Russell Steinthal
@steintr.bsky.social
Antitrust lawyer, computer nerd, long-suffering Mets/Jets fan
Watching NYC area weather via WatchedSky: 🌩️👀 xEqdwWB2srp6
Watching NYC area weather via WatchedSky: 🌩️👀 xEqdwWB2srp6
Although "depend entirely on" is a harder call given modern Commerce Clause jurisprudence. Perhaps Amtrak or Fannie Mae?
February 5, 2026 at 2:59 AM
Although "depend entirely on" is a harder call given modern Commerce Clause jurisprudence. Perhaps Amtrak or Fannie Mae?
Establishing a certain "uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States"?
February 5, 2026 at 2:57 AM
Establishing a certain "uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States"?
Something to be discussed in #LegalEthics classes to be sure.
February 4, 2026 at 9:54 PM
Something to be discussed in #LegalEthics classes to be sure.
This is a remarkable doc in so many ways, from the seemingly casual non-compliance w/ release orders, to the lack of resources/process at the USAO to deal w/ habeas petitions, to the gov't atty's candid statement that she shares the court's concerns b/c she "is not white" & her family is at risk.
If you want to read the transcript of the February 3 hearing where Julie Le had her "this job sucks" meltdown, now you can:
drive.google.com/file/d/1FnY2...
drive.google.com/file/d/1FnY2...
This is unreal. An AUSA talking like that in open court is about as close as you can come to a total breakdown. Never heard of anything like it.
February 4, 2026 at 9:54 PM
This is a remarkable doc in so many ways, from the seemingly casual non-compliance w/ release orders, to the lack of resources/process at the USAO to deal w/ habeas petitions, to the gov't atty's candid statement that she shares the court's concerns b/c she "is not white" & her family is at risk.
Good questions for consideration. But if you're doing that, it might be that limiting the Westfall Act would be more efficacious than the FTCA: I don't think Trump or others like him would be particularly deterred by the possibility of a judgment against the US (as opposed to personal liability).
February 3, 2026 at 3:19 AM
Good questions for consideration. But if you're doing that, it might be that limiting the Westfall Act would be more efficacious than the FTCA: I don't think Trump or others like him would be particularly deterred by the possibility of a judgment against the US (as opposed to personal liability).
It seemed fully stocked in December, but others have probably been there more recently (and it was I think only my second visit so I have limited comparators).
February 2, 2026 at 9:25 PM
It seemed fully stocked in December, but others have probably been there more recently (and it was I think only my second visit so I have limited comparators).
So in theory, the Clerk (chosen by the GOP in this Congress) could refuse to recognize certificates of election from Reps-Elect in the new Congress, but that would only be upheld if a majority of all the people there with certificates (from their states) saying they are Reps-Elecr agree.
February 2, 2026 at 4:32 PM
So in theory, the Clerk (chosen by the GOP in this Congress) could refuse to recognize certificates of election from Reps-Elect in the new Congress, but that would only be upheld if a majority of all the people there with certificates (from their states) saying they are Reps-Elecr agree.
The Clerk from the prior term is the only holdover, presiding over the House until a Speaker is elected by majority vote of the whole House. Only once that happens are Reps formally sworn in. But the Clerk's role is ministerial and subject to override by the Reps-Elect as a body.
February 2, 2026 at 4:32 PM
The Clerk from the prior term is the only holdover, presiding over the House until a Speaker is elected by majority vote of the whole House. Only once that happens are Reps formally sworn in. But the Clerk's role is ministerial and subject to override by the Reps-Elect as a body.
That's correct - the House reconstitutes itself from scratch after each election - swearing in members, electing a Speaker and other officers, adopting its rules on a clean slate, etc. On the first day of the term, there are no Representatives, just Representatives-Elect.
February 2, 2026 at 4:32 PM
That's correct - the House reconstitutes itself from scratch after each election - swearing in members, electing a Speaker and other officers, adopting its rules on a clean slate, etc. On the first day of the term, there are no Representatives, just Representatives-Elect.
That's a good point. I don't think that the language itself is reversible error. But if CA5 wanted to reverse, the absence of any real reasoning in the opinion justifying the grant of the writ is potentially problematic. But that's without comparing it to other immigration habeas grants.
February 1, 2026 at 2:49 PM
That's a good point. I don't think that the language itself is reversible error. But if CA5 wanted to reverse, the absence of any real reasoning in the opinion justifying the grant of the writ is potentially problematic. But that's without comparing it to other immigration habeas grants.
(In that thread, @masbackward.bsky.social had suggested that it might be common law unjust enrichment. The constitutional argument potentially complements/strengthens that.)
February 1, 2026 at 3:59 AM
(In that thread, @masbackward.bsky.social had suggested that it might be common law unjust enrichment. The constitutional argument potentially complements/strengthens that.)
Interesting thought. I had been wondering in another thread what mechanism there might be to claw this back, and had thought about the FCA (which authorizes trebles damages). But this would avoid the "falsity" question, assuming the Gov't has a cause of action to recoup an illegal emolument.
February 1, 2026 at 3:59 AM
Interesting thought. I had been wondering in another thread what mechanism there might be to claw this back, and had thought about the FCA (which authorizes trebles damages). But this would avoid the "falsity" question, assuming the Gov't has a cause of action to recoup an illegal emolument.
I wonder if that makes the Judgment Fund permanent appropriation (31 USC 1304) unconstitutional as applied, although there probably isn't anyone with standing to assert that claim. (There wouldn't even be the competitor standing relied on in some of the Trump I foreign emolument cases.)
