My thanks to @unlcollegeoflaw.bsky.social for supporting the Big Ten Early Career Law Scholars Workshop. And my thanks to all of the brilliant scholars from across the Big Ten community who spent the past two days sharing their time, work, and insights.

Today's "One First" explains why Stephen Miller is wrong that ICE officers have "federal immunity" from prosecution for all actions they take in their official duties, and that anyone attempting to prosecute them is committing a felony. Supremacy Clause immunity is a thing, but it's *not* absolute:

Increasingly polarized maneuvers like this were always going to be the result of Rucho shutting the federal courthouse doors to partisan gerrymandering claims. nebraskaexaminer.com/2025/09/08/w...

My essay for the @washulaw.bsky.social symposium, “History, Tradition, and the Franchise,” is now available for download. It highlights the modern Court’s reliance on history & tradition, and cautions against this approach in voting rights, equal protection claims wustllawreview.org/2025/09/02/h...

Come join us at @unlcollegeoflaw.bsky.social for an early career scholars workshop this October!! Open to legal educators at Big Ten institutions with less than ten years of teaching experience! Papers at all stages welcome, and there’s a $500 travel stipend available! law.unl.edu/big-ten-earl...

I think we should expect them to attempt to carry it out regardless of what the courts say about it and then be pleasantly surprised if they do not

FWIW, “Concentration of Powers” (forthcoming UC Davis Law Review) was a “top download” this week in SSRN’s “Bureaucratic Relations” eJournal. You can access the paper here: papers.ssrn.com/sol3/papers....

Johnson on Judicial Supremacy, Separation of Powers, and Administrative Law, buff.ly/Sbvv3rb - Brandon Johnson (University of Nebraska College of Law) has posted Concentration of Powers on SSRN.

This is 100% right - though I think it's deeper than that. People don't necessarily think it's a person who will step in but that the system just does things automatically to stop bad things. But it doesn't work that way. Laws, courts, the Constitution -- nothing happens automatically.

Is this what they’re using that new Grok contract for? This looks like some asked a racist AI to convert Nazi propaganda about the “Volksgemeinschaft” into pioneer propaganda. This is so stupid it would be laughable if it wasn’t at the same time, deeply terrifying and a harbinger of worse to come.

Reupping this for interested folks who may have missed it yesterday!

“Concentration of Powers” (forthcoming in @ucdavislaw.bsky.social Law Review), which analyzes judicial control of agencies, is now available on @ssrn.bsky.social. I’m working on substantive edits (especially to Part IV) so any and all comments are welcome! papers.ssrn.com/sol3/papers....

Fortunately we know from history that there’s nothing alarming or untoward about referring to your political enemies as vermin or insects.

We’re at the point where clergy is helping to hide people from a masked, militarized state police. Anyone who has even a passing familiarity with history, knows this state of affairs has never ended well.

If we as a country survive this descent into authoritarian madness, we will need a massively robust reckoning and reconciliation process to come to terms with the horrors our government will have inflicted on our most vulnerable. This is shameful, this is heartbreaking.

This was always going to be the end result of villainizing agencies, and placing political loyalists in leadership positions, who not only have no experience, but also actively disdain the agency they are supporting be leading. I fear this is going to become an all too familiar pattern.

“Don’t politicize tragedy,” is now a stock response. But there’s a difference between politicizing something, and asking important questions about the policies that either allowed for, contributed to, or made the tragedy more likely. Failing to address those policies will only lead to more tragedy.

I don't mean to sound hysterical but there are some pretty clear historical examples of "force the urban-dwellers to the farms," and none of them are great.

One reason Stephen Miller is so strong is that much of the rest of the Trump Cabinet is so weak

Number 3 here is hugely important, and not unique to the U.S. system. Even in the German courts of the Third Reich, which were notoriously complicit in the horrors which took place, there were *some* lower court rulings that pushed back on the regime, but these were always reversed by higher courts.

Harvard sociologist/polisci Theda Skocpol explains how the vast expansion of ICE in BBB may be Trump's secret weapon to overcome the barriers of federalism and complete his autocratic takeover of the American state. (History from Germany & Hungary in 20s/30s.) talkingpointsmemo.com/edblog/criti...

Coming soon: “The Originalist Case for Why the President Actually Does Have a Dispensation Power, which We Totally Knew All Along, but Didn’t Want to Say until We had A President We Trusted to Use It ‘Correctly.’”

The leadership of our co-chairs @judgeluttig.bsky.social and Dean Erwin Chemerinsky has been extraordinary in gathering us for this effort.

I mean this sincerely: If you are a liberal Supreme Court pundit, and after *this* term you are still dreaming up fantasyland narratives to explain how John Roberts is going to heroically save democracy from Trump, it is time to hang up your keyboard and never post again

Again we see basic tenets of Fascism defining the administration. This is full-scale adoption of Mussolini’s slogan “Mussolini ha sempre ragione” (“Mussolini is always right”). The cult of the infallible leader is always central to authoritarian rule.

@evanbernick.bsky.social’s thread on The Dual State highlights the important role the normative state played in “keeping up appearances.” An additional point here: the normative state also blessed the illegality of the prerogative state, advancing the regime’s agenda. We are seeing this in SCOTUS.

