Not something you see every day. Wordle 1,535 3/6* ⬜⬜⬜⬜⬜ 🟨🟨🟨🟨🟨 🟩🟩🟩🟩🟩
Professor at Georgetown University Law Center; former DOJ/OLC attorney
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Not something you see every day. Wordle 1,535 3/6* ⬜⬜⬜⬜⬜ 🟨🟨🟨🟨🟨 🟩🟩🟩🟩🟩
I was deeply fortunate to have him as a mentor and I return to the writing constantly. "Our Posterity" and "My World with Louis Armstrong" are my north stars; I assign them to my students. And the State Action Foreword might be the best law review article there is.
" ... because where such Democratic officeholders act in accord with the text, it's akin to when a babysitter, handed a credit card and told 'Make sure the kids have fun,' takes the kids on a road trip to an amusement park where they spend two days on rollercoasters and one night in a hotel."
Probably having Bruce Springsteen ask where I was (by name) on stage at the opening show of The River tour, when I was but 19. Either that or discussing Russell Hoban's novel Riddley Walker with Joe Strummer backstage after a Clash show in Grand Rapids.
Probably having Bruce Springsteen ask where I was (by name) on stage at the opening show of The River tour, when I was but 19. Either that or discussing Russell Hoban's novel Riddley Walker with Joe Strummer backstage after a Clash show in Grand Rapids.
(ii) Judge Ali can now consider anew the merits of those very claims, *perhaps* even in time to resolve them before the 09/30 deadline. Not difficult to imagine this was the result of a great deal of thoughtful internal collaboration and comity, under acute time pressure. Kudos all around. [3]
(i) The panel graciously (and properly!) de facto withdrew the aspect of its opinion that was most indefensible and of greatest possible longterm harm--i.e., the holding (abjured by the Civil Division) that the ICA precludes APA claims concerning failures to abide by spending mandates. And ... [2]
This was an extraordinarily shrewd *and* principled resolution by the en banc court, in a case in which the various arguments in the trial court and on appeal were *almost* hopelessly entangled and hard to parse. Of greatest importance are two things: [1]
"The White House has terminated Monarez from her position with the C.D.C.” The White House is an inanimate building. It doesn't have the capacity to "terminate" anyone or anything. And as a legal matter, only the President has the authority to remove Monarez. www.nytimes.com/2025/08/27/h...
Ask and ye shall ... balkin.blogspot.com/2025/08/what...
What are the legal questions raised by Trump's purported removal of Lisa Cook from the Federal Reserve Board? A user's guide: balkin.blogspot.com/2025/08/what... @charliesavage.bsky.social @jacklgoldsmith.bsky.social
I've flagged the Shurtleff issue! (And my issue list is now approaching 10, FWIW--none of which is whether the "for cause" tenure protection is constitutional.)
Why I find this application particularly alamring: bsky.app/profile/mart...
... the about-face is indefensible on the merits. Unless I'm overlooking something, the ICA preclusion argument borders on the frivolous. Which is, presumably, why the Civil Division abjured making it. [10]
The SG is, of course, entitled to change the Executive's legal position. It's not common, but it happens--even, very rarely, within the course of a single suit. Here, however, ... [9]
He argues that Judge Henderson was right--i.e., that the ICA precludes what would otherwise be a permissible APA claim that USAID's failure to spend appropriated funds is unlawful. [8]
He has applied to the SCOTUS to stay the district court's injunction *even while the issue is before the en banc court.* That's bad enough, but it's Part A-2 of the application that's most alarming. There, the SG makes the argument that's so weak that DOJ refused to make it in the lower courts. [7]
... noting that “the government did not dispute” that Plaintiffs had an APA cause of action to bring such claims. DOJ told the D.C. Circuit that if it didn't issue its mandate or stay the P.I. by 10:00 a.m. today, it would go to the SCOTUS. And tonight, the SG followed through on that threat. [6]
DOJ, for its part, has moved the D.C. Circuit to issue its mandate ASAP so that the existing district court injunction requiring funding would be lifted. In its en banc papers, however, DOJ effectively *conceded* that the panel was wrong about the alleged ICA displacement of APA claims, ... [5]
Indeed, the statute expressly says as much. See 2 USC 681(3) ("Nothing contained in this Act ... shall be construed as— ... affecting in any way the claims or defenses of any party to litigation concerning any impoundment."). The plaintiffs have sought en banc review of the panel opinion. [4]
DOJ didn't make that argument in the district court, nor before before the D.C. Circuit panel, either. And for good reason, because it turns the ICA on its head and there's really nothing that can be said for it--*of course* the 1974 Congress didn't intend to preclude such valid APA claims. [3]
A couple of weeks back, a 2-1 "emergency" panel of the D.C. Circuit ruled that the Impoundment Control Act of 1974 precludes plaintiffs' APA claim that USAID's refusal to expend billions of $$ in appropriated foreign aid is arbitrary and thus unlawful. [2]
Sorry to keep harping on this--I realize it's a bit deep in the weeds and legalistic, but this truly is a case of life or death for many (it involves USAID funding) and, unless I'm missing something, what the Solicitor General has just done is very alarming and difficult to defend. [1]
OK, so now the SG has gone into the SCOTUS and is arguing--contrary to DOJ's previous view--that the panel was *right* to hold that the ICA precludes APA actions challenging arbitrary refusals to expend in accord with appropriations statutes. Go figure. storage.courtlistener.com/recap/gov.us...