February 1, 2026 at 3:21 AM
I wonder if that makes the Judgment Fund permanent appropriation (31 USC 1304) unconstitutional as applied, although there probably isn't anyone with standing to assert that claim. (There wouldn't even be the competitor standing relied on in some of the Trump I foreign emolument cases.)
Nothing that I see, other than the general hostilty of the Fifth Circuit to grants of the writ. You just sent me down a bit of a rabbit hole trying to figure out if there really was a jurisdictional bar and, when I didn't find one, decided to reply and see if I was missing something. :)
February 1, 2026 at 2:52 AM
Nothing that I see, other than the general hostilty of the Fifth Circuit to grants of the writ. You just sent me down a bit of a rabbit hole trying to figure out if there really was a jurisdictional bar and, when I didn't find one, decided to reply and see if I was missing something. :)
It's a final judgment in a civil case, so presumptively appealable - even if it's hard to believe even this SG would approve an appeal on these facts. Is there reason to believe otherwise?
February 1, 2026 at 2:40 AM
It's a final judgment in a civil case, so presumptively appealable - even if it's hard to believe even this SG would approve an appeal on these facts. Is there reason to believe otherwise?
(Any such case would presumably have to be brought by a future AG, since the Government's actual knowledge of the relevant facts, even though it chooses not to act on them, would seemingly bar a qui tam action.)
Do we have any False Claims Act lawyers/experts on here to comment?
Do we have any False Claims Act lawyers/experts on here to comment?
January 30, 2026 at 3:13 PM
(Any such case would presumably have to be brought by a future AG, since the Government's actual knowledge of the relevant facts, even though it chooses not to act on them, would seemingly bar a qui tam action.)
Do we have any False Claims Act lawyers/experts on here to comment?
Do we have any False Claims Act lawyers/experts on here to comment?
I do think we should be thinking about whether there are ways to claw back some of these ridiculous payments, whether it's politically likely or not. They seem to in essence be false claims, but I don't know enough about the FCA to know whether an action would actually lie and not be precluded.
January 30, 2026 at 3:13 PM
I do think we should be thinking about whether there are ways to claw back some of these ridiculous payments, whether it's politically likely or not. They seem to in essence be false claims, but I don't know enough about the FCA to know whether an action would actually lie and not be precluded.
Or just prohibit the use of the Judgment Fund or general appropriated funds for that purpose. It wouldn't be the end of the world to require the President to present claims to Congress for payment e.g. in a private bill. Heck, you could even call that the Founding Era practice on the matter.
January 30, 2026 at 2:12 PM
Or just prohibit the use of the Judgment Fund or general appropriated funds for that purpose. It wouldn't be the end of the world to require the President to present claims to Congress for payment e.g. in a private bill. Heck, you could even call that the Founding Era practice on the matter.
Having biked this morning for the first time since the storm, the bike lanes themselves were in pretty good shape, but agreed that the docks were an issue. I was eventually able to get one to lock after clearing some snow with gloved hands/boot heels, but am going to add a small shovel to my bag.
January 29, 2026 at 7:30 PM
Having biked this morning for the first time since the storm, the bike lanes themselves were in pretty good shape, but agreed that the docks were an issue. I was eventually able to get one to lock after clearing some snow with gloved hands/boot heels, but am going to add a small shovel to my bag.
1.3 pages per paragraph?!? Can you imagine trying to file an answer to that?
January 29, 2026 at 5:42 AM
1.3 pages per paragraph?!? Can you imagine trying to file an answer to that?
It's theoretically a felony for any officer or employee of the USG to knowingly or willfully spend in excess of an appropriation (subject of course to certain exceptions), but I wouldn't expect DOJ to prosecute if the spending is at the direction of the WH.
31 U.S. Code § 1350 - Criminal penalty
www.law.cornell.edu
January 29, 2026 at 5:27 AM
It's theoretically a felony for any officer or employee of the USG to knowingly or willfully spend in excess of an appropriation (subject of course to certain exceptions), but I wouldn't expect DOJ to prosecute if the spending is at the direction of the WH.
Neat! Found my kids' school and where my apartment should be, although it doesn't look like you can zoom enough to actually distinguish it from the other buildings on the block. :(
January 29, 2026 at 5:08 AM
Neat! Found my kids' school and where my apartment should be, although it doesn't look like you can zoom enough to actually distinguish it from the other buildings on the block. :(
Wow, I misspelled "official" twice in the same post, and not just as a cute way to get exactly to the character limit... Ugh.
January 29, 2026 at 5:01 AM
Wow, I misspelled "official" twice in the same post, and not just as a cute way to get exactly to the character limit... Ugh.
This isn't the biggest problem w/ the idea, but if they take it seriously it seems to violate 28 USC 516, which provides that, "except as otherwise authorized by law," all litigation in which the US is a party "is reserved to" officers acting "under the direction of the Attorney General."
January 29, 2026 at 4:59 AM
This isn't the biggest problem w/ the idea, but if they take it seriously it seems to violate 28 USC 516, which provides that, "except as otherwise authorized by law," all litigation in which the US is a party "is reserved to" officers acting "under the direction of the Attorney General."
Of course, it's also true that Trump v. US immunity is no bar to impeachment, for which official acts are the bread-and-butter and there is, if anything, debate about whether *unofficial* acts are impeachable.
January 29, 2026 at 4:46 AM
Of course, it's also true that Trump v. US immunity is no bar to impeachment, for which official acts are the bread-and-butter and there is, if anything, debate about whether *unofficial* acts are impeachable.