Antitrust lawyer, computer nerd, long-suffering Mets/Jets fan Watching NYC area weather via WatchedSky: 🌩️👀 xEqdwWB2srp6
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That's a tough/thought-provoking analogy. My initial reaction is that if there were an otherwise-persuadable Birther voter, I think it would be OK to say "I know you might have heard that from a lot of people, but here's the evidence showing he was born in HI." But that's not a claim re efficacy.
I guess at some level I am arguing that politicians in particular should get a little grace and not be expected to start conversations with potential voters that way. I do think it's OK to say "I see why you might think that, but here's what I think..." That's not advocacy for restrictive policy.
I realize we're talking about potential voters not kids, but a politician engaging in a conversation prompted by a voter's "concern" doesn't need to mean agreeing with legitimating that the "concern" is something that should motivate policy change, bigotry, or anything else.
And yet, if I'm trying to get my child to go to sleep, rather than dismissing it out of hand, I might make a show of looking under the bed and pointing out that there's nothing there and thus no reason to be concerned. That doesn't mean I'm going to let him not go to bed or leave the lights on.
Obviously, phrases sometimes take on meanings that transcend their ordinary usage. "All Lives Matter" might be true in the abstract, but came to be used as an intentional juxtaposition with BLM & it's reasonable to expect at least politicians to be aware of that. Perhaps that's at work here as well.
I might at least colloquially call both of those responses "acknowledging reasonable concerns." The difference is just whether it's reasonable to ask the question or reasonable to expect a policy change. Does it matter if "concerns" is changed to "questions"?
At some level, isn't this just about defining what it means to call something a "reasonable concern?" Isn't there a diff b/w "There's a real problem here that we/schools/the govt should do something about" (bad) & "I see how you might think that, but here's how it's already being addressed" (ok?)?
I'm doubtful, but I guess we'll see. You would either have to have a high (near-perfect) degree of confidence or a very substantial savings (not to mention much better confidentiality controls) & I think we're far from either of those. For now, more clients are likely to prohibit than encourage AI.
It is always a treat to watch that. Thanks!
Honestly, I think the big firms would be the last to do it purely b/c of economics. Associate salaries are fixed and hours are billable --- unless and until clients insist on using AI as an efficiency, it will always be profitable to have humans do the work and bill for it.
(Also, not for nothing, it also prohibits "inviting speakers to speak on campus" during the last 2 weeks of a semester or term at any time or for any purpose. So no graduation speeches?)
Good news - the law doesn't apply to defamation or harassment, so students are free to do that all night long.
I forget offhand who proposed this earlier, but an interesting, clearly const variant of the sortition idea is to replace certiorari with, say, a COA that could be granted only by a randomly-selected panel of circuit judges, not SCOTUS. So SCOTUS gets to keep life tenure but not docket control.
I agree that you probably can't replace the current CJ in this model. Any change to how that title is vested would have to be effective upon his death or resignation.
Agreed. I think I personally prefer using the A3-life-tenure fallback to support statutory term limits rather than sortition, b/c I think there is a legitimate role for nomination & confirmation, but they both rely on the same insight and both would probably be preferable to the status quo.
So you need a new statute: S1: "There is hereby a created a Special Court of Appeals consisting of one judge from each court of appeals selected by lot." S2: "The SCA shall have exclusive jurisdiction over any matter involving the composition of SCOTUS." S3: "Certiorari shall not run to the SCA."
I suppose this assumes that the supposed constitutional objection is to the transition from life tenure to this. If the objection is just that SCOTUS justices can't be selected by sortition at all, then grandfathering doesn't solve the problem.
Also, Article I requires there to *be* a CJ, but does it have to be a sitting member of SCOTUS? Couldn't Cong vest the role of "Chief Justice of the United States" on, for example, the Chief USCJ with the earliest date of commission? (Or for that matter the senior-most judge picked by sortition?)
Grandfathering the current justices such that there were 21 seats rather than 13 initially would be consistent with precedent and still be better than the status quo. Or increase the number of temporary random seats to further dilute the holdovers...
