Ilan Wurman
@ilan_wurman
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Law prof: administrative law, constitutional law. University of Minnesota. Latest: The Second Founding: An Introduction to the Fourteenth Amendment.
Phoenix, AZ
Joined October 2012
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Last Seen Profiles
The Arizona Supreme Court has just granted our petition to transfer our appeal of the nondelegation issue/the emergency powers statute, and some privileges or immunities issues. The bar owners (and gym owners) will soon be heard in our highest court!
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Election-day news. My faculty has voted in favor of my tenure. I am so thrilled and honored—and also a bit relieved as I went up a bit earlier than the norm. I am grateful for my many supporters at ASU and elsewhere. Not a done deal, but I’ll be celebrating no matter the returns!
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We won! Final ruling in our Zone homeless encampment case in Phoenix. And the judge granted our attorneys' fees. The tide is turning.
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What this article doesn’t report is that the authors all work for the Arizona Department of Health Services, not CDC. And they explicitly acknowledge their findings are correlations, not causation. I cross-examined Dr. Christ about this yesterday.
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Not quite right. The Founders--every single one of them--expected the Constitution's meaning to remain "fixed" over time (unless amended). Here are some statements from Madison, Hamilton, Marshall, and Webster. THREAD 1/8
Another demonstration that the Constitution’s “original meaning” was that its meaning would take shape over time. I recommend reading this elegant summation:
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What is originalism? Here I answer several frequently asked questions, and debunk several myths and misconceptions. This is my first contribution to
@ConversationUS
-- please share! via
@ConversationUS
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Judge’s ruling came in. We won on the off-sale privilege issue. Governor Ducey cannot violate existing law and give restaurants the privilege of selling alcohol to go, which bars paid for. If Gov Ducey wants to do that, he needs to call the legislature into session.
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The Arizona AG has filed a brief this morning IN OUR FAVOR! Argues that distinction between series 6/7 "bars" and series 12 bars-in-restaurants is arbitrary/unlawful and that the Governor has exceeded his emergency authority.
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Governor Ducey has pulled a fast one. The new EO does NOT eliminate standing room and distancing restrictions, which are what actually limit capacity. And it doesn’t repeal the EO closing bars. Here is Dr Christ saying BARS ARE STILL CLOSED (35:45-36:40)
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Got my first Supreme Court citation today! Justice Gorsuch cited me in concurrence. (And if you disagree with today's opinions, that's fine! I'll go with no publicity is bad publicity.)
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This morning, I filed a petition for special action in the Supreme Court of Arizona on behalf of 26 small business owners whose bars have been shut down by Governor Ducey’s executive orders. I will link to my briefing for anyone to use. 1/10
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One of my clients has a big pool hall but can't open his billiards *even though* he suspended his liquor license and no longer serves alcohol. Because he's a series 6. Yet Dave& Busters, Main Event, and Bowlero all continue to offer pool AND alcohol. What kind of justice is this?
Arizona businesses continue to be arbitrarily decimated by our state.
A bar is a bar is a bar. But appears not in Arizona.
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Some professional news! After a long AALS process, kind of fun in its own way, I’m THRILLED to announce that I get to stay
@ASUCollegeOfLaw
as an associate professor of law next year, on the tenure track. This also comes with a courtesy appointment
@ASU_SCETL
, which is an 1/2
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After yesterday's absolutely ludicrous guidelines from
@AZDHS
and
@dougducey
, I've been flooded with requests from bar owners to join this lawsuit. The guidelines--which don't apply to restaurants that serve alcohol, private clubs, etc.--effectively closes these bars for good. 1/
Our reply brief is in. We’ve teed up important nondelegation questions and a strong state privileges or immunities claim in the Arizona Supreme Court. 1/7
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We will need entirely new wardrobes but we are excited for a new adventure after six great years at ASU.
We are thrilled to welcome
@ilan_wurman
to our faculty as an assoc. prof. of law, with tenure, beginning in the 2024-25 academic year. Wurman is currently an assoc. prof. at
@ASUCollegeOfLaw
where he teaches administrative law and constitutional law.
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Originalism is a legal methodology, not a political ideology. But, it is “conservative” in one sense: it stands for the proposition that we “conserve” the laws we currently have, until they’re properly changed—and that’s quite a sensible conservatism!
