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David Froomkin@dfroomkin.bsky.social |
217 followers 156 following 43 posts
Incoming assistant professor, University of Houston Law Center. I write about democracy and the separation of powers. david.froomkin.com
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David Froomkin
@dfroomkin.bsky.social
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Yes, this is absolutely right. In Federalist 70, Hamilton says that the great innovation of the American system of government is to have an accountable chief executive—including subjecting the President to prosecution.
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David Froomkin
@dfroomkin.bsky.social
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The irony of the Biden kerfuffle is that the portrait of him as a mere mouthpiece for his party—intended as a devastating criticism—is actually a better thing for a chief executive to be than an idiosyncratic and unpredictable charismocrat.
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David Froomkin
@dfroomkin.bsky.social
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See also Trump v. Anderson (reversing the text's rule for lifting the Fourteenth Amendment Section 3 disability).
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David Froomkin
@dfroomkin.bsky.social
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The core problem with the Court's conservative majority is that they insist they are "formalists" but then go ahead and invent rules out of whole cloth that appear nowhere in the Constitution—and often are contradicted by its text.
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David Froomkin
@dfroomkin.bsky.social
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And "according to Law" here is a constitutional term of art meaning that statutory law controls. I.e. whether there is a presidential exception is for Congress, not the court, to decide.
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David Froomkin
@dfroomkin.bsky.social
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Why does our democratic ethos seem to embody some sort of Führerprinzip? Why does it matter if Biden has good days and bad days, as long as he has appointed good people? The ongoing freak-out only makes sense against the backdrop of the ascent of the unitary executive theory.
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Blake Emerson
@blakeprof.bsky.social
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Tl;dr : legislation
papers.ssrn.com/sol3/papers....
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David Froomkin
@dfroomkin.bsky.social
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My big takeaway from tonight's debate: presidentialism is a bad system of government.
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David Froomkin
@dfroomkin.bsky.social
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Justice Barrett's argument in Rahimi against a "use it or lose it" standard for legislative power is absolutely right. It's a shame the Court has failed to recognize the same about agency authority in its major questions doctrine cases.
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John Pfaff
@johnpfaff.bsky.social
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Cops who shoot and kill unarmed Black men get less aggressive treatment than this guy who gives rich white guys tickets.
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Dan Froomkin (Presswatchers.org)
@froomkin.bsky.social
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Maya Pines Froomkin, 1928-2024 presswatchers.org/2024/06/maya...
8 replies 2 reposts 35 likes
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Amanda Weiss
@amandaweiss.bsky.social
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Paper conditionally accepted to BJPS!
"Beyond Retraumatization: Trauma-Informed Political Science Research" (osf.io/rvksp)
Robust ethical frameworks improve the experience of research participants and help us get richer, more complete data.
polisky
1 replies 3 reposts 8 likes
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David Froomkin
@dfroomkin.bsky.social
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One of Robert Dahl's great insights: "To assume that this country has remained democratic because of its Constitution seems to me an obvious reversal of the relation; it is much more plausible to suppose that the Constitution has remained because our society is essentially democratic."
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David Froomkin
@dfroomkin.bsky.social
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If judicial review is a legislative power, then clearly it is unconstitutional: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." U.S. Const. art. I, § 1.
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David Froomkin
@dfroomkin.bsky.social
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Important diagram
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David Froomkin
@dfroomkin.bsky.social
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The argument in the briefing seems to be that because Congress passed legislation to enforce Section 3, Section 3 is not self-executing. But just because Congress did legislate doesn't mean that it had to: Congress could have been wrong, or it could have been over-cautious.
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David Froomkin
@dfroomkin.bsky.social
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We certainly don't want to deny that Congress has enforcement power under Section 5, only to argue that Section 2 is self-executing and doesn't require enabling legislation. Congress has never enforced Section 2, though presumably it could.
