Jed H. Shugerman
@jedshug.bsky.social
Prof Boston U. Law. JD/PhD History & dad jokes.
5th most-cited legal historian, 2019-23
Book: The People’s Courts. Next: A Faithful President: The Founders v. the Originalists
http://shugerblog.com
http://ssrn.com/author=625422
5th most-cited legal historian, 2019-23
Book: The People’s Courts. Next: A Faithful President: The Founders v. the Originalists
http://shugerblog.com
http://ssrn.com/author=625422
SCOTUS link to amicus brief (Trump v. Cook) here:
www.supremecourt.gov/DocketPDF/25...
www.supremecourt.gov/DocketPDF/25...
September 25, 2025 at 10:01 PM
SCOTUS link to amicus brief (Trump v. Cook) here:
www.supremecourt.gov/DocketPDF/25...
www.supremecourt.gov/DocketPDF/25...
5/ We also see the tradition of property-in-office in the First Congress's debates - the same debates that the unitary executive theorists claim to rely on.
Those debates contradict the unitary theory of removal, and they also endorse the kinds of legal protections & process that Lisa Cook claims
Those debates contradict the unitary theory of removal, and they also endorse the kinds of legal protections & process that Lisa Cook claims
September 16, 2025 at 3:46 AM
5/ We also see the tradition of property-in-office in the First Congress's debates - the same debates that the unitary executive theorists claim to rely on.
Those debates contradict the unitary theory of removal, and they also endorse the kinds of legal protections & process that Lisa Cook claims
Those debates contradict the unitary theory of removal, and they also endorse the kinds of legal protections & process that Lisa Cook claims
Very revolutionary France - it was a partial cause of the Revolution in the fiscal crisis of the 1780s!
And also very post-revolutionary America! See Marbury v. Madison.
Thanks for reading!
And also very post-revolutionary America! See Marbury v. Madison.
Thanks for reading!
September 16, 2025 at 3:40 AM
Very revolutionary France - it was a partial cause of the Revolution in the fiscal crisis of the 1780s!
And also very post-revolutionary America! See Marbury v. Madison.
Thanks for reading!
And also very post-revolutionary America! See Marbury v. Madison.
Thanks for reading!
4/ How do we know that this system of property-in-office continued through the Founding?
Have you heard of Marbury v. Madison?
CJ Marshall repeatedly described Marbury’s “vested” interest in his “irrevocable” nonremovable office - though it was a non–Article III office with a 5-year term:
Have you heard of Marbury v. Madison?
CJ Marshall repeatedly described Marbury’s “vested” interest in his “irrevocable” nonremovable office - though it was a non–Article III office with a 5-year term:
September 16, 2025 at 3:38 AM
4/ How do we know that this system of property-in-office continued through the Founding?
Have you heard of Marbury v. Madison?
CJ Marshall repeatedly described Marbury’s “vested” interest in his “irrevocable” nonremovable office - though it was a non–Article III office with a 5-year term:
Have you heard of Marbury v. Madison?
CJ Marshall repeatedly described Marbury’s “vested” interest in his “irrevocable” nonremovable office - though it was a non–Article III office with a 5-year term:
2/
I've published several critiques, and another is forthcoming. Here is a concise summary from an amicus brief we filed this spring:
papers.ssrn.com/sol3/papers....
I've published several critiques, and another is forthcoming. Here is a concise summary from an amicus brief we filed this spring:
papers.ssrn.com/sol3/papers....
September 8, 2025 at 12:14 AM
2/
I've published several critiques, and another is forthcoming. Here is a concise summary from an amicus brief we filed this spring:
papers.ssrn.com/sol3/papers....
I've published several critiques, and another is forthcoming. Here is a concise summary from an amicus brief we filed this spring:
papers.ssrn.com/sol3/papers....
They say prosecutors could get a grand jury to indict a ham sandwich...
but apparently not the guy who threw a ham sandwich.
At least Trump's hack prosecutors can't.
but apparently not the guy who threw a ham sandwich.
At least Trump's hack prosecutors can't.
August 27, 2025 at 2:21 PM
They say prosecutors could get a grand jury to indict a ham sandwich...
but apparently not the guy who threw a ham sandwich.
At least Trump's hack prosecutors can't.
but apparently not the guy who threw a ham sandwich.
At least Trump's hack prosecutors can't.
11/ @wsj.com picked up my commentary on Trump's threats:
I called it “authoritarian fan fiction” that "flouted the Constitution."
“This is a fundamentally ignorant commentary on our form of government.”
www.wsj.com/politics/pol...
I called it “authoritarian fan fiction” that "flouted the Constitution."
