Worth a read. The purpose of the Citizenship Clause was *precisely* to prevent spun up theories based on hypothesized social contract, virtue, allegiance, community membership, etc., from being used to deny citizenship. The 14th Amendment means what it says.
I dug into the only US source cited by Randy Barnett & Ilan Wurman for their theory - against birthright citizenship - in @nytimes @nytopinion:
Edward Bates in 1862.
He doubly contradicted their argument:
"Birthright Citizenship: The Bates Backfire"
shugerblogcom.wordpress.com/2025/02/16/b...
BY EMAIL Re: United States v. Eric Adams, 24 Cr. 556 (DEH) Mr. Bove, I have received correspondence indicating that I refused your order to move to dismiss the indictment against Eric Adams without prejudice, subject to certain conditions, including the express possibility of reinstatement of the indictment. That is not exactly correct. The U.S. Attorney, Danielle R. Sassoon, never asked me to file such a motion, and I therefore never had an opportunity to refuse. But I am entirely in agreement with her decision not to do so, for the reasons stated in her February 12, 2025 letter to the Attorney General. In short, the first justification for the motion-that Damian Williams's role in the case somehow tainted a valid indictment supported by ample evidence, and pursued under four different U.S. attorneys is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives. There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know much i i red oril, in this ily. wing the perset arthro he Reside is ving to, give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me. Please consider this my resignation. It has been an honor to serve as a prosecutor in the Southern District of New York. Yours truly, Hagan Scotten Assistant United States Att…
AUSA Hagan Scotten, former clerk for John Roberts, really put some mustard on his resignation letter.
DOJ leadership has put all Public Integrity Section lawyers into a room with 1 hour to decide who will dismiss Adams indictment or else all will be fired. Sending them strength to stand by their oath, which is to support the Constitution, not the president’s political agenda. 🇺🇸
Ain't it the truth!
Thanks, David. I appreciate it.
The best thing I've seen on this tension: bclawreview.bc.edu/articles/3117. Personally, I think the unitary executive and MQD work as a tag-team that permits the Court to choose a preferred outcome: presidentialism in most cases, invalidation of "major questions" when the policy is disfavored.
(5/5) But, we argue, the Roberts Court’s version lacks guardrails and meaningful theoretical limits. We offer a critique of the MQD's application and a theory of administrative review that suggests a way forward.
Feedback on either/both pieces is appreciated and welcome!
(4/5) “Legality” shows that, surprisingly, the controversial MQD, recently used by the Roberts Court to invalidate “major” actions by agencies, has near-exact analogues in other global jurisdictions like Germany, Israel and the UK, playing a critical role in reining in executive branch overreach.
(3/5) For many reasons, I argue, we must push back on this project.
(2/5) “Lochnerism” argues that, like Lochner, the Roberts Court invokes self-made higher-law principles—this time, to build a new separation of powers: a dominant president, a constrained Congress, subordinated agencies, and a judiciary as the final umpire of what the separation of powers means.
Two new pieces from me on the Roberts Court, the presidency and the administrative state:
(1) Separation-of-Powers Lochnerism (papers.ssrn.com/sol3/papers....) and
(2) Taking Legality Seriously: What the Major Questions Doctrine Is - And Isn’t (with @BlochOfra)
(papers.ssrn.com/sol3/papers....)
Ofc the giant question is whether decisions like Loper Bright construing the APA and limiting agencies will affect SCOTUS’s reading of Article II to limit presidential power. Good news: Most statutes delegate their implementation to agencies. Bad news: civil service laws delegate directly to Prez.
Not to be missed — including a new article by the always brilliant @andreascoseriakatz.bsky.social!
The new issues of the Journal of American Constitutional History is now available:
What this means, in today’s terms: much of what we are used to thinking of as “inherent” or “natural” powers of the President were, in fact, put there by Congress. So efforts by today’s Supreme Court to wall off the President from control by Congress and statutes are ahistorical and dangerous. (3/3)
That included things like control over foreign policy, land use/conservationism, antitrust, tariffs, immigration, the military, and other facets of domestic policy. Consider it a period of interbranch cooperation, not Congress rolling over. (2/3)
Happy to see this in print!
jach.law.wisc.edu/regime-of-st...
Basically, I argue that the modern president is built earlier than we generally understand—Reconstruction/Gilded Age—and piece by piece, out of statutes where Congress delegated powers to the office. (1/3)
My co-author @narosenblum.bsky.social and I explain what's wrong with Myers and the Court's current thinking on the presidency (2/2):
columbialawreview.org/content/beco...
Here's some new work of mine. SCOTUS's current view of the president rests largely on one case, Myers v US (1926). But Myers is a false friend: it took a sharp detour from past separation-of-powers cases, misread history and precedent, and created nothing like the presidency we have today (1/2)
Hello Bluesky! I'm tentatively glad to be here.
