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Marty Lederman @martylederman.bsky.social · 2h

... or even that he personally called the National Guard into Federal service "in such numbers as he [i.e., Trump] considers necessary to ... execute those laws."

How can a court defer to a presidential judgment that a statutory predicate was satisfied w/o any evidence that he ever made it? [2]

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Marty Lederman @martylederman.bsky.social · 2h

The oddest thing about the Portland case to be argued in the 9th Circuit tomorrow is that DOJ doesn't cite any evidence that Trump ever determined that he was "unable with the regular forces to execute the laws," 10 U.S.C. 12406(3) ... [1]

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Marty Lederman @martylederman.bsky.social · 1d

"Harvard may be partly to blame for encouraging student absences, with a policy that allows students to enroll in two classes that meet at the same time."

Partly?

www.nytimes.com/2025/10/06/u...

Harvard Students Skip Class and Still Get High Grades, Faculty Say

www.nytimes.com

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Marty Lederman @martylederman.bsky.social · 2d

I tend to think that what ICE is doing is more significant than whether national guard forces are deployed to Portland but, FWIW, it is noteworhthy that Judge Immergut found that Trump lacked even a "colorable basis" for his findings, and that his statements weren't "conceived in good faith."

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Marty Lederman @martylederman.bsky.social · 4d

Lucky Town has 1000 times more life than this does.

Marty Lederman @martylederman.bsky.social · 4d

On why Trump's determination that the U.S. is engaged in an armed conflict with drug cartels is (i) wrong; and (ii) insufficient, in any event, to make legal the strikes against vessels in the Caribbean.

www.justsecurity.org/121844/trump...

Legal Flaws in the Trump Administration’s Notice to Congress on “Armed Conflict” with Drug Cartels

Top legal expert analyzes the Trump administration's notice to Congress of an "armed conflict" with drug cartels.

www.justsecurity.org

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Marty Lederman @martylederman.bsky.social · 5d

Will any school agree to this?

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Marty Lederman @martylederman.bsky.social · 5d

As I read this "compact," it provides that if School X *expressly* "agrees" to do everything listed--and complies to DOJ's satisfaction--then the Trump Administration *implicitly* agrees that it won't *unlawfully* withhold funding or deny grants.

www.washingtonexaminer.com/wp-content/u...

www.washingtonexaminer.com

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Marty Lederman @martylederman.bsky.social · 6d

The constitutional question almost certainly won't be briefed or decided in this case (though of course it's looming overhead).

@normative.bsky.social

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Marty Lederman @martylederman.bsky.social · 7d

Typical DOJ fare:

"The [DOJ attorney] summed it up ... by quoting Danish philosopher Søren Kierkegaard, for the proposition that 'anxiety is the dizziness of freedom,' dismissing the plaintiffs’ claims of collective chill as somehow wholly self-imposed."

storage.courtlistener.com/recap/gov.us...

storage.courtlistener.com

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Marty Lederman @martylederman.bsky.social · 8d

Fourth and (for now) final part in my series about the birthright citizenship litigation, this one focusing on the statutory argument that might be the basis of the SCOTUS' ultimate decision when it rules on the petitions the SG filed on Friday.

www.justsecurity.org/121397/birth...

Taking Stock of the Birthright Citizenship Cases, Part IV: DOJ’s Ineffective Responses to Plaintiffs’ Statutory Argument

Analysis of birthright citizenship statutes - in contrast to the constitutional questions - now before the Supreme Court.

www.justsecurity.org

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Marty Lederman @martylederman.bsky.social · 10d

No vestiges of Roberts/Alito's "Congress has the upper hand on matters of foreign affairs" dissent in Zivotofsky detected, either. I can't imagine what's changed in the succeeding ten years.