FWIW, I think this is a stronger prospective than retrospective critique. There is an approx 0% chance the Court would have given a past Dem president the same leeway Trump is getting here. It is, however, absolutely on the *next* Dem Pres to make them own (or not) the "logic" of their decisions.
But it's hard to see how you could prevent a determined majority willing to accept that from trying to "steal" esp a 2nd term seat in hopes their party wins the WH. I guess you could eliminate seats that aren't filled within a Pres term, but that would still skew the numbers over time.
You can probably go at least part of the way towards tweaking the leverage game by giving the President an FVRA-like power to, say, designate any A3-confirmed judge to serve as an acting justice once the seat has been vacant for N days after a nominee is sent up.
Do you know how long the initial Special Panel retains the case? Just through the resolution of the initial application for a stay? Until just before the merits? It seems as if it can't be just until the end of its term, since the July panel (Millett, Pillard, Katsas, JJ.) has now entered orders.
Entirely agreed.
Mayor and Council of NYC? The City Council isn't always particularly effective against a determined Mayor, but I'm not sure we want executive discretion over tax rates either...
Also, relatively small part of the overall issue, but what about infant adoptions? (Generally an exception from enumeration-at-birth even in the current system.) Is the idea that SSA has to adjudicate the legal status of the birth parents, even when it's the adoptive parents applying for the SSN?
FWIW, if this had been a pre-RCV primary in NYC, he would have had to cross 40% to avoid a run-off, but he cleared that in the first round here as well.
Ship has probably sailed, but does the logic of CASA v. Trump also apply to facial challenges to criminal laws? If Cong were, e.g., to repass the Sedition Act, would there be any ability to bring a pre-enforcement 1A challenge or would defs have to assert the defense individually until SCOTUS ruled?
Which is ... ironic ... given that Cuomo's most notable use of party political power was to work w/the IDC to give the institutional GOP control of the NYS State Senate. So yeah, I guess it's true that he knows how to wield political power, so long as you're sure he'd do it to actually benefit Dems.
Unfortunately, yes. WH staff in that type of role historically haven't appeared (due to claims of executive privilege), and I doubt *this* Congress is going to break new ground on that.
This is one of those cases where the periods in the abbreviation "U.S." would be helpful for disambiguation...
The 2025 version of the Unstoppable Force vs. Unmovable Object problem.
Ah, missed that. Thanks.
If it's Cuomo, there's then the question of whether WFP will cross-endorse (unlikely?) or endorse their own candidate (perhaps one of the progressive Democratic candidates who didn't win the primary), creating a potential 4-way general (with the Mayor and the GOP nom). And there's no RCV in the GE.
If there’s one thing that everyone agreed on at the time, it was the First and Second Banks of the United States 
My 5 YO crashes parties at the local NYC playground all the time, but he's not going to be deterred by the need for an invite. :)
Imagine there's a set of voters who would all prefer Lander, Mamdani, Myrie, Ramos, Stringer, and A. Adams to Cuomo. If half of them rank in that order (with Adams unranked), and the other half do the same thing but flip Stringer & Adams, half the ballots will be exhausted before the final round.
It's true that telling people to fill their ballot would go a long way towards avoiding this problem, but it's not perfect. An "uncapped" RCV system in theory entirely avoids the vote splitting concern, but I think there's a residual issue due to NYC's 5-candidate cap.
I suspect this is one of those posts that sounds crazy/like hyperbole if you weren't actually paying attention to NYS politics during those years. But it's really true, I promise!
Also, the whole history of Cuomo & the IDC calls into question whether he's on "our" side for any definition of "our" other than "his own."
But that means you need to *both* have a distinctive affirmative platform and a non-generic D ID. Osborn in KS took that so far as not accepting a D nomination, but that's probably not generalizable. (Or at some point you end up with a third party that enters "coalition" w/ the Senate Dems.)