Everyone's all Humphrey's and Myers and Wilcox and Seila Law today but ... mark my words, by tomorrow--Wednesday latest--everyone will be a self-professed expert on Shurtleff and Reagan.
Is this the first test-case in 122 years for Shurtleff's (sort of) holding that notice and a hearing are an *implied* requirement for presidential "for cause" removal?
If it is, it'll be because he didn't give her the opportunity for a nominal hearing that Shurtleff/Reagan appear to require. But I think they're trying to avoid the Article II argument.
yeah, I've been wondering about the Shurtleff hearing requirement--which, as far as I know, has never been an issue for a statute that doesn't refer to such a hearing right.
I don't think so. This removal was for cause--pretextual cause, to be sure, but the Article II argument won't be joined. The broader problem is that he's willing to use pretext in a 1001 different settings to accomplish what would otherwise be unlawful--and everyone knows it, but won't stop it.
I hereby direct the Attorney General to prosecute expressive flag burning in the null set of cases in which it'd be constitutional to do so. www.whitehouse.gov/presidential...
well, they'd all laugh because that's not a very accurate way of putting the question, right? It's shorthand for something far more reasonable.
Important, sobering thread.
I'm trying hard to imagine the dynamic in the Bluebook board meetings--the marshaling of rationales pro and con; the heated arguments; longstanding friendships dashed--that preceded the decision to change the abbreviation of September from "Sept." to "Sep." in the 22d edition.
... that wouldn't be a very difficult task: Imagine parents who intend to prohibit the babysitter from using the credit card to deplete the family's bank account on a personal shopping spree ... but have also decided not to require her to pay back the money she wrongfully spent.) [3]
Moreover, *no* rational person could possibly believe that the Court's ultimate resolution--one rejected by eight of nine Justices--is one that any member of Congress intended (let alone majorities of both houses). (And if it requires a babysitter analogy to make the point ... [2]
In which Justices Gorsuch and Kavanaugh harshly upbraid a lower court for concluding that a recent "stay/injunction docket" decision was distinguishable ... even though the Chief Justice and three other Justices likewise believe it's distinguishable. www.supremecourt.gov/opinions/24p...
It is. The provision you cite is simply designed (or so I'm speculating) to ensure that the cases it describes, e.g., sharing it with one or a few persons, aren't encompassed in the "public or commercial" category.
Here's the DOJ brief -- see pp. 15f. storage.courtlistener.com/recap/gov.us...
...is interesting but really beside the point. (FWIW, DOJ doesn't even address the key question of whether Youngstown or Dalton governs an SOP claim when POTUS has invoked both statutory & constitutional grounds; fortunately, though, there's no need for the courts to resolve that question here.) [4]
All the other stuff in the panel opinion and in the briefs, about whether plaintiffs can *also* bring a separation-of-powers claim for failure to abide by an appropriations law when one of the President's stated reasons for the failure to spend was an Article II authority, ... [3]
ICA preclusion is a meritless argument that DOJ itself never briefed and that wasn't even mentioned at oral argument. And the panel holding would have a dramatic effect on many other pending and future APA cases. That's reason enough to grant & vacate. [2]
That's a more-than-sufficient basis for the en banc court to grant the petition and vacate the panel opinion, because the plaintiffs *have* made such an APA claim and the panel wrongly held that it's precluded by the Impoundment Control Act. [2]
In a just-filed opposition to a petition for en banc review in the D.C. Circuit USAID funding case (No. 25-5097)--I'll link to it when it's online--DOJ concedes that "the APA could provide a mechanism for the district court to order compliance with a specific statutory command." [1]
It's probably intended to mean that such conduct does not equal "voluntarily exposed by the identifiable individual in a public or commercial setting." The Act raises interesting 1st Amendment questions, but I think it's probably constitutional b/c of the "public concern" provision.
