Julian Davis Mortenson
@jdmortenson
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watch as she buckles and bends but never breaks
Ann Arbor, MI
Joined May 2014
“‘The executive power’ granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning … was something almost embarrassingly simple: the power to execute the law.”
theatlantic.com
I reviewed more than a thousand publications from the founding era, and discovered that “executive power” doesn’t imply what most scholars thought.
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Say what you will about history as a lens for existence, say it’s a font of dark equanimity.
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Like Shalev, I am not a fan of dictionary bingo. But originalists sure have been—and unitary executive theorists most of all. That’s why this is such a lovely lawyers' argument against what historians know to be wrong. Tight. Clear. Clean. And forceful.
yalejreg.com
This blog post draws an unlikely—but potentially quite important—connection between Congress’s power to “appropriate” and the three “vesting” clauses of the Constitution. It is an axiom of separation...
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great 🧵 identifying a new textual problem with unitary executive theory. Per Justice Thomas, 18c dictionaries had a verb meaning “to assign for EXCLUSIVE use”—ie, the exact thing UET fans wish the vesting clause said. But that verb was NOT “to vest.” It was “to appropriate.” 🤔.
This raises the question: If there was a word (i.e., "appropriate") that meant to signal exclusivity, why did they use the word "vest," instead? . "The Executive power shall be APPROPRIATED to the President of the United States" actually has a nice ring to it.
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great 🧵 identifying a new textual problem with unitary executive theory. Per Justice Thomas, 18c dictionaries had a verb meaning “to assign for EXCLUSIVE use”—ie, the exact thing UET fans wish the vesting clause said. But that verb was NOT “to vest.” It was “to appropriate.”🤔.
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RT @Shalev_Roisman: I just published a blog post on the terrific Yale JREG Blog that draws an interesting--and potentially important--con….
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god almighty listen to yourselves. your colleagues certainly are.
ideological screening BUT FOR WHO’S BEARD TUGGING GETS ATTENTION.
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ideological screening BUT FOR WHO’S BEARD TUGGING GETS ATTENTION.
ideological screening BUT FOR WHO JOURNALISTS CALL.
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ideological screening BUT FOR WHO JOURNALISTS CALL.
ideological screening BUT FOR LAW HIRING.
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ideological screening BUT FOR LAW HIRING.
ideological screening BUT FOR COUNTERMAJORITARIAN JUDICIAL HOLDINGS.
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ideological screening BUT FOR COUNTERMAJORITARIAN JUDICIAL HOLDINGS.
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Step 1 - rampage thru precedent and political tradition bc This One Principle requires it . Step 2 - once the UET regime is in place, admit there isn’t any This One Principle. It’s super gross. And a very big deal. Part of me is honestly still shocked the court chose to say it!.
That this claim of principle was a sham has long been obvious to people in the weeds on this stuff. But this is the Supreme Court admitting it!! The radical activism of these cases doesn’t rest on principle. It never did. It rests on policy preference. That’s really, really bad.
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RT @dilanesper: this. Remember nothing in the Constitution actually says "POTUS can fire people". The textual hook is VERY generic. But if….
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That this claim of principle was a sham has long been obvious to people in the weeds on this stuff. But this is the Supreme Court admitting it!! The radical activism of these cases doesn’t rest on principle. It never did. It rests on policy preference. That’s really, really bad.
“We aren’t rampaging through the modern administrative state bc we oppose any measure of independent expert decisionmaking as a **policy** matter. Heavens no. We do it because <deep sigh> the constitution requires us to. It says ‘the executive power’, and we must follow the law.”.
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“We aren’t rampaging through the modern administrative state bc we oppose any measure of independent expert decisionmaking as a **policy** matter. Heavens no. We do it because <deep sigh> the constitution requires us to. It says ‘the executive power’, and we must follow the law.”.
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I am puzzled by the serenity with which @jadler1969 and @WilliamBaude describe Wilcox’s carveout for the Fed. It’s an admission that the unitary executive project was sold on false premises. For a radically activist line of cases, that’s a big deal!.
reason.com
A defense of the Supreme Court's decision to let President Trump remove members of the NLRB and MSPB.
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RT @IlyaSomin: My initial comments on today's big ruling in our case against Trump's "Liberation Day" tariffs, with key excerpts from the d….
reason.com
The Court of International Trade just issued a decision striking down Trump's "Liberation Day" tariffs and other IEEPA tariffs.
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RT @nicholas_bagley: let's talk about C I T.let's talk about M Q D.let's talk about all the good things.and the bad things.that may be.
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But the statutory problem with "Balance of Payments" tariffs? Man, I absolutely did not see this coming. But challengers (and the court) have a really good argument. 9/9
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