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Reposted by Nick Bednar

Lawfare @lawfaremedia.org · 12h

On Lawfare's litigation tracker you can find the dockets for 200 cases challenging actions from the Trump administration, including Illinois's suit challenging the deployment of the National Guard in Chicago, a U.S. citizen suing ICE over an alleged wrongful arrest, and many more.

Litigation Tracker

Find legal challenges to executive orders and actions from the Trump administration.

www.lawfaremedia.org

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Reposted by Nick Bednar

Loren DeJonge Schulman @lorenraeds.bsky.social · 18h

Former OMB associate director on personnel here: This is blatantly false and inexplicably undermines Congress's authority. Congress made extremely clear in 2019 that furloughed feds are to be paid, full stop, period. There is no question, except why the Speaker would make such a statement.

Aaron Rupar @atrupar.com · 18h

Johnson: "It's true that in previous shutdowns, many or most furloughed employees have been paid for the time they were furloughed, but there is new legal analysis - I don't know the details, I just saw a headline - but there are some legal analysts saying that might not be appropriate or necessary"

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Nick Bednar @nicholasbednar.bsky.social · 14h

I don't know what I expected.

lemonlimerence.bsky.social @lemonlimerence.bsky.social · 14h

The Washington post has the memo wapo.st/47dbJEe

Furloughed workers not guaranteed back pay after shutdown, OMB claims

Federal workers may not be entitled to back pay after the government shutdown ends, the Trump administration’s budget office wrote in a new draft memo obtained by The Washington Post, ratcheting up te...

wapo.st

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Nick Bednar @nicholasbednar.bsky.social · 16h

If someone happens to see or get ahold of a copy of this memo, please send it to me. I am watching media reports for the actual text of the memo, but I have not seen it.

Nick Bednar @nicholasbednar.bsky.social · 20h

Yes, they are. "Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations..." 31 USC 1341. It's not even close.

www.axios.com/2025/10/07/t...

Scoop: White House memo says furloughed federal workers aren't entitled to backpay

A move to deny backpay to up to 750,000 furloughed workers would dramatically escalate Trump's pressure on Democrats to end the shutdown.

www.axios.com

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Nick Bednar @nicholasbednar.bsky.social · 18h

Yes. It's the language from the Government Employees Fair Treatment Act.

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Nick Bednar @nicholasbednar.bsky.social · 18h

If the RIFs are both lawful and procedurally sound (no guarantees with either of those), OPM's guidance suggests they would receive back pay for the duration of the shutdown in which the employee was still employed.

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Nick Bednar @nicholasbednar.bsky.social · 20h

Thankfully, it does.

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Nick Bednar @nicholasbednar.bsky.social · 20h

Entitled to pay*

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Nick Bednar @nicholasbednar.bsky.social · 20h

I haven't seen the actual memo but I cannot come up with any plausible interpretation that would support the White House's interpretation. The early shutdown guidance even acknowledged furloughed employees were entitled to post. It's all a bluff seeking more leverage in negotiations.

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Nick Bednar @nicholasbednar.bsky.social · 20h

Yes, they are. "Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations..." 31 USC 1341. It's not even close.

www.axios.com/2025/10/07/t...

Scoop: White House memo says furloughed federal workers aren't entitled to backpay

A move to deny backpay to up to 750,000 furloughed workers would dramatically escalate Trump's pressure on Democrats to end the shutdown.

www.axios.com

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Reposted by Nick Bednar

Guha Krishnamurthi @ggkrishnamoomoo.bsky.social · 1d

Earlier this summer, I presented Textualism Step Zero at the Harvard-Yale-Stanford Junior Faculty Forum

I begin with a confession of my failures and say something about a failure in textualism-hey, and this is different for me-even a way to fix that for textualism!

papers.ssrn.com/sol3/papers....

abstract of my paper Textualism Step Zero

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Nick Bednar @nicholasbednar.bsky.social · 1d

Great and timely article.

Dan Deacon @dtdeacon.bsky.social · 1d

Over at the Notice and Comment blog, today's Ad Law Reading Room entry is "Remedies in the Officer Removal Cases," by Sam Bray. Check it out! www.yalejreg.com/nc/ad-law-re...