“This is a fundamentally ignorant commentary on our form of government.”
www.wsj.com/politics/pol...
August 18, 2025 at 8:23 PM
11/ @wsj.com picked up my commentary on Trump's threats:
I called it “authoritarian fan fiction” that "flouted the Constitution."
“This is a fundamentally ignorant commentary on our form of government.”
www.wsj.com/politics/pol...
I called it “authoritarian fan fiction” that "flouted the Constitution."
“This is a fundamentally ignorant commentary on our form of government.”
www.wsj.com/politics/pol...
5/ This is the next level of the unitary executive theory:
Presidential Supremacy.
And Chief Justice Roberts has enabled this extreme executive power in Free Enterprise, Seila Law, DVD, & Wilcox.
www.nytimes.com/live/2025/08...
Presidential Supremacy.
And Chief Justice Roberts has enabled this extreme executive power in Free Enterprise, Seila Law, DVD, & Wilcox.
www.nytimes.com/live/2025/08...
August 18, 2025 at 4:01 PM
5/ This is the next level of the unitary executive theory:
Presidential Supremacy.
And Chief Justice Roberts has enabled this extreme executive power in Free Enterprise, Seila Law, DVD, & Wilcox.
www.nytimes.com/live/2025/08...
Presidential Supremacy.
And Chief Justice Roberts has enabled this extreme executive power in Free Enterprise, Seila Law, DVD, & Wilcox.
www.nytimes.com/live/2025/08...
Trump just posted that he would issue an executive order to ban mail-in voting.
Bottom line: He cannot.
Neither the Constitution nor any congressional statute gives the president such an executive power.
He followed up with this whopper, extreme even for Trump's past views of presidential power:
Bottom line: He cannot.
Neither the Constitution nor any congressional statute gives the president such an executive power.
He followed up with this whopper, extreme even for Trump's past views of presidential power:
August 18, 2025 at 3:28 PM
Trump just posted that he would issue an executive order to ban mail-in voting.
Bottom line: He cannot.
Neither the Constitution nor any congressional statute gives the president such an executive power.
He followed up with this whopper, extreme even for Trump's past views of presidential power:
Bottom line: He cannot.
Neither the Constitution nor any congressional statute gives the president such an executive power.
He followed up with this whopper, extreme even for Trump's past views of presidential power:
Update: steps 6 & 7 (out of infinity)
August 3, 2025 at 3:39 PM
Update: steps 6 & 7 (out of infinity)
3/ p. 52 continued.
"...and in both cases, the father is neither a citizen nor a lawful
permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria."
"...and in both cases, the father is neither a citizen nor a lawful
permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria."
June 27, 2025 at 6:10 PM
3/ p. 52 continued.
"...and in both cases, the father is neither a citizen nor a lawful
permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria."
"...and in both cases, the father is neither a citizen nor a lawful
permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria."
2/ p. 52:
SG SAUER: "There may be problems of commonality and typicality, for example.
For example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother
are illegally present..."
SG SAUER: "There may be problems of commonality and typicality, for example.
For example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother
are illegally present..."
June 27, 2025 at 6:09 PM
2/ p. 52:
SG SAUER: "There may be problems of commonality and typicality, for example.
For example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother
are illegally present..."
SG SAUER: "There may be problems of commonality and typicality, for example.
For example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother
are illegally present..."
On Birthright Citizenship and class actions:
The Roberts Court rules against national injunctions by saying Rule 23 class actions are the right process for the broad remedy.
But in oral argument, Trump's solicitor general previewed how they'd fight class action certification:
1/ Page 51:
The Roberts Court rules against national injunctions by saying Rule 23 class actions are the right process for the broad remedy.
But in oral argument, Trump's solicitor general previewed how they'd fight class action certification:
1/ Page 51:
June 27, 2025 at 6:06 PM
On Birthright Citizenship and class actions:
The Roberts Court rules against national injunctions by saying Rule 23 class actions are the right process for the broad remedy.
But in oral argument, Trump's solicitor general previewed how they'd fight class action certification:
1/ Page 51:
The Roberts Court rules against national injunctions by saying Rule 23 class actions are the right process for the broad remedy.
But in oral argument, Trump's solicitor general previewed how they'd fight class action certification:
1/ Page 51:
4/ There are a handful remedies that only appellate courts can grant, but those are particular appellate/legal issues.
"Setting aside" a statute does not strike me as that kind of remedy...
And Kavanaugh's metaphor "we can't hide in the tall grass" is kind of oblivious to this problem.
"Setting aside" a statute does not strike me as that kind of remedy...
And Kavanaugh's metaphor "we can't hide in the tall grass" is kind of oblivious to this problem.