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It’s ok to think that the Title VII case is genuinely hard, and that both Gorsuch’s and Kavanaugh’s opinions are textualist/originalist.
One can agree on method and still disagree in particular cases. That all the opinions were textualist is a huge victory in and of itself!
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Maybe I’m missing something—and I don’t mean to downplay the importance of the Fifth Circuit’s decision—but it seems to me lots of folks are overreacting. The court did NOT dismantle SEC’s enforcement powers, and the SEC is NOT all of a sudden unconstitutional after 90 years. 1/
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As my AZ Supreme Court case approaches, and for those who think Gov Ducey has done a great job. Here’s a series 11 (hotel license) from this past weekend. Yet dancing is prohibited at all my clients’ series 6/7 establishments. There is still tons of arbitrary discrimination.
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I almost can't believe it. Dozens of my clients got rejection letters today from
@AZDHS
. They can't open up. And yet this photo was taken at a series 12 "restaurant" just last week. This is so unreal....
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Was cited by Justice Thomas this morning. 😍 My second SCOTUS citation this term (and ever). Very grateful and excited. Now I just have to read the opinions! (And for those curious, my book is below.)
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Some days as an academic you’re full of self-doubt. And then some days you get emails like this from a famous professor. Both feelings are good and important.
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The ACLU, on the other side of some of my homelessness litigation, has sued my university for my emails. They want anything involving “Federalist Society,,” too. I guess that’s what they do when they can’t win on the merits. 🤷🏻♂️
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The 5th Cir. simply held that if you’re accused of committing a federal crime and the government is coming after you for civil penalties—your livelihood and property are at stake—your case should be heard in a real court with a real judge and a jury. SEC can still prosecute. 2/
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Huzzah. They finally sent me the official letter. Not effective until the Fall though so I’ll hold back the controversial tweet I was planning.
#tenure
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I originally agreed to serve as moderator in what I hoped would be a productive exchange about a topic within my academic expertise. It's now clear that for multiple reasons, that isn't going to be possible, and I've decided not to participate in tomorrow's event.
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When it’s law review submission season but you have a baby at home.
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I don’t know who still needs to hear this, but the originalist case for Brown v Board is shockingly easy and straightforward. 1/5
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Kennedy is retiring. It seems like a good time to remind everyone about this short introduction to originalism! The next Justice will almost certainly be
#originalist
and y’all might have some questions about it!
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One of my clients operates a beer/wine bar, w/ food, plenty of space. She was just denied reopening by
@AZDHS
. NONE of their proposals--25% capacity, 10PM closure, requiring food purchase--applies to series 12 "restaurants." As usual,
@dougducey
is just picking winners & losers.
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Guys...I just can't...
Video from a SERIES 12 "restaurant" on August 8, 2020.
It's a nightclub!!
And I've got MOM AND POP wine bars that are CLOSED DOWN because they're series 6! Where's the justice?
We WILL have our day in court, one way or another.
@dougducey
@AZDHS
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Our theory was simple: The Ninth Circuit decisions don't preempt state public nuisance laws. There are many actions the City can take to abate the nuisance w/o violating constitutional rights. The judge agreed. We overcame Boise and Grants Pass! 3/
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OIRA administrator just announced
@FedSoc
that when next regulatory agenda comes out in a few weeks, it'll show they've far exceeded the President's mandate to eliminate two regulations for each new one.
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Game day. Preliminary injunction hearing in the bar owners’ case starts at 9:00 AM.
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Just filed our Reply Brief in the bar owners' case in the Arizona Supreme Court. I'm uploading all the briefs (see link) for anyone to read. Expecting more amici throughout the day.
@GeneralBrnovich
's brief is already uploaded. Oral argument on March 9!
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I did a short interview with
@RepAndyBiggsAZ
to explain where things stand with our case.
Arizona has mandated that some bars, but not others, close because of the existence of COVID-19.
This is not fair nor is it scientific in any way. This extension of the Fauci-Birx doctrine of destruction is destroying thousands of lives & livelihoods.
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From the AG's brief filed this morning in our case: "Nearly six months into the declared emergency, it is long past time for the Governor to follow the constitution and convene the Legislature rather than contravene lawful statutes through executive fiat." cc
@dougducey
The Arizona AG has filed a brief this morning IN OUR FAVOR! Argues that distinction between series 6/7 "bars" and series 12 bars-in-restaurants is arbitrary/unlawful and that the Governor has exceeded his emergency authority.
