Pat Sobkowski's avatar

Pat Sobkowski

@pjsobkowski.bsky.social

554 followers 382 following 250 posts

Prof., Marquette University Department of Political Science. American Political Development, Constitutional Law, Administrative Law. #polisky

đź“ŤMilwaukee, WI

tps://patsobkowski.com/'>patsobkowski.com/

Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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We adopted Abe today! “With MEOWlice toward none.”

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Josh Chafetz's avatar Josh Chafetz @joshchafetz.bsky.social
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1/ I'm agnostic as to whether Biden should withdraw from the race. It's a genuinely tough question IMO. But I have clarity on one thing: He should absolutely not step down as president. If Harris becomes President, the Vice Presidency is empty. Under the 25th Amendment ...

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David Noll 's avatar David Noll @david.noll.org
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Saying someone is presumptively immune from prosecution then barring the introduction of evidence of their mental state is a neat trick.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Sorry, omitted a word. Evidence of immune acts cannot be introduced as evidence in a prosecution for non-immune acts.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The text matters, say the high lords of the court.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Not sure I’d say unlimited. Removal and pardons are unlimited, but the presumption for official acts can be overcome.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Thread 🧵 on the immunity decision. Roberts basically creates 3 big boxes to analyze Presidential immunity claims. 1. Absolute immunity—Core executive power (firing of executive branch officers, pardons) —the president cannot be prosecuted for this—ever. Trump pressuring DOJ officials=immune.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The court also says that evidence of conduct for which POTUS is immune, in a prosecution for acts that are not immune.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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3. No immunity—unofficial/private acts. The logic here is that a president’s private acts do not have much—if any—bearing on whether they are able to undertake their constitutional duties—they’re personal matters.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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2. Presumptive immunity—official acts: things that are not covered by #1. The discussions with Pence on J6 fall here. Lower court will have to decide whether Trump’s conversations w/ Pence are entitled to the presumption.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Thread 🧵 on the immunity decision. Roberts basically creates 3 big boxes to analyze Presidential immunity claims. 1. Absolute immunity—Core executive power (firing of executive branch officers, pardons) —the president cannot be prosecuted for this—ever. Trump pressuring DOJ officials=immune.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Another important point: the majority says conduct that is protected (immune) cannot be used as evidence in another prosecution for unprotected conduct.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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This is exactly right. Most litigated cases could be construed as falling into 1, 2, or all 3 of these tiers depending on framing.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The tiers of presidential immunity: "core" executive powers/functions: absolute Official acts: presumptive immunity Unofficial acts: no immunity For a court that praises formalism, this test is... not that.

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Mark Lemley's avatar Mark Lemley @marklemley.bsky.social
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This is the actual, original article The Imperial Supreme Court. Accept no imitations from the New York Times, which decided to take the title and idea without attribution (after turning down my op ed with the same title, no less)

harvardlawreview.org/forum/vol-13...

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Blake Emerson's avatar Blake Emerson @blakeprof.bsky.social
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After last week's developments in administrative law and the presidential election, I fear the "existential challenge to the administrative state" is accelerating. Check out my forthcoming paper in the Georgetown Law Journal on the developments and how to respond. papers.ssrn.com/sol3/papers....

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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We’re adopting this little guy soon. His name shall be Abe.

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Julia Azari's avatar Julia Azari @juliaazari.bsky.social
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Read Dave, who has managed to muster the clarity that I could not this morning

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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I don’t speculate on what will replace Chevron. I don’t think anyone can just yet. We’ll have to see how things play out.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The practical effect is that the court gets to decide which regulations are OK/not OK while tying the hands of agencies, lower courts, and Congress.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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There are differences between MQD and overruling Chevron. As Nick Bednar pointed out, Chevron always created some confusion. The disturbing part is that the court has decided to create that confusion with little to no guidance on how to resolve it.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The Roberts Court’s SOP jurisprudence does several things. (1) it foists confusion on lower courts; (2) the court resorts to “less radical” means to achieve its goals—primarily statutory, rather than constitutional grounds.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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I wrote something on Loper Bright and the overruling of Chevron for Yale JReg.

The essay builds on some themes that I articulated in an essay after Biden v. Nebraska last year (link in comments.)

A short 🧵

yalejreg.com/nc/chaos-and-c…

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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People have been making these critiques of the court for decades. The only difference is the ideological stakes and who controls the court.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Keep an eye out for something from me elaborating on this argument.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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The point is that the Roberts court is intent on finding a “happy” medium: upend half a century of adlaw doctrine, let the lower courts fight, then step in and “save” the day.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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One last thought: I don’t think anyone knows what will replace Chevron. What I’ll say is that government cannot work without some form of deference to agency interpretation. Will that look like Skidmore? Maybe. Something else? Possibly. 1/2

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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While overruling Chevron is far from “less radical”, I think my main point still stands: the Roberts Court gets to sit back and let lower courts and lawyers fight about what replaces Chevron. Then they can step in and say “no no, this isn’t right.” A power grab.

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Nicholas Wallace's avatar Nicholas Wallace @wallace.bsky.social
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5th Circuit judges finding out Chevron's been overturned

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Monday is the last day for SCOTUS opinions. Trump immunity, among others, coming.

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Adam S. Rust's avatar Adam S. Rust @asrust.bsky.social
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More like ChevrOFF deference amirite?

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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*Supreme Court in flames* Roberts: “now listen you! Our institutions MATTER and I MEAN IT”

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Frankly I haven’t had time to even look at that opinion. Agreed on the latter point. When the self-proclaimed institutionalists are under siege, maybe they’ll question their arrogance.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Overruling Chevron is nothing but a power grab.

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Pat Sobkowski's avatar Pat Sobkowski @pjsobkowski.bsky.social
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Want President Whitmer, President Pritzker, or President Newsom in 2028? Vote for Biden in 2024.

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