June 27, 2025 at 3:59 PM
4/ There are a handful remedies that only appellate courts can grant, but those are particular appellate/legal issues.
"Setting aside" a statute does not strike me as that kind of remedy...
And Kavanaugh's metaphor "we can't hide in the tall grass" is kind of oblivious to this problem.
"Setting aside" a statute does not strike me as that kind of remedy...
And Kavanaugh's metaphor "we can't hide in the tall grass" is kind of oblivious to this problem.
I'm trying to make sense of the birthright decision on procedure.
Question #1 on Kavanaugh:
"This Court, not district cts or cts of appeals, will often still be the ultimate decisionmaker as to the interim legal status statutes & executive actions"
A new fact-based question just for SCOTUS?
Question #1 on Kavanaugh:
"This Court, not district cts or cts of appeals, will often still be the ultimate decisionmaker as to the interim legal status statutes & executive actions"
A new fact-based question just for SCOTUS?
June 27, 2025 at 3:46 PM
I'm trying to make sense of the birthright decision on procedure.
Question #1 on Kavanaugh:
"This Court, not district cts or cts of appeals, will often still be the ultimate decisionmaker as to the interim legal status statutes & executive actions"
A new fact-based question just for SCOTUS?
Question #1 on Kavanaugh:
"This Court, not district cts or cts of appeals, will often still be the ultimate decisionmaker as to the interim legal status statutes & executive actions"
A new fact-based question just for SCOTUS?
Hat-tip to a colleague who created this for Wilcox's anti-Humphrey's Executor, pro-Fed pseudo-originalist hypocrisy:
June 18, 2025 at 10:09 PM
Hat-tip to a colleague who created this for Wilcox's anti-Humphrey's Executor, pro-Fed pseudo-originalist hypocrisy:
Where's Kendrick's dis track for Justice Gorsuch?
June 18, 2025 at 10:04 PM
Where's Kendrick's dis track for Justice Gorsuch?
2/ The Appointments Clause requires such offices to be established by Congress:
"...all other Officers of the US, whose Appts are not herein otherwise provided for, & which shall be ESTABLISHED BY LAW: but the CONGRESS MAY BY LAW vest the Appointment of such inferior Officers, as they think proper"
"...all other Officers of the US, whose Appts are not herein otherwise provided for, & which shall be ESTABLISHED BY LAW: but the CONGRESS MAY BY LAW vest the Appointment of such inferior Officers, as they think proper"
June 18, 2025 at 2:56 PM
2/ The Appointments Clause requires such offices to be established by Congress:
"...all other Officers of the US, whose Appts are not herein otherwise provided for, & which shall be ESTABLISHED BY LAW: but the CONGRESS MAY BY LAW vest the Appointment of such inferior Officers, as they think proper"
"...all other Officers of the US, whose Appts are not herein otherwise provided for, & which shall be ESTABLISHED BY LAW: but the CONGRESS MAY BY LAW vest the Appointment of such inferior Officers, as they think proper"
Father’s Day Card for all Boston fathers.
And a Get Well Card, JT
☘️🍀
And a Get Well Card, JT
☘️🍀
June 15, 2025 at 5:58 PM
Father’s Day Card for all Boston fathers.
And a Get Well Card, JT
☘️🍀
And a Get Well Card, JT
☘️🍀
5/ Here's how these authors manufactured an ostensibly "originalist" argument for presidential power from a single source that cited royal practice... as an *anti-model*
That presidents were not like kings!
From my amicus in Wilcox:
papers.ssrn.com/sol3/papers....
That presidents were not like kings!
From my amicus in Wilcox:
papers.ssrn.com/sol3/papers....
June 10, 2025 at 12:28 PM
5/ Here's how these authors manufactured an ostensibly "originalist" argument for presidential power from a single source that cited royal practice... as an *anti-model*
That presidents were not like kings!
From my amicus in Wilcox:
papers.ssrn.com/sol3/papers....
That presidents were not like kings!
From my amicus in Wilcox:
papers.ssrn.com/sol3/papers....
4/ See "Executive Power of Removal," 136 Harv. L. Rev. 1790-91 (2023)
Again, literally not a single source from Founders endorsing the royal model for the presidency.
This is stunningly sloppy.
Again, literally not a single source from Founders endorsing the royal model for the presidency.
This is stunningly sloppy.
June 10, 2025 at 2:07 AM
4/ See "Executive Power of Removal," 136 Harv. L. Rev. 1790-91 (2023)
Again, literally not a single source from Founders endorsing the royal model for the presidency.
This is stunningly sloppy.
Again, literally not a single source from Founders endorsing the royal model for the presidency.
This is stunningly sloppy.