David Froomkin

@dfroomkin.bsky.social

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Incoming assistant professor, University of Houston Law Center. I write about democracy and the separation of powers. david.froomkin.com

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Yes, this is absolutely right. In Federalist 70, Hamilton says that the great innovation of the American system of government is to have an accountable chief executive—including subjecting the President to prosecution.

You absolutely did. Further passages are explicit that this is the difference between a republican unitary executive and a king.

The irony of the Biden kerfuffle is that the portrait of him as a mere mouthpiece for his party—intended as a devastating criticism—is actually a better thing for a chief executive to be than an idiosyncratic and unpredictable charismocrat.

The core problem with the Court's conservative majority is that they insist they are "formalists" but then go ahead and invent rules out of whole cloth that appear nowhere in the Constitution—and often are contradicted by its text.

The Constitution says that in cases of impeachment, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." It does not except the president. But what impeachable offenses aren't covered by the new doctrine of immunity?

Why does our democratic ethos seem to embody some sort of Führerprinzip? Why does it matter if Biden has good days and bad days, as long as he has appointed good people? The ongoing freak-out only makes sense against the backdrop of the ascent of the unitary executive theory.

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Tl;dr : legislation papers.ssrn.com/sol3/papers....

At 1000 followers I will explain how to reverse Loper-Bright, the major questions doctrine, Jarkesy, and the destruction of the administrative state.

THE EXISTENTIAL CHALLENGE TO THE ADMINISTRATIVE STATEpapers.ssrn.com A set of constitutional claims today strikes at the heart of the administrative authority of the federal government. Claims regarding administrative policymakin

My big takeaway from tonight's debate: presidentialism is a bad system of government.

Justice Barrett's argument in Rahimi against a "use it or lose it" standard for legislative power is absolutely right. It's a shame the Court has failed to recognize the same about agency authority in its major questions doctrine cases.

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Cops who shoot and kill unarmed Black men get less aggressive treatment than this guy who gives rich white guys tickets.

The inside of this daily mail story has some amazing beats, including a childhood photo of the cop scraped from facebook and the reporter apparently doorstepping his parents.

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Maya Pines Froomkin, 1928-2024 presswatchers.org/2024/06/maya...

Maya Pines Froomkin, 1928-2024 | Press Watchpresswatchers.org Personal The world lost an amazing person this weekend: My mom. Allow me to tell you a bit about her.

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Paper conditionally accepted to BJPS! "Beyond Retraumatization: Trauma-Informed Political Science Research" (osf.io/rvksp) Robust ethical frameworks improve the experience of research participants and help us get richer, more complete data. polisky

OSFosf.io

One of Robert Dahl's great insights: "To assume that this country has remained democratic because of its Constitution seems to me an obvious reversal of the relation; it is much more plausible to suppose that the Constitution has remained because our society is essentially democratic."

If judicial review is a legislative power, then clearly it is unconstitutional: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." U.S. Const. art. I, § 1.

"ah this legislative power that overrules the other branches of government is so obvious that we don't even need to write it down" is not how the rest of the constitution was drafted bsky.app/profile/aih....

Important diagram

credit to wikipedia

I am delighted to see "The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections," coauthored with Eric Eisner, in print in Arizona State Law Journal. Coauthoring this piece was such a pleasure -- stay tuned for more from us. papers.ssrn.com/abstract=439...

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i think the best way to understand the supreme court's conduct in trump v. united states is as an explicit effort to intervene in the 2024 election on behalf of the former president. it is a gross abuse of power on par with dred scott and deserves to be met with sanction from the elected branches.

My thoughts on the oral argument and what the Court is likely to do:

Another shocking example of the normalization of criminality among American elites. Apparently members of the White House press corps habitually—and "proudly"—steal objects from Air Force One. www.politico.com/newsletters/...

The real D.C. crime wavewww.politico.com

So many of the country's problems would be solved by expanding the House of Representatives. Not only would it fix the malapportionment of the House, it would reduce the Senate's distortion of the Electoral College.

The NY Daily News oddly suggested that Father Flynn’s guilt is clear here—which is not only inimical to the spirit of the play but a baffling response to Schreiber’s moving and humane performance. “Doubt” has layers, but it is not a story about the righteousness of prosecution.

I saw the excellent Broadway revival of “Doubt” the other day, and I’m glad to see it has generally received critical acclaim. Liev Schreiber and Amy Ryan’s performances are less explosive than those in the film but in many ways more vivid and compelling for the restraint.

Let Biden be Biden

More than 6 in 10 who watched Biden’s SOTU had a positive reaction to the speech. 35% very positively. 62% to 38% that the policies Biden proposed will move the US in the right direction These are really good numbers for Biden

CNN Poll: More than 6 in 10 SOTU viewers had a positive reaction to Biden’s speech | CNN Politicswww.cnn.com More than 6 in 10 Americans who watched President Joe Biden’s State of the Union address had a positive reaction to the speech, according to a CNN Poll conducted by SSRS, with a smaller 35% reacting v...

Federalism for me but not for thee.

I expect roughly 95 percent of con law profs to have students read Trump v. Anderson alongside Bush v. Gore, and the other 5 percent should. The similarities are eerie.

Trump v. Anderson seems straightforwardly to excise the 2/3 rule from Section 3. Are there other cases of the Court so blatantly ignoring constitutional text? I can think of examples of twisting language (e.g. Hans v. Louisiana) and of cabining language (Slaughterhouse Cases), but not this.

(1) Congress can (only) remove the Sec. 3 disability by 2/3 vote. (2) Imposition of the Sec. 3 disability requires Congress to pass a statute. (3) Congress can overturn a statute by majority vote -- thus removing the Sec. 3 disability. The Court says (2). Then contradiction between (1) and (3).

I used to think that courts at least had to apply the most precise constitutional requirements as written. But the majority seems pretty comfortable with taking a red pen to the Constitution.

"The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress [as specified in the 14th Amendment] — with the lowest bar imaginable: congressional inaction." www.nytimes.com/2024/03/04/o...

Opinion | The Supreme Court Just Erased Part of the Constitutionwww.nytimes.com Its ruling on Trump’s eligibility for the presidency contradicts the clear language of the 14th Amendment.

Is there any coherent theory of why Section 1 is self-executing while Section 3 is not? Not that the majority bothered to provide one....

It is honestly amazing that the Court has the chutzpah now to rely on Section 5 of the Fourteenth Amendment.

Interesting research (lpeproject.org/blog/the-pol...) providing some confirmation for @himself.bsky.social's classic criticism of "left neoliberalism" (crookedtimber.org/2011/07/19/2...).

The Political Effects of Neoliberalismlpeproject.org Why have less-educated Americans, long the base of the Democratic Party, flocked to Republicans in recent decades? New research shows that much of this change can be explained by the Democratic Party’...

My article on the legal dimensions of Senate reform has just been published in the Utah Law Review: dc.law.utah.edu/ulr/vol2024/.... My father and I coauthored this piece as a pandemic project, and it means a lot to me to see it in print. I hope it stimulates more creative thought about solutions.

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New paper (w/ Ed Fox): The super-rich borrow against their big stock gains & consume from that, paying no tax. This is unfair. We show how to fix this and raise ~ $100 billion in a progressive, efficient way. ssrn.com/abstract=471... 1/

Such a wonderful feeling to see my first law review article appear in print today. I am enormously grateful to the editors at JREG. www.yalejreg.com/print/the-no...