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David Froomkin
@dfroomkin.bsky.social
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I am delighted to see "The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections," coauthored with Eric Eisner, in print in Arizona State Law Journal. Coauthoring this piece was such a pleasure -- stay tuned for more from us. papers.ssrn.com/abstract=439...
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David Froomkin
@dfroomkin.bsky.social
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It's a great piece, and I think Ian gets it exactly right—indeed, the more deliberative democracy fetishizes consensus, the less it is a tool for emancipation.
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b-boy bouiebaisse
@jbouie.bsky.social
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i think the best way to understand the supreme court's conduct in trump v. united states is as an explicit effort to intervene in the 2024 election on behalf of the former president. it is a gross abuse of power on par with dred scott and deserves to be met with sanction from the elected branches.
30 replies 773 reposts 2448 likes
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David Froomkin
@dfroomkin.bsky.social
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Interesting - I certainly see how Doubt may invite a History Boys reading (two plays from the same year!). But one of the things I find most interesting is how Shanley’s text tempts us to rush to judgment even as we know there is no proof—which I think illustrates the real theological/social point.
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David Froomkin
@dfroomkin.bsky.social
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Another shocking example of the normalization of criminality among American elites. Apparently members of the White House press corps habitually—and "proudly"—steal objects from Air Force One.
www.politico.com/newsletters/...
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David Froomkin
@dfroomkin.bsky.social
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So many of the country's problems would be solved by expanding the House of Representatives. Not only would it fix the malapportionment of the House, it would reduce the Senate's distortion of the Electoral College.
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David Froomkin
@dfroomkin.bsky.social
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True that presidential participation would be necessary for legislation, but I don't think that avoids the contradiction. And yes, the presumption is definitely that provisions of the Fourteenth Amendment are self-executing!
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David Froomkin
@dfroomkin.bsky.social
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There have been other Roberts Court decisions with worse consequences, but in some ways Trump v. Anderson has done the most to make me doubt the plausibility of our most basic understanding of what courts do.
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David Froomkin
@dfroomkin.bsky.social
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I haven't looked into it (though I would be surprised), but other scholars have observed that it is very hard to reconcile Trump v. Anderson with originalism. See originalismblog.typepad.com/the-original... and reason.com/volokh/2024/....
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David Froomkin
@dfroomkin.bsky.social
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The NY Daily News oddly suggested that Father Flynn’s guilt is clear here—which is not only inimical to the spirit of the play but a baffling response to Schreiber’s moving and humane performance. “Doubt” has layers, but it is not a story about the righteousness of prosecution.
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David Froomkin
@dfroomkin.bsky.social
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I saw the excellent Broadway revival of “Doubt” the other day, and I’m glad to see it has generally received critical acclaim. Liev Schreiber and Amy Ryan’s performances are less explosive than those in the film but in many ways more vivid and compelling for the restraint.
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David Froomkin
@dfroomkin.bsky.social
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Let Biden be Biden
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David Froomkin
@dfroomkin.bsky.social
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Federalism for me but not for thee.
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David Froomkin
@dfroomkin.bsky.social
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Yeah, the excising of the militia portion of the Second Amendment seems like a good example. But the holding that the Second Amendment confers an individual right could still be consistent with that language.
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David Froomkin
@dfroomkin.bsky.social
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Setting aside whether Chiafolo reached the right result, it's not clear to me that it contradicted constitutional text in the same way. Seems like it permitted something in the interstices of the constitutional rules.
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David Froomkin
@dfroomkin.bsky.social
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And the problem here isn't just surplusage (like how the UET renders the Opinion Clause surplusage) but flat-out contradiction.
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David Froomkin
@dfroomkin.bsky.social
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There are definitely cases of the Court interpreting language in non-obvious ways, Hans and progeny, Bolling v. Sharpe, etc. But they typically (1) acknowledge it, (2) appeal to other principles (like structure) to justify it, and (3) preserve some meaning for the text rather than just excising it.