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The plain reading of Section Four is that existing debts cannot be questioned; but raising the debt ceiling creates new debts. Nothing in Section Four says Congress must create new debt to service older debt. 1/3
BIDEN on the debt limit: "I have been considering the 14th amendment."
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The Governor's lawyers have decided not to call my witnesses for trial next week. They're seeking to proceed only by deposition designation. They don't want the public/media to *hear* and *see* the suffering of these bar owners.
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An 8/10 for my first rating! This made my day 🙏.
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Almost everything Prof. Chemerinsky says here about originalism is wrong. A thread. 1/6
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I think
@benshapiro
is often very smart—but he’s dead wrong about Gorsuch’s opinion. The opinion is a wonderful explanation and application of originalism. (Short thread.)
This Gorsuch decision is not originalist in any way; he acknowledges as much. It is simply a bad, outcome-driven legal decision. And it throws religious liberty, free speech, and employment law into complete turmoil.
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Defenders of liberty. W/ Tom Hatten of Mountainside Fitness.
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This is such a head scratcher. Williamson's argument that Brown v. Board can't be justified by originalism simply ignores the modern scholarship on the question. Brown v. Board is *easy* under originalism. So easy, in fact, that it takes only four tweets to explain. (Thread, duh)
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Arizona's COVID Shutdowns Threaten Constitutional Principles. My op-Ed for
@Newsweek
on our lawsuit.
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Interesting! Linguists studied phrase "bear arms," and show it had almost exclusively military connotation. But the Second Amendment protects the right to *keep* and bear arms. Here are three examples from the corpora that show "keep arms" might have been broader. 1/5
But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.
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Excellent essay by
@JeannieSGersen
, with nods to
@MJSteilen
@nikobowie
&
@jamalgreene
. But one thing that troubles me about the discourse over Dred Scott: Why don’t more scholars talk about Justice Curtis’s dissent? 1/6
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First news story about my cross-examination of Dr. Christ today.
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This restaurant with a series 12 license turns into a late-night karaoke place once a week. I don't necessarily see a problem with karaoke nights. But, why can a series 12 "restaurant" have one, but not my bar/restaurant clients with a series 6 license?
@dougducey
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That hardly seems crazy. And putting aside (for now!) the merits of the dual for cause removal and nondelegation holdings, all three holdings would be satisfied if SEC enforcement actions of this type were all brought in federal court. So that’s really what this comes down to. 3/
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This
@nytimes
review is nuts. I haven't read Ellis's book (yet), and can't be sure what he says. But the notion that Madison believed in a "living Constitution" is absolutely belied by the evidence. Just consider two statements from Madison, one in 1790 and another in 1826. 1/5
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TX, MS, CT, IA are all opening up. But
@dougducey
issues an EO that rescinds "capacity" limits. Yet what limits capacity is having to sit six feet apart, no standing, etc. The Governor has issued an order to make it *look* like he's opening up, but he's not.
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Today, we added two dozen additional bar owners to the lawsuit. We're now up to 50 plaintiffs from all over Arizona who are being crushed by the executive orders. Such important policy questions must be decided by the legislature in a representative government.
This morning, I filed a petition for special action in the Supreme Court of Arizona on behalf of 26 small business owners whose bars have been shut down by Governor Ducey’s executive orders. I will link to my briefing for anyone to use. 1/10
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I know everyone is rather preoccupied, but wanted to share that "Nondelegation at the Founding," my response to
@jdmortenson
&
@nicholas_bagley
's recent nondelegation paper, is now up
@SSRN
and is forthcoming
@YaleLJournal
.
.
Abstract attached! 1/2
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Cambridge (
@CUP_Law
) just sent me the cover of my second book, and it looks AMAZING! I am so excited to share this book with the world in a few months...
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My new paper is ready, and I'm tired waiting for an acceptance, so here it is on
@SSRN
. The paper once and for all solves the question of presidential power. All right that's an exaggeration...but I think it's probably an important intervention.
