I've published this review essay, The Era of Democratic Dissatisfaction, of Skowronek's new book, The Adaptability Paradox: Political Inclusion and Constitutional Resilience.
democracyproject.org/posts/the-er...
The President needs the Court's legal endorsement to be able to continue to impose the tariffs. He can't simply have customs agents extorting money from importers at the border.
The question of refunds for past tariffs is potentially more complicated, but we are not at that stage yet.
I have always said that in any head-on confrontation with the President, the Court was on its strongest ground in the tariffs case. This is not a context in which presidential "defiance" of the Court's decision is possible.
On today's Supreme Court decision on standing in election law cases, here's my post at Election Law Blog:
electionlawblog.org?p=153834
I don't think he's going to like @samuelmoyn.bsky.social's new book.
From the Kavanaugh concurrence:
But if the Court is indeed holding that protective functions are not law execution, then do you still think there is a role for the guard under 253 (2) in performing these functions?
Is your theory that protective functions are instead justified to avoid "the course of justice" being impeded?
I recognize the Court's ambiguity in not exactly holding that protective functions are not execution of the law. The Court only takes the govt at its word on that.
253(2) permits armed forces or the militia against [actors who] "oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws."
The decision takes the govt at its word that protective functions are not execution of the laws.
If we end up there, much will turn on how intensively the Court reviews the Pres' assertion that such force is indeed necessary to protect federal personnel or property.
The Court's action in the Chicago national guard case means that if a Pres. believes force is needed to protect federal personnel or property, he must use the US military rather than the national guard. In other words, the Court's opinion takes the national guard option off the table.
This is not to say that a win for the challengers in this case would be terrible. I am persuaded by @rickpildes.bsky.social and Bob Bauer's argument that, given the deregulation of everything else, further deregulation in this case might in fact have beneficial consequences bsky.app/profile/rick...
I've published this essay at Bloomberg Law on the Supreme Court's stay order in the Texas redistricting case
Decision has troubling implications for federal court oversight of state law election changes more generally.
news.bloomberglaw.com/legal-exchan...
Today the Supreme Court is hearing a major case on the First Amendment rights of political parties and campaign finance
Bob Bauer and I published this essay on the case, arguing that money flowing through the parties, rather than outside groups, is better for the democratic process
Link in next post
After Trump v. Slaughter, will there be any independent entities left other than the Federal Reserve? This post addresses Congress' critical effort to ensure the federal election commissions could not be captured by one political party.
electionlawblog.org?p=153385
I look forward to defending free speech from its progressive critics — and conservative assailants == as the Tanner Letures Nov. 12 and 13 @princeton.edu
A timely topic, sadly
lectures.princeton.edu/lectures/202...
Just saw this, glad you enjoyed it.
On Lawfare Daily, @klonick.bsky.social spoke to @rickpildes.bsky.social about his article, “Political Fragmentation in Democracies in the West,” the link between social media and threats to democracy, and the unique way this technology is now impacting the United States political system.
Hat tip to @martylederman.bsky.social
Steve Skowronek has an essay today on "Authoritarianism Then and Now" at the NYU Democracy Project:
democracyproject.org/posts/author...
"If the major parties are pressed to recognize through fusion that a significant bloc of voters prefer something other than what the major party candidates are offering, that would create pressure for the major parties to be more responsive to the concerns of more voters."
"Fusion is not a magic bullet, but it offers the promise of helping to bridge some of the extreme divides of our politics.If there is some common ground between independent, conservative and liberal voters, fusion would help unearth that common ground in the place it matters most, the voting booth..
I’ve published an essay in the NJ Law Journal arguing that the Court should strike down the state’s ban on fusion voting.If a significant center of the electorate exists that feels unrepresented with the major parties represent, fusion is a way those voters would be able to express their preferences
On fusion voting and the NJ Supreme Court:
A new political party called the Moderate Party is challenging on state constitutional grounds NJ's ban on fusion voting. The court is considering whether to hear this challenge.
I published an essay urging the court to take the case. More below..
Here's an analogy. If the government imposes financial costs on you, you have standing. But if the government is beneficent and engages in spending you believe is illegal, it can be difficult to find anyone with standing to challenge.
That is a significant change in doctrine. And in my view, that would be a good development.
That will bring about a symmetry. Rules that burden voters could already be challenged; now rules that expand voting will also be capable of advance challenge.
That will mean the general legality under federal law of voting rules can be resolved in advance.
such as having to show a need to expend resources to comply with the rule, or that there's a risk the rule would disadvantage you.
But the practical effect is going to be that a candidate (and party) will be able to bring federal challenges in advance of an election to rules that expand voting.
The law sometimes embarrasses itself, but a rule that parties can challenge a rule in a candidate's race but the candidate himself cannot challenge that rule, would be bizarre.
The Court might tie itself in knots linking party/candidate standing to some formalistic "injury"...
