These guys are waaaay too big to have won a competitive marathon

The denial of judicial review thus helps resolve a conflict between two conservative political projects: the unitary executive and mass deportation.

The low-level bureaucrats of the “deep state” can no longer adjudicate patent or securities law claims. But they can still deport immigrants unilaterally and without appeal.

By cutting off review, the government has created a zone of lawlessness in which it can deport immigrants without conforming to the Constitution’s requirements. This strategy has effectively excluded immigrants from the Roberts Court’s formalist reshaping of the administrative state.

Congress foreclosed judicial review through a series of jurisdiction-stripping provisions. This means Expedited Removal effectively exists outside of the Constitution.

By conducting removal proceedings and issuing unreviewable deportation orders, they exercise authority reserved to Principal and Inferior Officers. Yet there is no clear mechanism to bring an Appointments Clause challenge to the Expedited Removal system.

That means they must either be appointed by the President and confirmed by the Senate, or appointed by an agency head pursuant to a statute. Further, all final Executive Branch decisions must be subject to review by a Principal Officer. Low-level immigration agents do not satisfy these conditions.

In recent decisions, most notably Lucia v SEC and U.S. v Arthrex, the Court has strengthened the requirements for wielding executive branch power. Any executive employee who exercises significant authority under the laws of the United States must be either a Principal Officer or an Inferior Officer.

If the Trump Administration succeeds in its current aims, Expedited Removals will soon comprise nearly the entire deportation system. Expedited Removals are also unconstitutional, based on the Supreme Court’s reading of the Article II Appointments Clause.

They involve an immigration agent interviewing an immigrant and deciding whether to order them deported, with no opportunity for appeal. Expedited Removals currently produce more than half of all deportation orders. And they are the centerpiece of President Trump’s ongoing mass deportation campaign.

Since 1997, low-level immigration agents have conducted fast-paced deportation hearings. These hearings, called Expedited Removals, circumvent the formal immigration court process.

Just posted "Deportation in the Deep State" to SSRN, comments welcome! Abstract/summary below.

papers.ssrn.com/sol3/papers....

so keep doing what I've been doing then

Seems like they're going to lose rather lopsidedly in the Supreme Court, might just declare victory and move on. I imagine whenever he applies to be a federal judge he'll attach a long compilation of every law professor social media post excoriating him.

Graph showing that one-third of jail admissions are for misdemeanor charges.

Each year, 2.7 million jail admissions are for misdemeanor charges.

Yes, this includes charges for behaviors like jaywalking or even sitting on a sidewalk.

Justice Barrett, Slavery, and Birthright Citizenship I have previously written about how all of the Trump Administration's rationales for denying birthright citizenship to children of…

In today's SCOTUS oral argument, Justice Barrett asked about how Trump's rationales for denying birthright citizenship to children of illegal migrants would also deny it to many ex-slaves. SG Sauer's answer on crucial issue was factually wrong. See my explanation here: reason.com/volokh/2026/...

Pretty momentous day for anyone who doesn’t think we landed on the moon in 1969

Alito seems to be saying that they can invent new exceptions by analogy, which sounds a lot like living constitutionalism

Yes

What the heck was Hurley doing with the ref?

I don’t understand why left legal scholars spend so much time imagining conflicts between mutually compatible strategies. The right certainly doesn’t do this, much to its benefit.

Hot off the presses!

Presenting “Sentencing Immigrants” by Professor Eric S. Fish (@ericfish.bsky.social) of the University of California at Davis School of Law (@ucdavislaw.bsky.social). Read more here: southerncalifornialawreview.com/2026/03/26/s...

On Pranjal Drall & @samuelmoyn.bsky.social essays in Balkinization criticizing me, @gowder.io @anthonymkreis.bsky.social & @evanbernick.bsky.social

I think they are wrong about 2 big points, but I think they may be right about an implicit 3d point.
It should have been directed only at Evan & me.

This is a self-defeating way of approaching legal politics. Of course Supreme Court decisions are political in a broad sense. But the legal arguments still matter. Decisions cost the Court more legitimacy if they are openly lawless. Why cede the terrain and give up arguments from legal authority?

Documents filed this morning by the U.S. Attorney for the Southern District of NY exposing how ICE has been lying for a year — not only to the public, but to the courts and to prosecutors — about being authorized to make arrests at 26 Federal Plaza and other immigration courts.

Documents filed this morning by the U.S. Attorney for the Southern District of NY exposing how ICE has been lying for a year — not only to the public, but to the courts and to prosecutors — about being authorized to make arrests at 26 Federal Plaza and other immigration courts.

According to documents filed this morning by the U.S. Attorney for the Southern District of NY, ICE has been lying for a year — not only to the public, but to the courts and to prosecutors — about being authorized to make arrests at 26 Federal Plaza and other immigration courts. (1/2)

I guess we either need to cede the debate entirely and just let them strip millions of people of citizenship, or confine our amicus briefs to political as opposed to legal arguments? Why is so much left scholarly energy focused on foreclosing certain strategies? The right doesn't have this hangup.

The U.S. runs the largest immigration detention system in the world. But what law actually protects people inside it? A Harvard Law Review article by @Das_Alina provides an alarming answer. 🧵

think my thesis is wrong? come play me in one-on-one basketball to 11. No? apology accepted.

A motivated student could probably build an article submission system pretty easily using an AI coding tool. Harvard and Yale have their own. I think the problem is there's no real incentive to do so. Law reviews have 100% turnover, and the Scholastica system works fine from editors' perspective.