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I just learned that *another* classmate from my 1L small section
@StanfordLaw
has become a law prof. That makes 4 out of like 20 some students in the section. Here is what the other three are up to and why they're awesome. Humbled to be part of this group!: 1/4
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That's because a failure to service a debt is not the same thing as questioning its validity. A right can still be a right even if there's no effective remedy, and a debt can still be valid even if a creditor can't collect. So really unclear what Biden is thinking here.... 3/3
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I haven't been this excited and optimistic in a long time! Maybe nothing will come of this ultimately, BUT a group of progressive, conservative, & libertarian law profs & scholars just sat together for a two-day mini const'l convention under the auspices of
@ConstitutionCtr
. 1/
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MAJOR UPDATE
The Arizona Supreme Court has just dismissed the bar owners' appeal as moot. The Court interprets
@dougducey
's recent executive order, EO 2021-05, as rescinding ALL capacity limits.
I am therefore instructing my clients that they can open up 100%. 1/5
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🤭
“The discussion involves the low number of coronavirus cases emerging from bars and restaurants and how to handle that. And most disturbingly, how to keep it from the public.”
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The New York Times reported this weekend on our successful lawsuit and the final cleanup of the "Zone," the former massive open-air public homeless encampment in Phoenix.
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My con law students gave me a Valentine 😍.
Backstory: I tell them it’s ok to change their minds, that I changed my view of executive power this summer, and that “I flirted with functionalism in my youth (2017) but changed my mind 6 months later.”
My students are amazing!
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Just read my student evals, and this may be the best one I've ever gotten: Prof Wurman "puts the fun in functionalism and the OG in originalism." I admit I had to ask my s/o what "OG" meant...
My students are the best. I'm so lucky to have this job.🤩
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As an originalist constitutional law professor, I don’t understand these claims of inherent authority. The executive power is the power to execute law. If a law of congress prohibits doing x, y, or z with certain documents, the President has to comply.
2. He is free to do as he wishes with these documents, including deciding as president to remove them as he leaves office. I suspect former presidents have done so. Unless and until a subpoena is issued to search Obama’s various estates, we won’t know.
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Congress has many other ways to pay off existing debt. It could sell public lands, for example, or reduce spending. But even if Congress had no other options for servicing its existing debt, the Fourteenth Amendment argument still doesn't work. 2/3
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Apparently
@ASU
decided I was kinda sorta on my way to getting prominent enough to warrant a photo shoot today. Which should I use as my new profile pic? Photos taken
@ASUCollegeOfLaw
at the Beus Center for Law and Society (where I am lucky to have been teaching for three years).
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I've seen enough: After 134 pages, 700 footnotes, and 58,000 words, I've concluded that the conventional wisdom about incorporation of the Bill of Rights is seriously overstated, and possibly even mistaken. This is a first draft. Would love for others to gut check me and review.
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Slowly but surely our lawsuit is making progress. Liquor Dept now sending emails noting that guidelines also apply to series 12s. And judge said in TRO ruling that Gov Ducey likely exceeded authority in giving off-sale privilege to restaurants. Still lots to do. More TK!
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I have finally accepted that my 140-page paper is really two papers.
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Pop quiz: Is this a series 6 “bar” or a series 12 “restaurant”? Can you tell the difference? See the “bar” in the photo? This photo was taken tonight.
@AZDHS
@dougducey
1/3
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I am excited to announce my new case book, Administrative Law Theory and Fundamentals: An Integrated Approach, is coming out in May, in time for Fall courses. I am attaching the ToC in this thread. The book had to be approved by the Foundation Press (
@WestAcademic
) Board. 1/
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So whatever originalism might have to say about Roe, Brown and Loving are not and never will be on the chopping block. Btw for more on the original meaning of the Fourteenth Amendment, check out my short book! 5/5
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Ever wanted an intro to
#originalism
& the
#founders
? This book is for you, and it's now available! via
@amazon
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The author says that Chief Justice Marshall believed in living constitutionalism because he said in McCulloch that the Constitution was "intended...to be adapted to the various crises of human affairs." This is a common misinterpretation. A thread! 1/7
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This paper, “Reversing Incorporation,” was many years in the making. I’m so thrilled it’s finally out after the tremendous efforts of the editors
@NotreDameLRev
.
In “Reversing Incorporation,”
@Ilan_Wurman
argues against the idea that the Privileges or Immunities Cl. incorporates the Bill of Rights, because history shows the literature conflates the rights the first 8 amendments secure with the amends. themselves.
