Huwara video of pogrom and prayer.
I cannot unsee this.
We cannot ignore this.
The occupation is religious desecration.
“Lo tuchal l’hitalem,” Deuteronomy (Ki Teitzei):
“You may not disappear from responsibility.”
We Jews are talking a lot about how Netanyahu’s and Likud’s judicial reform endangers Israeli democracy.
This fundamentally begs the questions:
What democracy does it endanger?
Is Israel actually a democracy by any 21st century standard?
Even if one doesn’t include Gaza, Israel still denies a quarter of the population under its control for 56 years no right to vote in national elections.
Even if you can explain or excuse a 56-year occupation, you can’t call this a “democracy.”
2/ The oral advocate was *NEBRASKA* SG, James Campbell, and he was obviously weak and over his head - Justice Kagan openly laughed at him, and it was well deserved.
He had just one job: Explain why Missouri was injured through MOHELA.
He failed.
3/ Meanwhile, the Missouri SG, Josh Divine, seems to have been reverse engineered for this case:
Yale JD, clerked for Pryor, then Justice Thomas;
Served Sen. Hawley & the Judiciary Committee, seemingly when Gorsuch, Kavanaugh & Barrett got coached up. fedsoc.org/contributors/j…
Helpful summary of our Major Question Doctrine threads last week from @beau_baumann.
My question to Admin world:
Am I really on my own re-constructing King v. Burwell MQD as a majorness explanation for giving more weight to purpose, in addition to "No Chevron"? @RichardMRe
I'm sharing the lived experience of the case:
The professorial commentary in 2014-15 was that the text "state" was so clear that the only way to save the ACA federal exchanges was: 1) Purposivism over textualism to find ambiguity; 2) Chevron to allow "federal" as "permissible"
3/ The decision was stunning b/c it went much further than 1) mere ambiguity and 2) Chevron "permitting" that reading.
Roberts not only ditched Chevron...
but also held that "STATE" actually included "FEDERAL" - really b/c purpose trumped text.
That was shocking. @jadler1969
2/ @LizaGoitein discusses her @washingtonpost op-ed from August: "Biden used ‘emergency powers’ to forgive student debt? That’s a slippery slope."
She discusses the necessity and the realistic possibility of bi-partisan emergency powers reform in Congress: washingtonpost.com/opinions/2022/…
3/ Here's a link to my essay going into more depth on my amicus brief (which Kavanaugh attributed to "a professor, whom I don't necessarily agree with") and more on the points in this conversation:
"Major Questions and an Emergency Question Doctrine" papers.ssrn.com/sol3/papers.cf…
2/ C-Span just switched to Solicitor General Prelogar now.
She starts where I told students exactly where the Govt would: 1. Earlier Waivers lead to defaults among those with lower income;
2. Standing Standing Standing.
She’s making the best start of this tough uphill argument.
3/ Thomas and Roberts ask how this broad waiver counts as a “modification,” and Prelogar responds that the statute includes “waive.”
Roberts replied that the full sentence is “waive a regulation,” not waive the full debt.
Roberts says this plain meaning doesnt cover mass waiver.
I suggest a name for a common unreliable, error-prone, often misleading originalist method:
"Ctrl-F Originalism"
Control-F is the search function. Just search for the word you hope to find, then copy-and-paste the passage out of context.
Voila, it's "historical evidence."
Unitary Executive Ctrl-F Oops:
Stone didn't say this. (He rejected the unitary theory).
Sedgwick said it.
And he *also* rejected the unitary exec theory in favor of congressional power in the preceding pages.
He was describing a congressional policy choice, not Article II.
3/ Sedgwick, June 18, 1789:
This question was “subject to legislative discretion."
11 DHFFC 983
Sedgwick, June 22, opposed Benson’s motion, emphasizing “legislative determination.”
Id. at 1029-30
Ctrl-F Originalism: Not enough if you don't read more than 1 or 2 sentences.
I deeply appreciate @beau_baumann's sharp analysis & helpful critique of my amicus brief in the student debt cases and my "emergency question doctrine" alternative to the major questions doctrine.
He is generous & fair.
The "rosebud" critique is spot on. adminwannabe.com/?p=154#_ftnref3
2/ "Rosebud" is a vivid & important shorthand for his critique of the nostalgic anti-administrative-state assumptions about the past and the separation of powers.
See @beau_baumann's insightful "Americana" framing of the Roberts Court's mythology: papers.ssrn.com/sol3/papers.cf…
3/ I think it would be both fair and accurate to say that the Roberts Court traffics in these mythologies cynically.
In fact, I first stumbled onto @beau_baumann's account from his old AdminWannabe account making this astute point about the right-wing shell game.