Sam J. Merchant
@sammerchant.bsky.social
Law Prof: Con Law, Crim Pro, Sentencing, Habeas at Minnesota Law
Current Court, essentially: “This President’s power here exists in penumbras in Article II.”
(Credit @jedshug.bsky.social )
(Credit @jedshug.bsky.social )
For this week's bonus issue of "One First," I wrote about Monday's #SCOTUS argument in Slaughter, Justice Barrett's concern about having to identify the specific constitutional provision from which the unitary executive theory derives, and the alarming possibility that con law is ... complicated:
December 11, 2025 at 2:40 PM
This is likely true.
December 10, 2025 at 5:41 AM
This is likely true.
And one side is being allowed to say “that’s not before you today” and avoid hard questions. The other one is (literally) being forced to grapple with “the logic of your argument” and where it leads.
December 8, 2025 at 5:15 PM
And one side is being allowed to say “that’s not before you today” and avoid hard questions. The other one is (literally) being forced to grapple with “the logic of your argument” and where it leads.
December 8, 2025 at 5:00 PM
And one side is being allowed to say “that’s not before you today” and avoid hard questions. The other one is (literally) being forced to grapple with “the logic of your argument” and where it leads.
This was my thought. The conservatives will always win on the hypertechnical arguments or distinguishing precedent or agencies. The only chance at winning Roberts or Barrett (or the public) is to persuasively convey the catastrophic consequences. Katyal is good at that. Agarwal isn’t.
December 8, 2025 at 4:45 PM
This was my thought. The conservatives will always win on the hypertechnical arguments or distinguishing precedent or agencies. The only chance at winning Roberts or Barrett (or the public) is to persuasively convey the catastrophic consequences. Katyal is good at that. Agarwal isn’t.
December 8, 2025 at 4:43 PM
This was my thought. The conservatives will always win on the hypertechnical arguments or distinguishing precedent or agencies. The only chance at winning Roberts or Barrett (or the public) is to persuasively convey the catastrophic consequences. Katyal is good at that. Agarwal isn’t.
The SG’s argument also (very oddly) assumes that the President is democratically accountable but somehow Congress isn’t? Jackson got close but, if the people don’t like these agencies, they’ll vote Congress out the same way they’ll vote the Pres out for not “taking care.”
December 8, 2025 at 3:38 PM
The SG’s argument also (very oddly) assumes that the President is democratically accountable but somehow Congress isn’t? Jackson got close but, if the people don’t like these agencies, they’ll vote Congress out the same way they’ll vote the Pres out for not “taking care.”
It’s hard to (plausibly) catastrophize when the precedent has been around for 90 years and we’re still around. Like doomsday theorists: “NEXT year’s the year!”
December 8, 2025 at 3:16 PM
It’s hard to (plausibly) catastrophize when the precedent has been around for 90 years and we’re still around. Like doomsday theorists: “NEXT year’s the year!”
🎯 "The Non-Delegation Doctrine's Price-Reducing Function" by Michael Smith.
November 6, 2025 at 12:45 AM
🎯 "The Non-Delegation Doctrine's Price-Reducing Function" by Michael Smith.
Reposted by Sam J. Merchant
Katyal just referred to "French Revolutioning" all statutes.
November 5, 2025 at 4:55 PM
Katyal just referred to "French Revolutioning" all statutes.
Alito VERY QUICKLY changed the subject. “That’s not my question.” (It was.)
November 5, 2025 at 4:51 PM
Alito VERY QUICKLY changed the subject. “That’s not my question.” (It was.)
Roberts says tariffs are taxes. (Trump will be furious.) Issue is foreign vs domestic taxes.
November 5, 2025 at 4:28 PM
Roberts says tariffs are taxes. (Trump will be furious.) Issue is foreign vs domestic taxes.
They see easier pathways to strike them down, pathways that avoid political-question arguments.
November 5, 2025 at 4:19 PM
They see easier pathways to strike them down, pathways that avoid political-question arguments.
Gorsuch waited for seriatim so he would be uninterrupted in his calculated takedown. Interesting, he’s serious.
November 5, 2025 at 4:02 PM
Gorsuch waited for seriatim so he would be uninterrupted in his calculated takedown. Interesting, he’s serious.
This is the major point. Of course not. I’m sure other justices will pick up on this, probably KBJ.
November 5, 2025 at 3:16 PM
This is the major point. Of course not. I’m sure other justices will pick up on this, probably KBJ.
The scary thing is, imagine a real crisis.
October 21, 2025 at 5:15 AM
The scary thing is, imagine a real crisis.
He’s right.
(Stuff you can say when you are term limited…)
(Stuff you can say when you are term limited…)
October 10, 2025 at 1:45 AM
He’s right.
(Stuff you can say when you are term limited…)
(Stuff you can say when you are term limited…)