I am running out of words to describe how every single action of this administration comes straight from authoritarian playbooks. Installing participants in a failed coup in what is essentially a political crimes division of the DoJ is just another demoralizing example.

At a time when multi-billion dollar corporations are sacrificing journalistic integrity to appease an authoritarian regime, it is encouraging to see students engaging in actual journalism.

The silence now from conservatives who urged action to address the treatment of the Uyghur community just last year, highlights the moral bankruptcy of modern conservative politics. It should not be a harder question to stand up against domestic Concentration camps than foreign ones.

It’s worse than just the hypocrisy of the “tough on crime” rhetoric from MAGA (which was always a dog whistle scare tactic anyway). A defining characteristic of Fascist regime’s like Mussolini’s Italy was the political use of arbitrary pardons and amnesties. It’s about party control of punishment.

As institution after institution capitulates to the lawless demands of this administration we lose potential counterweights against an authoritarian regime. Elite institutions are failing us time and again.

You have got to be kidding me. On top of this being incredibly stupid & hurtful, how is it possible that our country’s supposedly most elite centers of education have learned nothing about the failure of appeasement. And not only from historical examples, just from reading a damn headline recently.

Military personnel, acting in their military capacity (here as JAG members) to decide civil claims in a civilian bureaucracy in the name of “efficiency.” This is an absolute hallmark of a police state. I am so sick of saying this, but we keep seeing new examples. Stop pretending this is normal.

This has always been the goal. In addition to the white nationalist agenda pushed by Stephen Miller, there is a political agenda of removing voters. And despite repeated (false) claims of many non-citizens voting, in order to actually impact the electorate, citizens would always have to be targeted.

So much for the Senate being the “cooling saucer” designed to tame the passions of the House. Unbelievable cowardice on display here.

A hallmark of imprisonment in authoritarian regimes is intentionally under-resourced and overcrowded facilities. The goal is to reduce the humanity of each individual. The combination of cruelty and incompetence exacerbating human suffering.

Final vote. 50-50. VP breaks the tie. One single GOP Senator could have stopped this abomination. Saved millions of parents from watching their child go hungry. Saved the lives destroyed when Medicaid disappears. They will all live forever with the horror of this bill.

I struggle with the defense of Trump v CASA raised by Will Baude today, and by others previously: the acted now because: “the first few months of the second Trump administration appeared to be kicking things into yet another gear [regarding the number of nationwide injunctions]. /1

I am honored and grateful to be named a Schmid Professor for Excellence in Research for the 2025-26 academic year. My thanks to the Schmid foundation for their support and to the @unlcollegeoflaw.bsky.social faculty for this honor.

There are many other reasons to oppose the bill (not to mention the alteration of senate process to pass it), but I have to transition back to research today. So I leave one final encouragement to please call your senators and urge them to vote against this bill. Capitol Switchboard: 202-224-3121

Next up, for my discussion of the (ridiculously named) One Big Beautiful Bill Act: Restrictions on AI regulation. In the interest of full transparency, the following presents a significant amount of opinions and, of course, reasonable people can disagree. Capitol Switchboard: 202-224-3121 /1

Next issue I want to highlight in the budget bill (I should note that none of these issues are new, and have been widely reported) is the vast increase in spending on immigration enforcement at a time when ICE appears to be unconstrained by law. Capitol switchboard number: 202-224-3121. /1

Posting throughout the day today as a voter and an advocate, not an academic: I will be encouraging folks to call their senators to express their opposition to the budget bill, by highlighting various issues. Capitol switchboard number: 202-224-3121. First up: Medicaid cuts /1

Remarkably strong correlation between pundits who told me the Supreme Court upholding Texas’s abortion bounty hunter law was technical and not a sign it would overturn Roe, and pundits assuring me birthright citizenship is fine because people can “just file a class action” or whatever

This is, in my opinion one of the key errors in originalism generally, but specifically in how it is applied to executive power. And it is no coincidence that originalists often lean into English history (which of course is monarchical) when deciding these cases.

We are heading down an incredibly dangerous road. Authoritarian government control over higher education is a step towards authoritarian government control over thought. UVA capitulating to this assault is incredibly disheartening and will not stop future demands from the Administration.

There is so much to say about Trump v. CASA, and many brilliant people are discussing them here and elsewhere. I want to add just a few thoughts on consequences for citizens, litigants, and government /1 🧵 www.supremecourt.gov/opinions/24p... www.supremecourt.gov/opinions/24p...

The concerted act of “othering” people and voices that don’t fit into the State’s preferred mold is always an important step towards silencing these voices and removing g them from the polity. The Court’s decisions today advance the ball on this process in an alarming way.

If the Supreme Court thinks universal injunctions are unconstitutional, to wait until *now* to say that, in this of all cases, with this of all presidents, is a devastating indictment of both its impartiality and its prudence.

Among all of the other reasons to criticize Medina, it makes clear that Dobbs was never just about returning abortion decisions to the states. It was always (as @profmmurray.bsky.social and others have been saying all along) an intentional step making it harder to protect abortion rights everywhere.