Excited to share two projects, forthcoming in the Minnesota Law Review and the Notre Dame Law Review, about federal courts’ increasing reliance on “external” factfinding of epistemically dubious provenance. (1/4)
CONGRESS’S POWER OF INQUIRY IN IMPEACHMENT Jonathan David Shaub The nature and scope of Congress’s constitutional power of inquiry in impeachment has rarely been discussed and never been satisfactorily analyzed. Impeachment is both increasingly salient and singularly important, particularly after Trump v. United States. Indeed, impeachment may now be the sole remaining mechanism for investigating presidential misconduct, but recent executive branch doctrines—established during the first Trump administration and largely affirmed during the Biden administration—severely limit congressional authority to investigative for purposes of impeachment. This paper proposes a constitutional framework that balances the exceptional power the two Houses of Congress wield in the exercise of their respective impeachment authorities with the need to retain the solemnity of impeachment investigation and protect its role in holding presidents and other executive branch officials accountable. This framework recognizes that the invocation of impeachment authority is a distinct, nondelegable authority that functions as a judicial power separate from legislative. Once this power has been invoked, generalized executive privilege doctrines used in oversight, and related prophylactic protections for that privilege, are inapplicable. Instead, distinct, specific objections to disclosure should be adjudicated by the two Houses respectively pursuant to established procedures, with the presumption that the congressional bodies need access to all pertinent information, even if the information needs to be protected from public disclosure. Moreover, each House should establish procedural protections unique to impeachment, including due process protections for accused officials and witnesses. Finally, a comprehensive framework that empowers the House and Senate to exercise fully their respective authorities to investigate for purposes of impeachment inquiries and trials necessitates a mechanis…
v/excited to share that my article, Congress's Power of Inquiry in Impeachment, is forthcoming in the Virgina Law Review. Abstract below. Full draft up soon (SSRN... throws hands in the air)... happy to share the draft, though, and would love comments ...
If you feel the need to write articles using AI, please find another job. Your students and colleagues deserve a lot better.
Book Announcement!!!
Sidewalk Nation: The Life and Law of America’s Most Overlooked Resource is available for preorder and out June 2 with @harvardpress.bsky.social!
a.co/d/0d1DwIVc
I crave this form of liberty most of all.
I am confident that, in performing this limited historical analysis, the Court will not analogize to the holdings of prior cases. Nor will it derive from those cases principles that seemingly encompass the present SDP claim.
Yesterday I filed an #AmicusCuriae brief at #SCOTUS in the birthright citizenship case. It presents stories of 3 families of Japanese ancestry--w/o legal allegiance to the USA--to show citizenship derives from birth on US soil, not parental loyalties.
#lawsky #skystorians
tinyurl.com/3hy76638
Ping-pong paddles were used. Points were earned, and scores were tabulated. Specific details are not available at this time!
Didn't McReynolds say "the Constitution is gone!" when the Gold Clause Cases were handed down?
I don't make the rules!
Thrilled that my article, Forgotten Framers: Black Conventions and the Second Founding, is forthcoming in the Stan. L. Rev. @stanlrev.bsky.social. It discusses Black Conventions held during Reconstruction and how these conventions are critical to a proper understanding of the 13, 14, & 15th Amdts.
Do we, though?
NEW PAPER: I have posted a draft of my latest paper on "The Exclusive Powers Presidency" on SSRN. Abstract below!
papers.ssrn.com/sol3/papers....
The Article argues that the Roberts Court has recently transformed separation of powers law by centering the President's "exclusive" powers. 1/6
So practical consequences are extremely important in Indian law, Federal Reserve law, and tariff law. Where else?
Was bothered by Take Care implications of not enforcing the TikTok ban until I saw this
My book is available for pre-order! Get your copy here: www.cambridge.org/us/universit...
As constitutional interpretation becomes rooted ever more deeply into the past the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter. These domains appear to tread into empty constitutional landscapes and newly discovered territory. Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century. But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development. Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but which past—and through what historical method. This Foreword argues that our present constitutional impasse stems, at least in part, not solely from excessive attention to the past but from fixation on a particular kind of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism. By nationalism, I do not mean to invoke familiar federalism debates. Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders. Rather, in identifying mainstream constitutional theory as operating within a nationalist frame, I seek to draw attention t…
New Foreword up on SSRN, previewing new projects on the history of constitutional history and what it can teach about legal frameworks at the heart of our "constitutional crisis"-federal Indian law, territorial law, expansion, immigration, and executive power. papers.ssrn.com/sol3/papers....
Glad you got to meet your soulmate! (the Dickson Street Bookshop)
Thrilled that my article Private Governance and Originalism will be published in the Stanford Law Review @stanlrev.bsky.social! The article explains why private groups including schools, corps & other orgs create unique challenges (and opportunities) under originalist "history & tradition" tests
Can I also vote to grant you tenure? (congrats!!)
Eagerly awaiting the response, "Bruen's Tenth Amendment Problem's Problem."
Great piece! As a prelude to the main argument, it does a nice job of rebutting sympathetic reconstructions of Bruen. Give it a read!
My latest, "Free Exercise and the Redistribution of Liberty," is now posted (and forthcoming in @yalelawjournal.bsky.social). It argues that free exercise doctrine uses selective market logic to redistribute both public resources and liberty itself.
Comments welcome: papers.ssrn.com/abstract=618...
Had a ton of fun on this panel with @audrelawdamercy.bsky.social, Thomas Saenz, and Reggie Oh!
A student criticizes my attempt to pretext-proof my tenure file
Usually don’t screenshot student evals, but making an exception here
See you there!
I made a point of assigning Muller this semester!
More article placements for everyone else! news.northwestern.edu/stories/2026...