The trick is in making your brand be "not generic Democrat" while not making being "anti-Democrat" so much of your identity that it gets in the way of the party governing when it has a majority. Perhaps trying to do it on 1-2 issues would work, but for, e.g., Sinema it seemingly became reflexive.
A reminder that there's at least some legal time period more ridiculous than the modern US copyright term. (Although given Rose's age when he was banned, life + 99 is generous relative to the set of lives-in-being at the time.)
So quaint. (I assume the actual answer is something between "nobody read the FVRA", "inherent authority," and "we think the Library of Congress is, in fact, an 'executive agency' under the FVRA", perhaps citing the GAO carve-out in the latter case.)
It's the legal standard for bribery. Is it also the legal standard for the broader noun "corruption"? (Which isn't an offense under federal law at all.)
What about the obstruction statutes? 18 USC 1505 ("whoever corruptly . . . influences" an agency proceeding); 1512(b) ("whoever . . . corruptly persuades" a witness). It's obviously a different statutory purpose, but illustrates that even the legal definition depends on context.
How is the second phase of the Qatari place grift supposed to be legal even on its own terms? Aren't gifts to Presidential Libraries the property of the United States anyway? (Just as with Presidential gifts received during an Administration and not purchased by the previous POTUS at market value.)
Unfortunately, they will likely get a blanket pardon, even if the President doesn't risk pardoning himself.
That's why it's important not only to not rank your disfavored candidate, but ensure your ballot is full with candidates you prefer. (Recalling that there were more exhausted ballots than Adams' MOV.) But within those constraints, you should be able to show relative preference. What am I missing?
Perhaps I'm missing a nuance here, but I thought RCV eliminated that risk. If Z and L are eliminated before M & C, then all that matters is how many people ranked M above C, not whether that was originally a 1, 2, or 3 ranking. The risk is that sufficient Z/L/M voters rank C above the other Z/L/M.
*removed. He most definitely was impeached, for a variety of reasons including but not limited to the Tenure of Office issue.
And as was discussed at length in the context of the first Trump impeachment, it's not as if you need to have a statutory hook if a majority of the House and 2/3 of the Senate believe the President has committed high crimes and misdemeanors, even political ones.
Yes - I agree they thought it was constitutional, but the Act was as I see it downstream of the severe (in my mind justified) policy disagreement between the Radical Republicans and President Johnson. The latter would have been the real reason for the removal, not his removal of Stanton per se.
Overruling Chada is probably fairly high on the list of constitutional amendments that could do the most good but are at least potentially politically attainable. (Because, unlike, say, abolishing the Senate or the EC, it doesn't have a clear partisan or geographic valence.)
Also, random semi-related plug, this was a very good and enlightening read. www.penguinrandomhouse.com/books/251429...
If Johnson had been impeached, I'm not sure the strict reading of the Tenure of Office Act would have been the reason. And even that statute aligned the Secretaries' terms with those of the Pres, so while it limited the Pres's removal power, it didn't remove a later President's appointing power.
But Congress being able to, for example, assign a 10 year term to, e.g., SecDef or SecState and effectively deprive a President from being able to appoint core executive officers also seems problematic from a policy perspective.
It's certainly an interesting historical example, with the "precedent" being established only by a tied Senate vote in the First Congress, which suggests at best mixed views of the constitutional question at the time.
As one who practices before/counsel clients re: the FTC, I'm a fan of Humphrey's Executor, but the multi-member distinction doesn't really make much sense. And even if it survives, I assume the Court would invalidate an attempt to convert a single officer into a multi-member body to evade Seila Law.
Agreed. Just pointing out that it would get dinged on a good substantive cite check. And FWIW, under Seila Law, I'm not sure how Congress could have done anything differently, other than going back and removing all of the Librarian's executive functions (making her more similar to the Architect).
Even if that's the right result as a matter of law (and I'm certainly no expert either), the court played a bit fast and loose with that "Id." citation, given 2 USC 136 doesn't mention removal at all. At best it's an implied power.
