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Jed Shugerman Profile picture
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23 Jun, 5 tweets, 2 min read
A Unitary Puzzle, as we await Collins v Yellen:
Why are judges & academics who otherwise are decentralizing states-rights federalists and opponents of the modern administrative state so in favor of centralized expansive presidential power?
Explainer:
shugerblog.com/2021/06/23/a-u…
I also recommend this article by Stephen Skowronek from a decade ago:
cdn.harvardlawreview.org/wp-content/upl…
3/
 I filed this brief in Collins with @protctdemocracy:
The first Congress rejected “presidentialism,” that the President alone can remove principal officers, and it rejected the more specific claim of exclusive or “indefeasible” presidential removal:
papers.ssrn.com/sol3/papers.cf…
4/ My article "Vesting," questioning the textual and originalist basis for the unitary assumptions of indefensibility and exclusivity, will appear in the @StanLRev in March 2022. SSRN link: papers.ssrn.com/sol3/papers.cf…
5/ Collins v Yellen is here:
On the con law question, a predictable right vs left 6-3 decision doubling down on the ahistorical unitary executive errors in Myers, Free Enterprise, and Seila Law.
supremecourt.gov/opinions/20pdf…

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More from @jedshug

Jed Shugerman Profile picture
2 Jun
This is a non-story on the @ManhattanDA race on both @TaliFarhadian & @AlvinBraggNYC.
There is zero conflict of interest here.
Being interviewed for a federal judgeship indicates no political favor or grudge. To the contrary, this story shows Tali's merit & independence. 1/
2/ @nytimes reports HLS Prof @NoahRFeldman recommended @TaliFarhadian to the Trump administration on his own initiative - b/c she is extraordinarily qualified to be a judge.
Remarkably enough, Trump staffers actually interviewed her, a progressive Obama DOJ veteran!
3/ Tali had no contacts with Trump world, but was so impressive that they interviewed anyway.
She bravely told the Trump staff things they didn't want to hear, and the interview "became heated during a disagreement over constitutional law."
And her candidacy ended.
Good for her.
Read 12 tweets
Jed Shugerman Profile picture
26 May
Good essay by Gov. Mike DeWine on Ohio’s Vaccine Lottery.
But this gave me pause:
DeWine quoted baseball owner Bill Veeck, “To give one can of beer to a thousand people is not nearly as much fun as to give 1,000 cans of beer to one guy.”
1. NO WAY...
nytimes.com/2021/05/26/opi…
2/
 First of all, has DeWine or Veeck ever been to a party? The best parties are giving a beer to a 1000 people. The worst party is where one guy has a thousand beers.
(You know what I mean).
And this is really about happiness, diminishing utility, and policy.
3/ DeWine says his team discussed cash payments or prizes for each person who got the shot. But they loved the flashiness of the lottery.
First: Do we really know whether the lottery was more effective than cash or other prizes?
Read 7 tweets
Jed Shugerman Profile picture
25 May
Major story on the Barr DOJ memo blocking the Mueller Report and indictments.
1. Shame on the Biden DOJ today for suing to block its release.
2. Some context: Memo co-author OLC Steve Engel needs to be investigated for his role in Ukraine cover-up.
washingtonpost.com/national-secur…
2/ Obama/Biden officials need to do some soul-searching about how they expanded executive power.
They may have had good moral reasons, but they established precedents that Trump abused.
Today's filing to block is a bad sign from the Biden/Garland DOJ
3/ Thread from @ZoeTillman on Biden/Garland DOJ fighting the release of Part II of the memo.
Credit to Zoe for posting the Barr DOJ memo text. Major media should link to such documents when writing stories about them.
cc: @washingtonpost @DevlinBarrett
Read 6 tweets
Jed Shugerman Profile picture
7 May
This week, 2 major scholars re-asserted the unitary executive theory:
Akhil Amar in "The Words That Made Us," p. 357-59; @jacklgoldsmith in After Trump podcast w/ @page88.

Yet the Founding Era documents don't support them (linked @lawfareblog post).
1/
 lawfareblog.com/imaginary-unit…
2/ The unitary executive theorists that Trump appointed are getting more extreme. Yesterday, Judge Newsom on the 11th Cir. used the theory to assert ahistorical and unprecedented restrictions on Congress, standing, and private rights of action:
3/ @jacklgoldsmith is right about how the Supreme Court has ruled recently, and that limits reform. But this is how their show summary characterize the reformers’ view:

“As a legal and constitutional matter, this ‘independent’ Justice Department is a lot of nonsense.”

Nonsense?
Read 16 tweets
Jed Shugerman Profile picture
19 Apr
Forthcoming in the Stanford Law Review, March 2022:

"Vesting": Text, Context, and Separation-of-Powers Problems

("Vesting" didn't mean what the Roberts Court and the unitary theorists assume it meant).
Abstract attached.
papers.ssrn.com/abstract=37932…
2/ The unitary executive theory relies on 3 originalist pillars: Take Care/Faithful Execution Clause, Vesting, and the Decision of 1789.
It's a shell game - if you raise questions about one, unitarians point to another.
But none of the 3 pillars can support the Roberts Court.
3/ The Take Care Pillar?
@andrewkent33, Leib, and I showed in 2019 @HarvLRev that the Faithful Execution clauses (Take Care and Oath clauses) are historically duty-imposing rather than power-granting, setting fiduciary-like limits on the president.
harvardlawreview.org/2019/06/faithf…
Read 10 tweets
Jed Shugerman Profile picture
29 Mar
Tomorrow at noon:
I'll be talking with my friend Prof. @CBHessick about my book project "The Rise of the Prosecutor Politicians: A Cause of Mass Incarceration."

Focus on Earl Warren, the Japanese Internment, & the Kennedys, "liberals" tough on crime.
1/
2/ Background:
I put together a database showing that an increasing number of Sens, Govs, State AGs, & Justices rose from prosecutors' offices.
1st turning point: Progressive Era pols after short time as DA.
2d turning point: 1940s for career "tough" DAs
shugerblog.com/2017/07/07/the…
3/
 The Prison Policy Initiative @PrisonPolicy (@PWpolicy Wendy Sawyer, Alex Clark) used my data to put together this chart showing the pattern of former prosecutors becoming Sen/Gov/AG over the past decade:
prisonpolicy.org/blog/2017/07/1…
Read 5 tweets

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