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Jed Shugerman 🇺🇦 Profile picture
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Jul 30, 2020 • 5 tweets • 2 min read
Steve Calabresi: "This tweet [for delaying election] is fascistic & is itself grounds for the president’s immediate impeachment & removal."

If he & Barr don't disavow, impeach both.

Better late than never, but...

A thread on timing & moral courage
1/
 nytimes.com/2020/07/30/opi…
2/ We need to reckon with who stood up for the rule of law, often at personal cost.

And who conveniently shifted w/ the polls.

The true #NeverTrumpers, some of my heroes:
@chkbal
@ProjectLincoln
@ForTheRuleOfLaw
@AVindman Yovanovich, etc.
You know who you are. Thank you.
3/ Never forget which conservatives fought Trump before Covid19...

And which conservatives waited until Trump plummeted in the polls to abandon a dead pipeline to power.

Trump's tweet was nothing compared to Russia/Ukraine/Child Cages.
But its timing was a lot more convenient.
4/ Yes, Steve Calabresi deserves credit for his statement today.
Better late than never.

But the later one waited to condemn Trump while taking advantage of access to power, the harder one needs to fight now.

And the more repair one needs to do in the aftermath.
5/
 Steve Calabresi swung at a softball today.
It’s easy to condemn a totally untenable legal position.

Let me know when he’s ready to stop the right-wing beanball and play hardball against Trump.

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More from @jedshug

Jed Shugerman 🇺🇦 Profile picture
May 6
Alito draft p. 13 is - unwittingly - the powerful originalist argument in favor of Roe:
Drafters often chose precise language to limit public meaning.
But when the Drafters chose “a capacious term” like liberty, it was an invitation to interpret/construct for new circumstances. Image
My concern #1: The term "substantive due process" is akin to an oxymoron. I know the solid historical research by @evanbernick & @RyanWilliams314 on the roots of substantive due process, but the nature of the word "process" is a texual limit on the capaciousness of "liberty"...
#2: I think the limited "ordered liberty" approach is relevant for 5th A. "liberty," b/c those common law traditions is context for 18th C. "substantive due process."

But the 14th A. has a different historical context: Slavery - and its evils against privacy/repro rights.
Read 7 tweets
Jed Shugerman 🇺🇦 Profile picture
May 4
Can Congress protect reproductive rights by statute?

Step 1: Pass a statute protecting interstate delivery of abortion meds, commerce & travel.

Step 2: Pass this Art III S.2 "exception/reg" requiring a 2/3 SCOTUS majority to strike down a federal law:
papers.ssrn.com/sol3/papers.cf…
2/ Why interstate commerce and not a 14thA. Sec.5 statute to enforce equality or liberty?
The Rehnquist Court limited both, but esp. if Roe is overturned, there are clearer interstate commerce line precedents...
but the interstate hook needs to be clearer than Lopez/Morrison.
3/ If you want to read the explanation for why Step 2, a supermajority 6-3 ruly by statute is constitutional under Article III, Sec. 2, just read pages 971-81 of this long article:
papers.ssrn.com/sol3/papers.cf…
Read 4 tweets
Jed Shugerman 🇺🇦 Profile picture
May 3
[Fixed thread on leak speculation]
I’ve been cautioning against Leak-distraction when the real news is the draft opinion…
@akapczynski does a great job explaining why the substance points to a conservative leak strategy.

However, I have 4 doubts. 1st/5:
1. Timing:
Here @akapczynski asks “If a liberal clerk, why not leak in Feb?”
Keep in mind: Breyer announced his retirement late Jan.
Until mid-April, liberals focused on confirming KBJ in a 50/50 Senate.
A leak would've jeopardized or slowed confirmation.
2. Timing #2:
Once KBJ was confirmed, a liberal could then focus on Congress before looming losses in Nov.
One might hope leak could jumpstart federal legislation (protect meds shipments? A reproductive rights statute?)
I’m not saying it’s good strategy, just a plausible motive.
Read 5 tweets
Jed Shugerman 🇺🇦 Profile picture
May 3
I’ve been cautioning against Leak-distraction when the real news is the sweeping reactionary/radical draft majority…
But @akapczynski does a great job explaining why the substance points to a conservative leak strategy.

However, I have 4 doubts. 1/4
1. Timing: @akapczynski asks “if a liberal clerk, why not leak in Feb/March?”
Keep in mind that Breyer announced his retirement late Jan.
Until mid-April, liberals were focused on confirming a liberal in a 50/50 Senate.
A leak would have jeopardized or slowed KBJ’s confirmation…
2. Could there be a liberal strategy in leaking?
It doesn’t have to be a good strategy, just an understandable reason why a liberal might think so.
@akapczynski thinks a leak locks in Kav, but a liberal might think Kav is new, sensitive to public opinion, and vulnerable on this.
Read 5 tweets
Jed Shugerman 🇺🇦 Profile picture
May 3
Alito’s draft: “The Constitution makes no mention of abortion.”

Other rights or powers that the Constitution doesn’t mention, but this Court still recognizes:
-Anti-affirmative action
-Non-militia gun rights
-Money = speech
-Presidential removal power
1/
 politico.com/f/?id=00000180…
2/
 -“Takings” = regulations
- “Separation of powers” is implied, but never mentioned explicitly
- Something Roberts totally invented to strike down key parts of the voting rights act called “Equal State Sovereignty”…
3/
 This is the 11th Amendment. Show me where it says anything about sovereign immunity that prevents you from suing your OWN state.

law.cornell.edu/constitution/a…
Read 4 tweets
Jed Shugerman 🇺🇦 Profile picture
Apr 19
Let's call the "mask mandate" decision a "masque mandate."
...because it is a bizarro admin/textualism masquerade.
First, Judge Mizelle applied Chevron:
Step 1: "The statute is not ambiguous."
(How can the word "sanitation" in the statute not be ambiguous? Plainly ambiguous!)
Step 2: "Nor is the government's interpretation a reasonable one."
Even if the judge were right (which is bonkers, because I just googled "sanitary masks" and came up with 1.6M results), she is saying it is "unreasonable" (or impermissible) to think masks are sanitation.
Step Zero: I think the major question doctrine makes sense in theory, but the problem is selective application, and she applies the major question doctrine here in a way that tells us it is now just an unsustainable clown show...
Read 4 tweets

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