In the absence of a statutory good cause provision, doesn't that go hand-in-hand? Other than Article III judges, I can't think of any other Presidential appointees that aren't removable (perhaps with cause). (And Congress can't be the removing authority, other than through impeachment.)
Fair enough. I don't think this is sane-washing so much as suggesting a possibility that the image was chosen to advance his stated goal. But it was an offhand comment not really worth futher debate. To each their own.
My point is just the mistake is the President trying to convert May 8 into an overall victory celebration - that's the historical anachronism, but having aggresively and wrongly decided to do that, using a Pacific image isn't inconsistent with *his* concept for the "holiday."
I don't think it's necessarily an error --- if he wants May 8 to (for whatever reason) commemmorate the end of the entire war, then one of the most iconic images of the war in the Pacific makes perfect sense.
For the full effect, you need to consider that the Knicks actually had the first lead (3-0) only to have their only points removed by video replay. They literally went backwards...
True, but the power to remove is an important stick for ensuring policy alignment. (Compare the outcomes of Barr/Berman from Trump I & Bove/Sassoon from Trump II.) If the statute puts the (D)AG in the position of having to personally supersede the Interim USA, I'm not sure that's scalable.
But this DOJ has to believe that statute is unconstitutional, right? After all, if the power to direct prosecutions is a core executive function (Trump v. US, Dellenger v. Bessent), I assume they'd argue that Cong violates the Vesting Clause if it vests the appointment of prosecutors in the courts.
(The latter may well be another example of a distortion of the research funding process, but unfortunately there are plenty of examples of that in this Administration.)
Agreed, but particularly with the govt already having funded initial mRNA development, there's still a significant difference between "we won't approve any new mRNA vaccines" & "we're going to direct NIH funding to developing new non-mRNA alternatives." Both bad, but the first would be worse.
FWIW, I think the phrasing of that quote is a bit confusing. The rest of the article suggests that placebo testing would be required, but not the no mRNA part. The article describes that as NIH investment in developing a non-mRNA platform, which might be wasteful but isn't the same as an mRNA ban.
At least, that seems to be the implication of the unitary executive theory. And even if that is beyond existing precedent, Seila Law suggests that the President could call the Commissioner of Internal Revenue, express his desire to see such an investigation, and then fire him/her for not doing so.
Directing the outcome is different because Congress prescribed an objective standard for tax exemption, which is clearly within its legislative power; the President can't override that any more than he can unilaterally increase or decrease the amount of tax due.
I am almost certainly not someone who know the theory better than you, but I think the answer would be yes? The Comm'r can direct IRS employees to conduct such investigations, and the Comm'r's discretionary authority to do that is part of the Executive Power. Hence, it is vested in the President.
Of course, 0 senators per state also satisfies the Equal Suffrage Clause, so I don't see why "The Senate shall be composed of 100 Senators elected through a proportional representation system, w/o regard to state of residence" would violate Article V. (Putting aside the state ratification issues.)
I agree with this wholeheartedly (and think even an Article V convention would be insanely dangerous under current or foreseeable political conditions), but I seem to be having a filter bubble issue --- what is this (or Will's post) supposedly responding to?
And let's be real --- these almost certainly aren't being reviewed by OLC for "form and legality," notwithstanding 28 C.F.R. § 0.25(b), so we shouldn't be surprised by drafting issues.
I agree that "haul-em-off-in-chains" is probably the intended effect, whether or not justified by the text. As to whether the confusion is purposeful, I suspect it's more reckless: they simply don't care, b/c these aren't intended to be enforced as such, so long as the intended message is conveyed.
So in theory, even if the direction not to cooperate with ICE were entirely lawful, the EO directs selective/retaliatory prosecution of other violations by the relevant officials. Cf. the Tish James fraud investigation (w/o comment on the underlying merits, of which I have no info).
Purely as a textual matter it doesn't require that there be a crim law violated by the "don't cooperate with ICE" instruction. The EO only speaks of prioritizing pros of "any applicable violations of Federal criminal law with respect to State and local jurisdictions whose officials" do (a) or (b).