See footnote 1 of the plaintiffs' motion here. storage.courtlistener.com/recap/gov.us... (Briefing on the en banc petition and stay motion will be completed later today, so we might know soon from the en banc D.C. Circuit what the status quo will be going forward.)
I read the final sentence of this denial of an administrative stay today to be, in effect, a warning to the Trump Administration that it must begin to comply with the P.I. that's already in place. [1] storage.courtlistener.com/recap/gov.us.... [1]
If there's a problem with how the Smithsonian deals with slavery, it's that it doesn't come anywhere close to conveying "how bad [it] was." Hard to imagine how any museum possibly could.
It's not merely about the "kids of foreign diplomats" exception but, more broadly, about how the statutory construction adopted by the plaintiffs and the courts (including the SCOTUS) does, in fact (and contrary to DOJ) explain the three established exceptions to birthright citizenship. [2]
Thought I'd write some posts addressing, in particular, the arguments DOJ is making in support of Trump's birthplace (non)citizenship order. Here's the first of those, which deals with what appears (at least on the surface) to be the strongest aspect of the DOJ argument. [1]
Odds are that someone threw a sandwich from it or hung a poster on it
The "the" is a tell.
Another theoretical option is (iii) Title IX affords schools the option of choosing either policy (though I think it doesn't). It'll be interesting to see whether schools litigating aginst the Trump view (both primary & secondary and higher Ed) argue for (i) or (iii). Probably some of each.
Very disheartening (& gratuitously cruel) that the federal government has gone all the way from (i) Title IX requires schools to allow transgender students access to restrooms (which is correct) to (ii) Title IX prohibits schools from doing so (which ain't).[1] www.washingtonpost.com/education/20...
What's the word for "kill 9 in 10"?
NYT lede: "court paved the way for the Trump administration to move ahead with plans to decimate the CFPB." To which Judges Katsas and Rao would respond: "Hey, no fair! We explained that there *is no* 'plan to decimate the CFPB' (as such)." [6]
iv. The majority holds that b/c there's no directive saying "Decimate the CFBP wholesale," a wholesale challenge is impermissible. Plaintiffs instead must challenge each of the constituent parts of the (de facto but not de jure) decimation separately. [5]
iii. Once the suit is filed, those officials change their rhetoric to: "It's not a plan to decimate the CFPB; it's 1001 separate plans to undermine its mission to the greatest extent permitted by law." [4]
To clarify, this summary is (truly) not much of an exaggeration of what happened: i. Trump says: We're decimating the CFPB. ii. Plaintiffs sue Trump officials for implementing a plan to decimate the CFPB by taking numerous simultaneous steps to undermine its statutory mission. [3]
Here's the opinion: media.cadc.uscourts.gov/opinions/doc...
Once you read the majority opinion, you'll realize how ironic the NYT lede is: "A federal appeals court paved the way for the Trump administration to move ahead with plans to decimate the Consumer Financial Protection Bureau." www.nytimes.com/2025/08/15/u...
... Philippe's powerful plea at the end (recounting his conversation with Thomas Buergenthal) to remind ourselves of the historical longview and stay the course: though "there will be horror after horror after horror, ... we have to construct and elaborate and build over time." Read it, please. [2]
This is essential reading (or listening), as is virtually everything Philippe does. It's important for many reasons, but two of the most important are: (i) the understanding that the "Is it X?" questions pale in importance to the humanitarian catastrophe and its normalization within Israel; and [1]
Full disclosure: The overruled OLC opinion was issued when I was a DAAG there. [4]
I'm fairly certain "we're reversing a recent OLC opinion because it didn't adequately account for the 'nationwide surge in the pro-life movement in the United States' [actual quote]" is the application of some familiar canon of statutory interpretation, but I can't seem to put my finger on it. [3]
Footnote 8 translation: "This opinion is limited to the context of abortion and thus shouldn't be understood to in any way affect our creative (read: implausible) theories for circumventing countless other appropriations restrictions." [2]
Trump OLC translation services: "We do not depart from our past views lightly" means "We depart from our past views *heavily* (especially when abortion's at issue)." [1] #HydeAmendmentReversal www.justice.gov/olc/media/14...
Slightly diminish a band: Vampire Weekday
Slightly diminish a band: Vampire Weekday
Slightly diminish a band: Vampire Weekday
Slightly diminish a band: Vampire Weekday
Hard to imagine this is only the *second* most indefensible/disheartening court of appeals opinion from last week. media.ca7.uscourts.gov/cgi-bin/Opin...
