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Richard Primus
@richardprimus.bsky.social
6.9K followers 73 following 530 posts
Professor, University of Michigan Law School. Senior Editorial Adviser, Journal of American Constitutional History. I study the constitutional past and try to do my part for the rule of law in the present.
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Richard Primus @richardprimus.bsky.social · Mar 25
So after Paul Weiss makes a deal, they come for Jenner.

No sane person thinks it will stop there.

Three choices: fight now, fight later from a weaker position, or give up and let them do whatever they want. No other options.
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Richard Primus @richardprimus.bsky.social · 1d
That doesn’t affect the outcome. But it’s still good to get the analysis right.

(18/18) (end)
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Richard Primus @richardprimus.bsky.social · 1d
If Congress under the Militia Clause has the power to authorize the president to federal state Nat’l Guards—which nobody here disputes—then the relevant power is vested in the United States, and the 10th Amendment isn’t in point.

(17/18)
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Richard Primus @richardprimus.bsky.social · 1d
The district court may be right that DJT’s action is unconstitutional because it’s ultra vires. But that’s a Youngstown reason, not a 10th Amendment reason.

(16/18)
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Richard Primus @richardprimus.bsky.social · 1d
The court ruled that the federalization of the OR Guard violated the 10th Amendment, b/c DJT acted without any direct constitutional authority and also beyond the scope of any congressional delegation.

(15/18)
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Richard Primus @richardprimus.bsky.social · 1d
Now, for the technically minded: for completeness, I’ll mention that I think the court’s reasoning on its second rationale—the constitutional part—is muddled, though it gets to the right answer.

(14/18)
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Richard Primus @richardprimus.bsky.social · 1d
We need more courts to be willing to do this simple and correct thing. To say that he's not acting in good faith and that what he's saying isn't so. (And the same for the executive branch personnel who speak for him.)

(13/18)
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Richard Primus @richardprimus.bsky.social · 1d
(BTW: The judge in question isn’t some left-wing resistance lawyer. She’s a Trump appointee. And back in the 90s, she worked for Independent Counsel Ken Starr.)

(12/18)
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Richard Primus @richardprimus.bsky.social · 1d
Which is true. And everyone willing to know it knows it. But courts—and especially the Supreme Court—have labored mightily to avoid saying it. All the way back to the travel ban cases in Trump 1.

This judge just told it straight.

(11/18)
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Richard Primus @richardprimus.bsky.social · 1d
…that even great deference is not the same thing as ignoring the facts. And the facts are pretty clear: the President is just making things up. Quite directly, she wrote that DJT is not acting in good faith.

(10/18)
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Richard Primus @richardprimus.bsky.social · 1d
She wrote that the President is entitled to a lot of deference when he says that the regular federal officials in Portland are unable to enforce federal law there. Which is right. But she also wrote…

(9/18)
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Richard Primus @richardprimus.bsky.social · 1d
…the thing is, none of that is true. There’s order and normal life in Portland. And the judge was willing to say so. That is, she was willing to say, directly, that the President of the United States is saying things that just aren’t true.

(8/18)
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Richard Primus @richardprimus.bsky.social · 1d
As the court noted, DJT has said over and over that those things *are* happening. He says publicly that Portland is a battlefield, that violent protest and chaos reign, etc. If that were true, he’d be within 12406. But…

(7/18)
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Richard Primus @richardprimus.bsky.social · 1d
The mobilization isn’t covered by 12406, the court said, because none of those three things is happening.

Which brings us to the really important part…

(6/18)
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Richard Primus @richardprimus.bsky.social · 1d
The court held the mobilization to be beyond the authorization in 10 USC 12406, which lets the president federalize the Nat’l Guard in case of (1) invasion, (2) rebellion, (3) the inability of regular forces to enforce federal law. (5/18)
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Richard Primus @richardprimus.bsky.social · 1d
The most important thing in the opinion is in the statutory analysis. (4/18)
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Richard Primus @richardprimus.bsky.social · 1d
The court held DJT’s federalization of the OR Guard invalid on two grounds, one statutory and one constitutional. I think both are right in substance, though the second one is mislabeled.

(3/18)
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Richard Primus @richardprimus.bsky.social · 1d
Decision here:

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://storage.courtlistener.com/recap/gov.uscourts.ord.189270/gov.uscourts.ord.189270.56.0_1.pdf?utm_source=substack&utm_medium=email

Thoughts in the thread below.
(2/18)
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Richard Primus @richardprimus.bsky.social · 1d
Worth reading: Judge Immergut’s decision in Oregon v. Trump, granting a TRO enjoining DJT from federalizing the Oregon Nat’l Guard and deploying them to Portland. I link it at the next post in this thread, followed by some thoughts. (1/18)
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Richard Primus @richardprimus.bsky.social · 2d
One of the things that symbolically differentiates monarchies from republics is that republics don't put images of living officeholders on their currency.

(Yes, I know about the Calvin Coolidge coin. It was once in 250 years, and it was wrong.)
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Richard Primus @richardprimus.bsky.social · 2d
This is completely unacceptable.

Yes, I know we’re long past the point of being shocked. I’m not even surprised. But for a president to give a partisan harangue to the military is still unacceptable.
atrupar.com
Aaron Rupar @atrupar.com · 2d
Trump to the Navy: "We have to take care of this little gnat that's on our shoulder called the Democrats."
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Richard Primus @richardprimus.bsky.social · 2d
And we’re up!

#HagSameah
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Richard Primus @richardprimus.bsky.social · 3d
Do I think it’s significant that a portmanteau of Michigan’s running backs this year is “Justice Marshall”? No, I do not.

But do I mind? Also no.
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Richard Primus @richardprimus.bsky.social · 3d
Actually, there are no exceptions. :-)
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Richard Primus @richardprimus.bsky.social · 3d
Now in Michigan Stadium, ready to spend
The afternoon with 110,000 of my closest friends.

Not planning to boo the Badgers when they come out of the tunnel. They traveled so we could have fun; we can practice some sportsmanship.

#GoBlue
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Richard Primus @richardprimus.bsky.social · 3d
I often read—this morning I read—the statement that in constitutional interpretation, one important question is “*How much* does history matter?”

But a prior question is more important: “*How* does history matter?”
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