Ad Law Reading Room: "Remedies in the Officer Removal Cases," by Samuel Bray - Yale Journal on Regulation

Today’s Ad Law Reading Room entry is “Remedies in the Officer Removal Cases,” by Samuel L. Bray. Here is the abstract: When a federal officer challenges her removal by the president, what forms of int...

www.yalejreg.com

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Rachel Porter @rachelporter.bsky.social · 1d

🚨 Call for PostDoc or Visiting PhD Student 🚨

apply.interfolio.com/175219

We're seeking an American Politics scholar of leg. institutions or representation, under the direction of Jim Curry, Jeff Harden, and Rachel Porter (me!), affiliated with our Representation and Politics in Legislatures Lab

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Nick Bednar @nicholasbednar.bsky.social · 1d

Details from last night's hearing on the National Guard in Oregon. I am very grateful for reporters like @annabower.bsky.social who transcribe these proceedings for the public.

Anna Bower @annabower.bsky.social · 2d

Ok, here we go.

The case is called and Judge Immergut explains the background. She says there were technical difficulties, which caused the delay.

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Mary Dudziak @marydudziak.bsky.social · 4d

What a great opportunity! Seminar Native Peoples, American Colonialism and the Constitution with @maggieblackhawk.bsky.social & Ned Blackhawk for grad students & "junior" faculty. In person & virtual. Apply by 10/10.
www.nyhistory.org/education/in...

The New York Historical’s Bonnie and Richard Reiss Graduate Institute for Constitutional History is accepting applications for its fall 2025 seminar for advanced graduate students and junior faculty.
seminar | fall 2025

Native Peoples, American Colonialism, and the US Constitution

Fridays, November 7 and 21, December 5 and 12, 2025 | 11 am–2 pm ET
Instructors: Maggie Blackhawk, Ned Blackhawk

As the United States marks the 250th anniversary of the Declaration of Independence, this seminar invites a critical examination of a central paradox in American constitutional history: how can a nation celebrate a founding document and constitutional tradition built, in part, on the dispossession of Indigenous homelands? Indian affairs and westward expansion were foundational to the creation and evolution of the US Constitution, yet Native history remains marginalized within the fields of constitutional history and mainstream constitutional scholarship. This seminar explores emerging historical and legal literature that re-centers Native peoples and American colonialism in the narrative of US constitutional development.

Presented in person at The New York Historical and via Zoom

Apply by October 10, 2025

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Reposted by Nick Bednar

Tom Nichols @radiofreetom.bsky.social · 2d

I think this is right:
"We've slid into some form of authoritarianism," says Steven Levitsky, a professor of government at Harvard. "It is relatively mild compared to some others. It is certainly reversible, but we are no longer living in a liberal democracy."
www.npr.org/2025/04/22/n...

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Nick Bednar @nicholasbednar.bsky.social · 3d

It's quite convenient that RIF planning is (allegedly) an exempted activity but MSPB has ceased all operations and has only one FTE working.

www.mspb.gov/MSPB_Lapse_P...

www.mspb.gov

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Reposted by Nick Bednar

Chris Geidner @chrisgeidner.bsky.social · 4d

BREAKING: The First Circuit rejects Trump's executive order seeking to end birthright citizenship. In the New Jersey-led multistate case, the appeals court, in a 100-page ruling, keeps the nationwide scope of the injunction blocking the EO in place. storage.courtlistener.com/recap/gov.us...

The Government now asks us to reverse the preliminary
injunctions in these cases. We see no reason to do so. The
Government is right that the Framers of the Citizenship Clause
sought to remove the stain of Dred Scott v. Sandford, 60 U.S. 119
How.) 393 (1857), which shamefully denied United States
citizenship to "descendants of Africans who were imported into
this country, and sold as slaves," even when the descendants were born here. Id. at 403. But the Framers chose to accomplish that
just purpose in broad terms, as both the supreme Court in United
States . Wong Kim Ark, 169 U.S. 649 (1898), and Congress in
passing § 1401(a) have recognized. The Government is therefore
wrong to argue that the plaintiffs are not likely to succeed in
showing that the children that the EO covers are citizens of this
country at birth, just as the Government is wrong to argue that
various limits on our remedial power independently require us to
reverse the preliminary injunctions.?

The analysis that follows is necessarily lengthy, as we
must address the parties' numerous arguments in each of the cases
involved. But the length of our analysis should not be mistaken
for a sign that the fundamental question that these cases raise
about the scope of birthright citizenship is a difficult one.
•It
is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the
Executive Branch now makes to deny Americans their birthright.

Thus, it is no surprise that, when presented with even
more uncontroverted evidence by the State-Plaintiffs about the
need for an injunction of the current breadth, the District Court
again found that a narrower injunction would leave unremedied
"administrative and financial harms." We therefore decline to
conclude that the District Court has abused its discretion in
fashioning relief. See Philip Morris, Inc. v. Harshbarger, 159
F. 3d 670, 680 (1st Cir. 1998) (explaining that "[als a general
rule, a disappointed litigant cannot surface an objection to a preliminary injunction for the first time in an appellate venue"
because doing so deprives the district court of the opportunity to
"consider [the objection] and correct the injunction if necessary,
without the need for appeal" (quoting Zenon, 711 F.2d at 478)).