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David Froomkin
@dfroomkin.bsky.social
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Trump v. Anderson seems straightforwardly to excise the 2/3 rule from Section 3. Are there other cases of the Court so blatantly ignoring constitutional text? I can think of examples of twisting language (e.g. Hans v. Louisiana) and of cabining language (Slaughterhouse Cases), but not this.
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David Froomkin
@dfroomkin.bsky.social
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(1) Congress can (only) remove the Sec. 3 disability by 2/3 vote. (2) Imposition of the Sec. 3 disability requires Congress to pass a statute. (3) Congress can overturn a statute by majority vote -- thus removing the Sec. 3 disability. The Court says (2). Then contradiction between (1) and (3).
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David Froomkin
@dfroomkin.bsky.social
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I used to think that courts at least had to apply the most precise constitutional requirements as written. But the majority seems pretty comfortable with taking a red pen to the Constitution.
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David Froomkin
@dfroomkin.bsky.social
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Is there any coherent theory of why Section 1 is self-executing while Section 3 is not? Not that the majority bothered to provide one....
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David Froomkin
@dfroomkin.bsky.social
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It is honestly amazing that the Court has the chutzpah now to rely on Section 5 of the Fourteenth Amendment.
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David Froomkin
@dfroomkin.bsky.social
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Is there a critique of Mancur Olson implicit here? It seems like redistributive rather than predistributive policies economize on collective action effort. People just have to vote, and the mechanism of redistribution is highly centralized. But maybe Olson's motivational assumptions are wrong.
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David Froomkin
@dfroomkin.bsky.social
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Interesting research (lpeproject.org/blog/the-pol...) providing some confirmation for @himself.bsky.social's classic criticism of "left neoliberalism" (crookedtimber.org/2011/07/19/2...).
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David Froomkin
@dfroomkin.bsky.social
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My article on the legal dimensions of Senate reform has just been published in the Utah Law Review: dc.law.utah.edu/ulr/vol2024/.... My father and I coauthored this piece as a pandemic project, and it means a lot to me to see it in print. I hope it stimulates more creative thought about solutions.
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Zach Liscow
@zliscow.bsky.social
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New paper (w/ Ed Fox): The super-rich borrow against their big stock gains & consume from that, paying no tax. This is unfair. We show how to fix this and raise ~ $100 billion in a progressive, efficient way.
ssrn.com/abstract=471...
1/
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David Froomkin
@dfroomkin.bsky.social
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Such a wonderful feeling to see my first law review article appear in print today. I am enormously grateful to the editors at JREG. www.yalejreg.com/print/the-no...
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David Froomkin
@dfroomkin.bsky.social
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Very strange wording in the third paragraph of this article: "about two dozen trustees, more than half of the 48 voting members ..." Two dozen is not "more than half" of 48. And if it was 25, why use the evasive "about two dozen"? www.nytimes.com/2023/12/11/u...
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David Froomkin
@dfroomkin.bsky.social
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I had the opportunity to recommend this guide to a student today. It is a wonderful resource. Thanks, Amanda, for producing it!
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David Froomkin
@dfroomkin.bsky.social
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Such an important point. There is much less constitutional law on presidential power than we imagine.
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David Froomkin
@dfroomkin.bsky.social
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An important contribution to the debate over benefit-cost analysis, focusing on the shortcomings of Kaldor-Hicks efficiency as a criterion for evaluating government interventions -- and how it can be improved by "upweighting" poor people's interests. The corrected link: ssrn.com/abstract=458...
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David Froomkin
@dfroomkin.bsky.social
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The conservative legal movement has really embraced this. Their approach to administrative law seems to be 'make government less accountable, so it becomes scary.' Their approach to statutory interpretation seems to be 'make government less programmatic, so it becomes unappealing.'
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Amanda Weiss
@amandaweiss.bsky.social
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Your pet | what they're named after
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