At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable. 2/ You can watch it here:
@FedSoc @Harvard_Law
twitter.com/i/broadcasts/1…

Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles
papers.ssrn.com/sol3/papers.cf… 2/ Table of Contents:
#newlawrevarticles
papers.ssrn.com/sol3/papers.cf…

As long as I am admitting my errors this week:

My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:

These purely internal records like paystubs could count for intent to defraud.
1/ 2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below:

Nevermind.
I'm a naive fool.

https://twitter.com/jedshug/status/1754888260961050694

Unfortunately, both @rparloff & @EricColumbus are right:

I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."

Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/ 2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.

I’ll live-tweet the 14th A. Disqualification oral arguments this morning. 🧵

I think there are 5 issues. One is easy (“officers” includes presidents), 1 is a mild problem, and I have strong concerns about 3 others, especially whether Jan 6 or speech count as “insurrection” I’m flagging this article on 1st Amendment concerns about Colorado’s specific ruling by @Thomas_A_Berry
It raises 1 of several problems specific to Colorado’s trial court basis.

@ARozenshtein & I have published a solution in future cases.

https://twitter.com/thomas_a_berry/status/1755592690585006197

I'm interrupting my 2-month Twitter hiatus b/c I've just found a highly relevant speech from the Ratification debates (1788):
Against Presidential Immunity & Unitary Executive theory (interpreting the Opinions Clause).
Future SCOTUS Justice Iredell, NC Convention, 7/28/1788:



2/
From Elliot's Ratification Debates, Vol. 4, p. 108-110.
NC Delegate James Iredell, SCOTUS Justice 1790-1799:
On presidential criminal liability, to explain the Opinions Clause vs. a British cabinet, he first explains that a president is (obviously) different from the King:

I'll live-tweet some events from @FedSoc National Lawyers Convention "Originalism on the Ground" (Panel #1), Paul Clement, Hon. Britt Grant, Hon. James Ho, Hon. Joan Larsen, @BMeyler (Stanford Law), Hon. Jason Miyares, @ElizabethWydra (@MyConstitution), Thursday 9:15-11:15
1/ 2/ I'll review previous points, but here is a question I'm especially interested in. Moderator Hon. Larsen asks @bmeyler about the legal academy and historians on originalism.
@bmeyler says legal scholars/historians have more time to dig, and sometimes the research takes years...

The Major Question Doctrine is Purposivism, not Just Anti-Deference: a thread.
Barrett's Student Debt concurrence tried to defend the MQD as textualism, but fumbled into the opposite.
Color-coding & annotating her opinion, p. 5-16:
Red = textualism
Blue = unwitting purposivism 2/ Her opening "short answer" quoting FDA v. Brown & Williamson is a strange start for a textualist (p. 5).
This early MQD case was social/political context (purpose) over text.
As a matter of text & dictionaries, tobacco plainly is a “drug,” and cigarettes are "devices":

Affirmative Action dissents from Sotomayor and Jackson (and Kagan concurring) have an enormous amount of *originalist* historical evidence of race-conscious remedies from the 1860s.

A thread of screenshots from their dissents. Then I’ll add from the majority.

Sotomayor dissent:





2/ Jackson highlights & embraces Sotomayor’s historical analysis of the 1860s:
P. 2: “Our country has never been colorblind.”

Blogpost:
"A Potential Problem for the Trump Indictment":
Has a NY court ever allowed a conviction from this statute, NYPL 175 requiring "intent to defraud," based on an internal business record, i.e., on which others are not likely to rely?
shugerblogcom.wordpress.com/2023/04/04/a-p… 2/ I haven't done a deep dive. But I have checked the posts and essays by vocal pro-indictment experts arguing that the case is clear.
National reporters have asked this question for over a week. So far, they haven't answered it. The indictment is here:
manhattanda.org/wp-content/upl…

What I'll be looking for today:
The NY filing crime requires "intent to defraud."
A "speaking indictment" showing:
A. A tax scheme w/ 1. a concrete loss to NY state & 2. evidence of actual intent;
Or
B. Another underlying non-election crime.

But not C: Any campaign offense. 1/ 2/ Why am I hoping not to see reliance on a campaign finance offense?
The federal statute has a very broad preemption clause (below) that has been interpreted to have exceptions only if the campaign violation is "tangential."
It isn't tangential here.

https://twitter.com/jedshug/status/1642883962635968513?s=20

If you want to understand what’s going on, then turn off the cable tv news and read a newspaper or a legal blog. E.g., it is not legally significant that fed prosecutors got a cooperating @MichaelCohen212 to add, on top of 7 tax & bank fraud pleas, an 8th plea - cherry-on-top go-after-Trump deal - for a federal crime.
This is a state case under state law.
@AriMelber @thereidout @JoyAnnReid

Cautionary @alegalnerd thread on potential Trump indictment by @ManhattanDA:
If this indirect fraud 175.05 with a high mens rea requirement is the only basis, “the case is in serious jeopardy of being dismissed.”
Even worse: a trial & a unanimous “not guilty” verdict.

https://twitter.com/alegalnerd/status/1637164140799332352

2/ In other words, if this is the case (a big “if”), this seemingly unprecedented theory for a state prosecution would be a serious legal and political mistake. (Regardless of Trump’s threats)
I hope @AlvinBraggNYC @ManhattanDA and his staff are taking these concerns seriously.

I’ve been interviewed by @briebriejoy twice. Total professional respect, even when we sharply disagreed on student debt. During the 2d interview, @YuPersis’s child popped into her office. Brianna was delightful & greeted the child warmly.
1) Bethany’s story seems unlikely to me…

https://twitter.com/bethanyshondark/status/1636023830052233216

2) Even if true (and I’m saying I doubt it), Bethany’s ridiculously sex-panic paranoid Tweets *preceded* the interview!
She can only blame Brianha if Brianha had invented a Time Machine and forced Bethany to tweet crazy tweets in the past:

https://twitter.com/jedshug/status/1635827235125862401

I loved Everything Everywhere All at Once, I get the chills just from the 10 second clips.
This is such a well-deserved award for Waymond/Ke Huy Quan. What an awesome role. (My Purim costume was the Everything Bagel...
A huge circle of black felt, with glue stick and Trader-Joe's-everything-bagel shaken onto the glue.)

An "outstanding" standing mystery about the Biden Student Debt Litigation & MOHELA:

In this @CNBC story by @AnnieReporter, I asked:
"Where was the Missouri SG? It’s like, Where’s Waldo?”

The answers only lead to more questions about standing... (Thread)
cnbc.com/2023/03/08/sup… 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.

https://twitter.com/jedshug/status/1630619814199803930?s=20

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.”

https://twitter.com/BenzionSanders/status/1629935699007774724

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?

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

https://twitter.com/beau_baumann/status/1632412790005669888

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"

"Emergency" Episode 11 of @CnCrisisHotline:
"Biden Student Debt Oral Arguments & Emergency Powers"
@JulieCSuk & I talk with @LizaGoitein (Sr. Director @BrennanCenter Liberty & National Security) & @davidson_nestor (Director @UrbanLawCenter) @FordhamLawNYC
podcasts.apple.com/us/podcast/con… 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/…

I’ll live-tweet today’s Supreme Court oral argument on the Biden student debt waiver. 1/

Here’s my short essay explaining a new approach to Major Questions that checks both the Imperial Judiciary and the Imperial Executive:

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.