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Marty Lederman @martylederman.bsky.social · 11d

... and that it was "manifest" that none of the Justices who decided the Slaughterhouse Cases "understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from [birthright citizenship]." 169 U.S. at 678-79. [3]

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Marty Lederman @martylederman.bsky.social · 11d

... in light of the fact that the SCOTUS, in Wong Kim Ark, specifically rejected that proposition after explaining that it was a dictum, that it "was unsupported by any argument, or by any reference to authorities," ... [2]

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Marty Lederman @martylederman.bsky.social · 11d

Very, um, *interesting* choice of the SG to lead with the Slaughterhouse Cases in his birthright citizenship cert. petition--in particular, w/the statement (which the SG italicizes!) that the Citizenship Clause excludes "citizens or subjects of foreign States born within the United States"-- ... [1]

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Marty Lederman @martylederman.bsky.social · 11d

That's the Impoundment Control *Act*, of course.

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Marty Lederman @martylederman.bsky.social · 11d

After Judges Henderson and Katsas invoked it without being prompted to do so in the court of appeals, they quickly thereafter amended their opinion to delete the argument after both sides agreed it was incorrect.

Yet now it's the basis for the SCOTUS' decision to grant emergency relief. sigh

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Marty Lederman @martylederman.bsky.social · 11d

After Judges Henderson and Katsas invoked it without being prompted to do so in the court of appeals, they quickly thereafter amended their opinion to delete the argument after both sides agreed it was incorrect.

Yet now it's the basis for the SCOTUS' decision to grant emergency relief.

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Marty Lederman @martylederman.bsky.social · 11d

Six Justices shockingly conclude that it's likely the Impoundment Control precludes an otherwise valid APA claim to require expenditure of obligated funds. This argument, which turns the ICA on its head, is so absurd that the Trump DOJ itself wisely disclaimed it a month ago. Utterly lawless.

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Marty Lederman @martylederman.bsky.social · 11d

Six Justices conclude it's likely the Impoundment Control precludes an otherwise valid APA claim to require expenditure of obligated funds. This argument, which turns the ICA on its head, is so absurd that the Trump DOJ itself wisely disclaimed it a month ago.

www.supremecourt.gov/opinions/24p...

www.supremecourt.gov

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Reposted by Marty Lederman

Marty Lederman @martylederman.bsky.social · 16d

On why there's no legal obstacle to the decision of the UK, Canada, Australia, France and Portugal to recognize a Palestinian state.

www.justsecurity.org/118655/react...

@justsecurity.org

Reactions to the British Debate About the Legality of Recognizing Palestinian Statehood

"At least as far as international law is concerned, the UK Government is free to make either choice."

www.justsecurity.org

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Marty Lederman @martylederman.bsky.social · 16d

Saw that. (A correction would have been nice, no?) But because no state action was at issue, "his own First Amendment rights were abridged" remains wrong. They should just pull all the Shirley quotations.

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Marty Lederman @martylederman.bsky.social · 16d

It's hard to imagine what @peterbakernyt.bsky.social and the @nytimes.com were thinking in publishing this assertion:

“We all especially know Biden used government to censor Trump, kicking him off many media platforms, a clear violation of the law,” Mr. Shirley said.

@peterbakernyt.bsky.social

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Marty Lederman @martylederman.bsky.social · 16d

On why there's no legal obstacle to the decision of the UK, Canada, Australia, France and Portugal to recognize a Palestinian state.

www.justsecurity.org/118655/react...

@justsecurity.org

Reactions to the British Debate About the Legality of Recognizing Palestinian Statehood

"At least as far as international law is concerned, the UK Government is free to make either choice."

www.justsecurity.org

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Marty Lederman @martylederman.bsky.social · 16d

An important piece.

David Cole @davidcole-gtown.bsky.social · 16d

On the cold-blooded execution of alleged drug smugglers.

www.nybooks.com/online/2025/...

Getting Away with Murder | David Cole

During his first presidential campaign Donald Trump famously claimed that he could “stand in the middle of Fifth Avenue and shoot somebody” and not lose

www.nybooks.com

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