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Max Kennerly Profile picture
@MaxKennerly
Sep 22, 2020 • 8 tweets • 4 min read • Read on X
The ACA case is a perfect example: the plaintiffs don't have standing ($0 tax doesn't affect them), their theory is absurd (Congress can't zero-out a tax?), and the remedy is ridiculous (the $0 tax is plainly severable from pre-existing condition protections). And yet... /1
... nine Republican-appointed judges who have reviewed the ACA case have approved this thrice-ridiculous claim. A district judge adopted the whole thing. Two circuit judges adopted the first two parts, said the third part needs more analysis. Six more circuit judges agreed. /2
There's no way to reconcile the ACA lawsuit with basic, longstanding doctrines in the law like standing and severability. The case keeps winning so Republican judges can enact policy changes voters hate and Congress rejected. /3

supremecourt.gov/DocketPDF/19/1…
supremecourt.gov/DocketPDF/19/1…
The problem isn't just Republican judges undoing the work of Congress. They'll happily expand statutes for political reasons. The Voting Rights Act (1965) was held to be outdated, but the Arbitration Act (1926) defeats everything before or after it. /4
The courts even mess around with the timing of cases for political reasons. Cases bad for Republicans get slow-rolled and dragged out past elections. Cases good for Republicans get rocketed to the top, enjoying immediate relief via stay orders. /5
The problem is getting much worse. The bar for ABA-qualified isn't high, and doesn't account for ideology. Clinton had 3 not-qualified judges confirmed. Obama didn't even nominate any. GW Bush and Trump had 12 confirmed, with 1 pending. /6
I hear Kavanaugh "radicalized" conservatives. Sure, whatever—but even before Ford's allegations he was obviously picked solely to advance partisan politics. His entire career was Republican politics, even his brief stints at Kirkland & Ellis. /7
All of which is how we end up here, with proposals to add SCOTUS seats (which frankly should've been done with the addition of new federal circuits) or to abandon judicial review. There aren't any other options. Republicans broke the federal courts. /end

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More from @MaxKennerly

Max Kennerly Profile picture
Feb 14, 2023
This article is a good starting point for the East Palestine derailment. The info circulating on social media has been suboptimal, to say the least. Grab a cup of coffee and let's go over everything from vinyl chloride to electronic brake regulations.
/1
20 miles *before* it derailed, the 150-car train was already sparking/burning. A "hotbox" detector in Salem, OH, should've picked that up and alerted the crew. It's unknown if it did, but seems unlikely or they would've hit the emergency brake then.
/2
Upon derailment, a bunch of stuff was burning. Some was in the normal range of "stuff on fire," like the semolina and frozen vegetables, and some was nasty but not unusual (polyethylene & polyvinyl), but some of it was uniquely hazardous.
/3
Read 17 tweets
Max Kennerly Profile picture
Sep 16, 2022
That's not what FL & TX are doing. They could move more people if they coordinated with other states; they refuse. And they're not trying to save money, they're spending a ton of money to sporadically move a handful of people in ways that maximize chaos and media coverage.

1/5
TX AG Paxton is a huge liar, but let's take his numbers at face value. (The biggest number there is likely a total fabrication.)

If "cost" is the issue, why spend nearly $3 billion on border security to reduce an $850 million expense?
texastribune.org/2022/04/18/tex…

2/5
And Florida can hardly complain about "bear the brunt of the cost" to Massachusetts. MA is a net giver; FL is a net taker.

From 2015-2020, Florida took $383 billion more from the federal gov't than it paid in.

rockinst.org/issue-areas/fi…

3/5
Read 5 tweets
Max Kennerly Profile picture
Aug 9, 2022
I guess it was inevitable thanks to Trump's quest to be involved with every aspect of American law: let's talk about federal magistrate judges.

Many moons ago, I clerked for one. (I recommend law students consider it, it was a great and useful experience.)
/1
United States Magistrate Judges aren't appointed by the President nor confirmed by the Senate and they're not lifetime appointments. They come to the position through a long process including a merit selection panel and a vote of the active judges in the district.
/2 Image
If you've ever heard the phrase "lawyer's lawyer," well, U.S. magistrate judges are judges' judges. It isn't flashy. It's not political. They don't get to write soaring rhetoric.

But day-in, day-out, they do a lot of judging stuff that needs to get done. Like search warrants.
/3 ImageImage
Read 7 tweets
Max Kennerly Profile picture
Apr 5, 2022
aaaannnnd it turns out Musk's SEC disclosure (which claimed he was exempt from a 13D report because he's a "passive" investor) was both late and just plain false, as Twitter just disclosed he has an agreement to be appointed to their board: sec.gov/ix?doc=/Archiv…
Seems the "great value" Musk will provide is being restricted from owning more than 14.9% of Twitter, which I guess we can say is a win of sorts—damage mitigation—for the Board. The more he owns, the easier it is for him to exert control, such as by replacing board members.
So:
March 14 - Musk hits the 5% ownership line
March 24 - misses deadline for reporting purchases
March 25 - posts poll / tweets about Twitter operations
April 4 - first filing, wrong form, falsely claims passive investor exemption
April 5 - comes clean
Read 4 tweets
Max Kennerly Profile picture
Mar 5, 2022
It would be dysfunctional to "promote domestic oil/gas production." Production is at the level chosen by the industry based on market forces. If that's causing harm, we shouldn't subsidize it, we should admit private oil & gas markets are a failure and nationalize them.
/1
Bear in mind, domestic oil and gas prices bear no relation to domestic supply and demand. The U.S. does not have a shortage of oil or gas. We have a huge excess of natural gas that we export. We have a bit of an oil oversupply (compared to 2000-2014) which is winding down.
/2
Instead, we have a system in which private oil & gas companies can, for profit, drill on public lands, shift international price movements to U.S. consumers, and then transfer wealth upwards via dividends and stock buybacks instead of investing in production. Neat trick, huh?
/3
Read 7 tweets
Max Kennerly Profile picture
Mar 1, 2022
This thread is just strawmen. Progressive millennials don't "buy into American supremacy" at all. Their views aren't built on U.S. dominance, but on U.S. foreign policy's repeated failures in Latin America, Africa, and the Middle East. And they don't "tolerate imperialism."
1/4
Foreign policy views among progressives vary, but most believe some version of: U.S. "realpolitik" leaders like Kissinger and Rumsfeld weren't clear-eyed realists, they were clowns, ideologues, profiteers, and war criminals who made the world worse and the U.S. less safe.
2/4
The default posture of most progressives thus isn't to "buy into American supremacy," it's to be skeptical of it. It's to look at Yemen & Somalia and ask if we're helping or making things worse, recognizing that, historically, the answer was often the latter.
3/4
Read 4 tweets

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