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Originalism isn’t a “facade” for politically conservative results. Vermeule is not originalist, so his
@TheAtlantic
essay isn’t representative of originalists.
Here’s a short primer on the connection between originalism and conservatism. Three quick points in three tweets.
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Curtis demonstrated that free blacks were citizens of five states before the adoption of the Constitution. The Constitution therefore took them as it found them, because nothing in the Constitution strips their citizenship, nor does Congress have an enumerated power to do so. 3/6
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In Portland for a workshop with some political scientists and look what I find on the shelves of Powell’s Books
@Powells
. Go
@CBHessick
.
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I deposed Dr. Cara Christ and the liquor director yesterday for our case. Both are very nice and well meaning. But the preliminary injunction hearing next week should be interesting. More to come....
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Excited to teach a seminar on presidential power for the first time this term. (Still a few spots left for this 8AM course!)
Here is the syllabus. Particularly excited to rely on old and cutting edge scholarship. Still open to revision and suggestions! (remainder in next tweet)
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I am super excited for my first crop of students ever next week, who were crazy enough to sign up for an 8:30 AM administrative law class. If I make them half as excited as I am, I think it’ll have been a success!
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If you thought this wasn’t the case to watch:
@AZDHS
,
@maricopacounty
, the
@AZChamber
&
@AZRegents
have all filed briefs in support of
@dougducey
—and there may be more to come.
Fortunately, we just need the constitution on our side—and it is. Stay tuned....
Today, we added two dozen additional bar owners to the lawsuit. We're now up to 50 plaintiffs from all over Arizona who are being crushed by the executive orders. Such important policy questions must be decided by the legislature in a representative government.
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My biggest complaint is that most of these issues didn’t need to be decided. The court could have said this is a case falling within Article III judicial power, so you get a real court. Everything else would have followed from that. (Not sure the parties made the argument.) /end
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It's finally here. What you've all been waiting for. A defense (sort of) of the major questions doctrine (sort of). Tell me why I'm wrong!
Forthcoming
@VirginiaLawRev
. I'm pleased to be publishing with them for a second year in a row.
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Here’s how the petition starts: “This case is about whether the citizens of Arizona are governed by laws, or by the whims of one man.” 3/
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We did it. Because of our lawsuit, the City has cleared the Zone. And look at the huge number of folks who ACCEPTED SHELTER. Just incredible.
"Phoenix's Largest Homeless Encampment, 'the Zone,' Is Now Gone."
@azcentral
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There are so many attacks on originalism from both the Left and the Right that it makes me think we originalists are definitely on to something. 🤷🏻♂️
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We lost our TRO/preliminary injunction motion. Now I have to go prepare to teach the Slaughterhouse Cases tomorrow—which somehow seems really fitting.
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Thanks to Attorney General Mark Brnovich (
@GeneralBrnovich
) for his continued support in my litigation on behalf of the bar owners.
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To be very clear: this case isn’t about the wisdom of the Governor’s policy. It’s about who gets to decide such question in a government of laws. And the answer is—or at least should be—the state legislators. 9/
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Some progress in our lawsuit!! ADHS updated their guidance today. Prohibitions on dancing etc. now apply to ALL liquor license series. Karaoke/parlor games now *permitted* for all with certain restrictions/sanitary measures. 1/2
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They were definitely originalists. In Chisolm v. Georgia (1793), Iredell sought Constitution's "true construction" & what "framers" "must have meant." Blair its "true language." Wilson the people's intent "by fair and conclusive deductions or by direct and explicit declarations."
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Here's a doozey from the Governor's post-hearing brief: "Juul testified that Mooney’s Irish Pub made about 4,452% more revenue in the *first week* of reopening than in the entirety of July."
Yeah, because you shut him down in July so he barely made any money. Great lawyering...
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And speaking of debates, looking forward to an epic debate with
@jdmortenson
next Tuesday on nondelegation, hosted by
@HarvardFedSoc
@Harvard_Law
on Zoom.
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This case is based on state, not federal, constitutional law claims, but those claims—violations of the nondelegation doctrine, the state’s privileges or immunities clause, and, relatedly, due process—are broadly applicable. 2/
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No, originalism did not "come from" Dred Scott v. Sandford. Dred Scott was almost certainly inconsistent with the original meaning of the Constitution. 1/5
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