The Holy See would not have been understood by the Framers in 1789 as a "King, Prince, or foreign State." Also, it's a non-justiciable pq, given the express textual reference to Congressional consent; if they want to impeach him, they can (but we reserve the q of whether that would violate the 1A).
Equally remarkably, but for the Administration's brave action, each of those pills would have managed to kill 5.4 people on average. Each a veritable Magic Bullet of opiods...
Congratulations, Professor!
Not a lot of hope, but perhaps someone will do followup reporting when the 60-90 day period for the Secretaries/Agency Heads to submit recommendations as to X/do Y start to expire. That's when the rubber should in theory start to hit the road as to what actually can and can't be done by exec decree.
Hopefully the local media will ask Rep. Stephanie Bice (OK-5) to comment on the treatment of her constituents and what she's doing to get them their property back ASAP.
I wonder if part of the opposition from NJ (in particular) is the express use of the toll to subsidize mass transit; that cross-subsidization is an explicit part of the TBTA/MTA toll structure, but the PANYNJ crossings don't (explicitly) do that. (Also, I remember $4 for the GWB as a kid. Crazy.)
What do you think about the linguistic argument against referring to the CECOT transfers as "deportations" because the latter generally imply that the person is left at liberty in the destination country, rather than just transferred to a different prison?
FWIW, it's entirely common to find references to Nazi "deportations" of Jews to concentration camps during WW2 that don't imply legality (since almost all of the modern usages treat the regime's own domestic legal system as illegitimate).
Right, but that doesn't mean there isn't a quorum requirement. If, e,g,, 10 Sens showed up, 7 couldn't convict. The general quorum rule from Sec 5, Clause 1 still requires that half of the house be present for the conduct of business (and then 2/3 of whoever is present is required for conviction).
Out of curiosity, why do you think the Senate's quorum requirement differs for trials as opposed to other issues? Certainly there's no such limitation in Art. I, Sec. 5, Clause 1, which just speaks of "a Quorum to do Business" (50% of each house).
(Note that I'm aware of the ironic example of the First Step Act that Trump signed, which imposes a presumption in favor of incarceration < 500 miles from the inmate's place of residence. But that's subject to, e.g., bed availability, security level, etc.)
I'll assume that CECOT would likely create 8A conditions of confinement issues, but put those aside for the moment. If BOP wanted to transfer prisoners to, e.g. Norway, could it do so? I can't imagine that was anyone's intent in adopting current law, but the Admin obv doesn't care about that.
Genuine question: to the extent the Bureau of Prisons has statutory authority to designate the place of confinement for federal prisoners, is there a limitation that it has to be in the US? Subject to the 8A, could BOP just decide that some prisoners are, for reasons, best sent abroad?
There was similar language for an earlier emergency in the rule for the CR. But it doesn't actually prohibit a vote: it just means that the resolution to terminate the 4/2 emergency doesn't get expedited treatment and has to come to the floor through regular order or a Rules Committee special rule.
Which, I suspect, is why the Habeas Corpus Act of 1679 generally prohibited imprisoning English subjects anywhere outside England, Wales, and other places where the Great Writ ran. One is the necessary converse of the other.
Since copyright notice is essentially optional for US works published after 1989, would it matter?
And are all of those cases actually in the exclusive jurisdiction of the Court of International Trade? (See 28 USC 1581(i)(1).) If so, life's going to get a bit hectic there.
So does everyone who imports anything have standing to challenge the tariffs (whether as arbitrary & capricious, outside the scope of IEEPA, etc.)?
Along those lines, it's hard to imagine these firms signing off on the drafting of these agreements just if they were representing clients. To name just one example, what is the term over which the specified amount of pro bono work has to be rendered? W/o that, how would you ever establish breach?
The history of the 1769 founding of Dartmouth College and the legal rights of its trustees is of course described in and central to the holding of Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).