality for what we argue is a relevant legal question, which is also a fact-intensive case-by-case question. Tell me why I'm wrong to worry about that.
6/ I'm less worried by what Sauer listed, and I'm more worried about made-up distinctions like "allegiance," "loyalty"... or if this or that group constituted an "invasion" (see Judge Ho's new made-up distinction).. and any other "creative"/"clever" nonsense distinctions might block a class.
5/ And now just wait for the Trump DOJ to argue, following Lash/Wurman/Barnett, that "Allegiance and loyalty" are part of the original public meaning of citizenship... And each case is different on the facts of allegiance and loyalty.
Just wait til they argue "Allegiance and loyalty" are part of the original public meaning of citizenship, and each case is different on the facts of allegiance and loyalty. I'm not kidding.
4/ p. 52-53 SG Sauer: "Our position is not that class certification will necessarily be granted. Our position is that Rule 23 is how these sorts of claims should be channeled." Keep in mind that from Rehnquist to Roberts, SCOTUS has made class action certification much harder...
3/ p. 52 continued. "...and in both cases, the father is neither a citizen nor a lawful permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria."
2/ p. 52: SG SAUER: "There may be problems of commonality and typicality, for example. For example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother are illegally present..."
On Birthright Citizenship and class actions: The Roberts Court rules against national injunctions by saying Rule 23 class actions are the right process for the broad remedy. But in oral argument, Trump's solicitor general previewed how they'd fight class action certification: 1/ Page 51:
Last month on Amicus w/ @mjsdc.bsky.social, I said I was so troubled by the Roberts Court’s enabling Trump’s lawlessness, I now worried about the birthright injunctions case. Afterward I thought I was being paranoid… no way they’d go that far. Sorry I was right. podcasts.apple.com/us/podcast/a...
5/ "When a stay application arrives here, this Court should not...hide in the tall grass." Isn't the "tall grass" a problem for appeals courts trying to do something new & fact-related? Even in a TRO/stay, there are facts on the ground. Appellate courts need help seeing through tall grass
4/ There are a handful remedies that only appellate courts can grant, but those are particular appellate/legal issues. "Setting aside" a statute does not strike me as that kind of remedy... And Kavanaugh's metaphor "we can't hide in the tall grass" is kind of oblivious to this problem.
3/ How does this work as a matter of appellate procedure? 1. Plaintiff can’t ask for it below. 2. But as appellant they can ask for such relief for the first time, even on a fact-related question? Isn’t this a… procedural problem?
2/ Kavanaugh paraphrased: Lower courts can’t issue nat’l injunctions. But we SCOTUS can “set aside” statutes & exec orders. On what basis? On what fact finding about national effects? This isn’t *just* a “good for me, not for thee” problem (Roberts Court keeping powers it denies to trial judges)
I'm trying to make sense of the birthright decision on procedure. Question #1 on Kavanaugh: "This Court, not district cts or cts of appeals, will often still be the ultimate decisionmaker as to the interim legal status statutes & executive actions" A new fact-based question just for SCOTUS?
Last month on Amicus w/ @mjsdc.bsky.social, I said I was so troubled by the Roberts Court’s enabling Trump’s lawlessness, I now worried about the birthright injunctions case. Afterward I thought I was being paranoid… no way they’d go that far. Sorry I was right. podcasts.apple.com/us/podcast/a...
For you, @ericcolumbus.bsky.social
How about this hypo and statute: 1. Cancer Drug X fights all kinds of cancer with similar safety and efficacy. Statute: 2. Cancer Drug X can be prescribed for prostate and testicular cancer but not ovarian or breast cancer. 3. Or vice versa.
