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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Reply to

Chris Bertram

I've always found it puzzling that people view Rawls this way. While I'm persuaded by Cohen's criticism, Rawls's position is considerably more progressive than any actually existing institutions (and I would argue more progressive than a lot of left-wing ideas rooted in Locke/Marx).

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?

See also Trump v. Anderson (reversing the text's rule for lifting the Fourteenth Amendment Section 3 disability).

Reply to

Jacob T. Levy

And "according to Law" here is a constitutional term of art meaning that statutory law controls. I.e. whether there is a presidential exception is for Congress, not the court, to decide.

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.

Reposted by

David Froomkin

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.

Reposted by

David Froomkin

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.

Reposted by

David Froomkin

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.

Reposted by

David Froomkin

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

Reply to

Stay Spicy, kids ♾️

The argument in the briefing seems to be that because Congress passed legislation to enforce Section 3, Section 3 is not self-executing. But just because Congress did legislate doesn't mean that it had to: Congress could have been wrong, or it could have been over-cautious.

Reply to

Stay Spicy, kids ♾️

We certainly don't want to deny that Congress has enforcement power under Section 5, only to argue that Section 2 is self-executing and doesn't require enabling legislation. Congress has never enforced Section 2, though presumably it could.

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...

Reply to

Kevin Elliott

It's a great piece, and I think Ian gets it exactly right—indeed, the more deliberative democracy fetishizes consensus, the less it is a tool for emancipation.

Reply to

Andrew Sabl

Interesting - I certainly see how Doubt may invite a History Boys reading (two plays from the same year!). But one of the things I find most interesting is how Shanley’s text tempts us to rush to judgment even as we know there is no proof—which I think illustrates the real theological/social point.

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.

Reply to

Tom Cross

True that presidential participation would be necessary for legislation, but I don't think that avoids the contradiction. And yes, the presumption is definitely that provisions of the Fourteenth Amendment are self-executing!

Reply to

dmlundeen.bsky.social

There have been other Roberts Court decisions with worse consequences, but in some ways Trump v. Anderson has done the most to make me doubt the plausibility of our most basic understanding of what courts do.

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.

Reply to

Scott Monje

I haven't looked into it (though I would be surprised), but other scholars have observed that it is very hard to reconcile Trump v. Anderson with originalism. See originalismblog.typepad.com/the-original... and reason.com/volokh/2024/....

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...