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Marty Lederman
@marty_lederman
, 3 tweets, 2 min read Read on Twitter
Here's the great mystery: Why didn't DoC back in 2018 cite the purposes articulated at pp. 5-8 of the Exec. Order, instead of the absurd VRA fiction, as justifications for adding the question to the census--something the Court probably would have upheld?

big.assets.huffingtonpost.com/athena/files/2…
Just to be clear: I don't think these justifications *should* have worked, because Breyer's dissent is 100% correct. But they would have had a much better shot going with them--and in hindsight almost certainly would have prevailed.
@_justinlevitt_ has some very intriguing and plausible theories about why perhaps Commerce didn't rely upon the E.O. rationales sooner.

electionlawblog.org/?p=106208

@rickhasen
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Marty Lederman
@marty_lederman
1/ Once again, the SG in his reply brief in the "Wall" case relies upon a fundamental error: He argues that plaintiffs' claims "necessarily rest on an alleged violation of Section 8005," which isn't designed to protect the plaintiffs' interests.

supremecourt.gov/DocketPDF/19/1…
2/ But Section 8005 can't be "violated": It's an *authorization* statute that DOD itself has (unpersuasively) invoked as a *defense* to plaintiffs' "ultra vires" claim that there's no authority for the funding transfer. Hence the "zone of interests" test is inapposite.
3/ @ACLU @SierraClub @steve_vladeck #appellatetwitter @just_security @SCOTUSblog @adamliptak
Read 3 tweets
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Marty Lederman
@marty_lederman
1/ To give you a sense of just how radical Trump's arguments are in the cases challenging congressional subpoenas, a brief he filed in the Deutsche Bank case in the CTA2 yesterday says that “a sitting President’s finances . . .

@just_security @lawfareblog
2/ ... and the conduct of foreign companies, individuals, and governments [including its financial involvements w/a sitting U.S. POTUS] are 'area[s] in which Congress is [constitutionally] forbidden to legislate,'” and off-limits to congressional investigation.

Seriously.
3/ Brief here--but there's much more to this effect in, e.g. , his briefs in the CTADC Mazars case.

justsecurity.org/wp-content/upl…
Read 3 tweets
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Marty Lederman
@marty_lederman
1/ A great piece on the gutting of DHS, so that it's now "a department staffed with Stephen Millers." Two things to note especially: (i) Trump thinks it's ok for the USG to break the law ,,,

@juliettekayyem
nytimes.com/2019/07/16/mag…
2/ ... and even promised Nielsen he'd pardon her in order to encourage her to do so.

(ii) None of the more sane officials who've been forced out--from Kelly and Nielsen on down--are willing to now publicly call out the President and Miller for what they are.
3/ They remain complicit, even after they were ridiculed, overrun and effectively forced to resign (or in some cases removed). When they served, they could at least say (or tell themselves) that their involvement prevented things from being worse. What's their excuse now?
Read 3 tweets

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Procrastinaticus Maximus
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Dr. Aphra Behn
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OK, I'm going to start a live-Tweet reading of Benjamin Carter Hett's The Death of Democracy: Hitler's Rise of Power and the Downfall of the Weimar Republic. Great book, and very important for those of us in modern democracies to understand. #DeathofDemocracy
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I have reached a whole new level of #PISSEDOFF.

I didnt think such a #dark and #scary state, or level, could be reached. It may top 12-14-17's causation. It's. That. Bad. So, I've prepared a statement...

docs.google.com/document/d/1_J…

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Siyanda Mohutsiwa
@SiyandaWrites
Here, for no reason at all, is a short story:
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The thing I notice about Richard is that he has stolen my appetite. When we meet for the first time at that Ethiopian restaurant downtown, I am staring first at his thin mustache and brown eyes. And then I am staring at my noodles and brimming with doubt.
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@mklausing9533
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