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Clark Neily Profile picture
@ConLawWarrior
Jul 28, 2020 • 4 tweets • 1 min read • Read on X
In 2013, I wrote a book in which I argued that SCOTUS was wrong to treat the Constitution as a fundamentally amoral document that authorizes the govt to engage in a broad array of immoral conduct, such as locking people up for no good reason. /1 amazon.com/Terms-Engageme…
The govt has embraced that judicial misconception with gusto and behaves wildly immorally in any number of areas, but none more viciously—and inexcusably—than the so-called criminal justice system. I think part of what we’re seeing in Portland /2
Is the govt’s inability to claim the moral high ground with any credibility. They lost that opportunity when they embraced the judiciary’s tacit invitation to say “Immoral-but-legal—sucks to be you!” The govt has sowed the wind with so many morally indefensible policies. /3
And now it is reaping the whirlwind. I only hope both sides can back away and realize that all of us can and should do better before the situation becomes irredeemable. I wish I felt more confident about that than I do right now. Apologies for the downer thread. /end

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More from @ConLawWarrior

Clark Neily Profile picture
Feb 20
1/5 Gorsuch's concurrence in today's IEEPA decision goes right into my veins. Starts by torching the proposition that the major questions doctrine a "magical innovation" (per Kagan), reaching back to 18th c English corporate law, American municipal corporations, and agency law.
2/5 He then calls out Kagan/Sotomayor/Jackson for reading statutory text broadly re vaccine mandates, eviction moratoriums & student loan forgiveness. But suddenly with Trump tariffs/IEEPA, they're MUCH stingier. Can they persuasively explain this discrepancy? No, no they cannot. Image
3/5 Responding to Barrett, Gorsuch says that "common sense" can't explain results in prior MQ cases because in each of them the agency had a plausible ordinary-meaning argument. The MQ doctrine works precisely BECAUSE it's a substantive clear-statement rule, and not just vibes.
Read 5 tweets
Clark Neily Profile picture
Jan 27
Here’s a thread for folks who are just now realizing—or suspecting, correctly—that our criminal justice system (into which we can fairly lump law enforcement orgs like ICE and CBP) is fundamentally broken and profoundly pathological. I believe it boils down to three things:
/1
1. Unconstitutional overcriminalization. The concept is complex but boils down to this: properly understood, the Constitution forbids arbitrary laws (eg, white wine is legal but not red), AND it requires the govt to have a sufficiently good reason for outlawing something.
/2
Most people are able to see this easily within the context of a specific constitutional guaranty like the 1Am, but some people think the requirement doesn’t apply outside the context of enumerated constitutional rights. This is false. For example, SCOTUS correctly struck down /3
Read 17 tweets
Clark Neily Profile picture
Mar 1, 2025
1/ You know what one of the most underappreciated dynamics in plea-driven mass adjudication is? Budgeting for prosecutor’s offices. They’ll tell you they’re under no pressure to secure a particular number of guilty pleas. Nonsense.
2/Obtaining convictions via trial is vastly more expensive than via guilty plea. Unless there’s a really massive drop in crime, a given prosecutor‘s office is expected to pursue about as many cases this year as they were last year.
3/That just stands the reason—especially given that America has some of the lowest clearance rates for serious crimes of all developed nations. The idea that a given
office could just say, “Yeah, we’re cutting our caseload in half this year” is frankly preposterous.
Read 8 tweets
Clark Neily Profile picture
Oct 18, 2024
Civil forfeiture is back in the news. And for good reason: It’s among the most corrupt and corrupting public policies in America and presents serious constitutional concerns. Unfortunately, policymakers and activists both overlook the single most effective forfeiture reform. /1
If you want to reform civil forfeiture without completely eliminating it you just have to do one thing: treble damages for prevailing property owners. Why would that be so effective? Two reasons. /2
1. With treble damages, far more property owners will be represented by counsel. I can tell you from personal experience that no factor more affects the outcome of forfeiture cases than having a lawyer because LEOs tend to be SUPER-sloppy when policing for profit. /3
Read 6 tweets
Clark Neily Profile picture
May 21, 2024
Judge Carlton Reeves has criticized qualified immunity before, but wow, he really cut loose this time. It's extremely rare for a sitting judge to express this level of disdain for a legal doctrine that SCOTUS has consistently and repeatedly affirmed. /1 s3.documentcloud.org/documents/2467…
Image
What gives Judge Reeves' latest assault on QI such force is that (virtually?) nobody disputes any of his points—namely, that SCOTUS invented QI out of whole cloth in direct (and increasingly indisputable) contravention of statutory text and unambigous legislative purpose. /2
At this point, the *only* "defense" (if one can call it that) offered by QI's vanishingly small coterie of defenders is that SCOTUS has been getting it wrong for nearly half a century and Congress has done nothing to correct that error, so why should either of them bother now? /3
Read 8 tweets
Clark Neily Profile picture
Apr 26, 2024
Just beneath the surface of the Trump immunity case lies the fact that our CJ system has gone so off the rails that few people—especially if they’ve done anything interesting like run for office or start a business—can be confident they haven’t committed multiple felonies. /1
Is it reasonable for future presidents and executive-branch officials to be concerned that the decision whether to prosecute them for *something* they did in office will end up being purely a matter of prosecutorial largesse? Absolutely—just like the rest of us. /2
We live in a wildly overcriminalized society where even the govt has lost track of how many laws are on the books—true fact: DOJ has repeatedly tried and failed to count just the number of federal criminal laws on the books, which is of course just the tip of the iceberg. /3
Read 10 tweets

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