Be interesting to track how much the cost of all things orange skyrockets today. @leahlitman.bsky.social
Clips from the wonderful Union Stage show the night before. www.youtube.com/watch?v=ox5V...
Mekons. Tiny Desk. Say no more. www.npr.org/2025/08/12/g...
I think this is more indefensible, and frankly more depressing, on so many grounds, than anything the SCOTUS has done lately. A deeply discouraging sign of where our legal system appears to be headed. I urge you all to read Judge Pillard's opinion. media.cadc.uscourts.gov/opinions/doc...
The Washington Nationals bullpen--collectively--has one career save. Trying to double that now.
You're forgetting that they're required to exhibit a naiveté from which ordinary citizens are free.
It's looking increasingly evident that at least some federal judges do, after all, believe they're "required to exhibit a naiveté from which ordinary citizens are free.”
v. Does it violate any DOD appropriations laws? A: I dunno. vi. Does it violate the covert action statute? A: Depends on whether Trump made a finding and notified the Intel Committees. [3]
iii. Does it violate the UN Charter (a treaty that's part of U.S. law)? A: Yes, unless there's consent by the foreign state. iv. Does it violate the U.S. Constitution? A: Probably not, though my view (not the USG's) is that if it breaches the Charter, the POTUS lacks Art. II authority. [2]
There could be at least six legal problems here: i. Is it murder under the law of [Venezuela][Mexico]? A: Probably yes, but that's not a U.S. law question. ii. Does it violate the 12,333 assassination ban? A: I can't offhand imagine why it doesn't. [1] @charliesavage.bsky.social
An explainer, of sorts, concerning the current debate about whether the UK can and should recognize Palestinian statehood. @ejiltalk.bsky.social
N: Grundarfjörður, Iceland (64°56' N) E: Golan Heights (35°45' E) S: Osa Peninsula, Costa Rica (8°40' N) W: Polihale Beach, Kauai (159.7648° W)
Well, *no one* should file unrigorous or misleading briefs, whether or not they're historians. There's nothing wrong, however (nor inconsistent with Dick Fallon's view), with filing a rigorous and informative history brief--other than that their audience appears not to really care about such things.
Don't recall a previous featured NYT review of a D.C. restaurant. www.nytimes.com/2025/08/05/d...
We need a word for someone who is beyond perverse, sadistic, sociopathic. Blocking mRNA vaccine research means that you or someone you love will die of something you could have avoided or survived. He is intentionally killing people.
 I’m afraid it’s something much worse than that: the administration making policies based on factual premises that virtually everyone knows are *not* true— and nothing can be done about it.
... will "exhibit a naiveté from which ordinary citizens are free” if only the POTUS intones the magic words? [4]
But those doctrines were based upon a presumption of presidential good faith & procedural regularity. What should the judiciary do when faced with a President whose modus operandi is to exploit the knowledge that courts ... [3]
... and then courts defer to what everyone knows to be pretextual. They're not necessarily wrong to do so, given the well-established deference doctrines. [2]
Case after case takes the same form: Trump or a Secretary virtually boasts about doing something for an unlawful purpose, but also (presumably at lawyers' urging) invokes a legitimate basis, often sounding in national security or foreign affairs ... [1] storage.courtlistener.com/recap/gov.us...
I'm the President of that Club.
Had me at "serious gourmet shit!" Heh. #jimmie'scoffee
What would "waking up," or hardball, entail? The main point of the article is that it's not obvious what the Dems can do to respond.
www.justsecurity.org/118040/takin...
Everything You Always Wanted to Know (and a whole lot you probably didn't!) About Trump v. CASA--and its impact on the pending birthright citizenship litigation. Deep in the weeds ...
OK, so 22-year-old rookie Nick Kurtz just had what's probably the greatest offensive game ever in baseball. Four homers, a double and a single (19 TB); six runs; 8 RBI. What?!
... much of U.S. history and the U.S. Code would be called into question. What am I missing? [8]
... that the "enumeration principle" the Court expressed in Lopez and Morrison (and, as far as I can recall, never before then) was a mere rhetorical flourish, a sloppy Rehnquistian shorthand or wishful thinking. Otherwise--as Richard demonstrates in compelling detail in his book ... [7]
... to establish an official flag and seal; to create corporations and other legal entities; to acquire territory; to regulate Indian affairs, defined *very* broadly (see Brackeen); etc.? I'd simply assumed that all (serious) profs teach their students ... [6]