The "lessons of history" thus give us every reason to be
wary of now blessing this most recent effort to break with our
established tradition of recognizing birthright citizenship and to
make citizenship depend on the actions of one's parents rather
than -- in all but the rarest of circumstances -- the simple fact
of being born in the United States. United States v. Di Re, 332
U.S. 581, 595 (1948). Nor does the text of the Fourteenth
Amendment, which countermanded our most infamous attempt to break
with that tradition, permit us to bless this effort, any more than
does the Supreme Court's interpretation of that amendment in Wong
Kim Ark, the many related precedents that have followed it, or
Congress's 1952 statute writing that amendment's words in the U.S.
Code.
The District Court's order for entry of the preliminary
injunctions is affirmed in part, vacated in part, and remanded for
further consideration consistent with this decision.

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Anthony Michael Kreis @anthonymkreis.bsky.social · 4d

Metro Atlanta folks— please consider coming to our Law Review’s annual Legislative Forum. It is an excellent event covering crucial emerging issues in Georgia law and policy!

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Noah Rosenblum @narosenblum.bsky.social · 5d

Genuine question for my center/right friends: does the current political moment feel like (1) a simple correction to Democratic overreach, and so nothing to worry about; (2) business as usual in the new world of US politics; (3) a sign that we need structural reforms; (4) something else?

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Reposted by Nick Bednar

Dan Walters @profdanwalters.bsky.social · 4d

Our Center on the Structural Constitution, led by @crockeroncourts.bsky.social and Neil Siegel, has organized an amazing symposium with the Harvard Law Review on the politics and law of judicial review. And the best news is that you can attend online!

harvardlawreview.org/judicial-rev...

Judicial Review in Jeopardy? Symposium - Harvard Law Review

The Harvard Law Review is proud to host, in collaboration with the Center on the Structural Constitution at Texas A&M University School of Law,...

harvardlawreview.org

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Nick Bednar @nicholasbednar.bsky.social · 4d

The underlying theme: This is dumb and Congress can fix it.

Lawfare @lawfaremedia.org · 4d

On Lawfare Daily, @mollyereynolds.bsky.social spoke to @nicholasbednar.bsky.social and Sam Berger about how the Trump administration is using this government shutdown to pursue RIFs and how to think about the shutdown in the broader context of the Trump administration’s exercise of executive power.

Lawfare Daily: The Law of the Shutdown

YouTube video by Lawfare

youtu.be

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Reposted by Nick Bednar

Lawfare @lawfaremedia.org · 4d

On Lawfare Daily, @mollyereynolds.bsky.social spoke to @nicholasbednar.bsky.social and Sam Berger about how the Trump administration is using this government shutdown to pursue RIFs and how to think about the shutdown in the broader context of the Trump administration’s exercise of executive power.

Lawfare Daily: The Law of the Shutdown

YouTube video by Lawfare

youtu.be

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Joyce White Vance @joycewhitevance.bsky.social · 5d

As if irony isn’t already dead, the Hatch Act violation on the DOJ website, which blames Democrats for the shutdown, appears on the page advising DOJ employees they are subject to the Hatch Act. joycevance.substack.com/p/a-note-abo...

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Max Kennerly @maxkennerly.bsky.social · 5d

This is illegal, plain and simple, with penalties including removal from federal service, debarment from federal employment for five years, and a fine of $1000. 5 U.S.C. § 7326.

A country which valued the rule of law would enforce its laws.

Marisa Kabas @marisakabas.bsky.social · 5d

NEW—US Department of Education sent out standard Out of Office language to employees on Wednesday in light of shutdown. Later yesterday, workers tell me they found someone had updated their auto-responses without consent to a new one blaming Democrats.

Version of original on left, updated on right:

Thank you for your email. There is a temporary shutdown of the U.S. government due to a lapse in appropriations. I will respond to your message as soon as possible after the temporary shutdown ends. Please visit ED.gov for the latest information on the
Department's operational status.
Thank you.

Thank you for contacting me. On September 19, 2025, the House of Representatives passed H.R. 5371, a clean continuing resolution. Unfortunately, Democrat Senators are blocking passage of H.R. 5371 in the Senate which has led to a lapse in appropriations. Due to the lapse in appropriations I am currently in furlough status. I will respond to emails once government functions resume.

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