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Steve Vladeck Profile picture
@steve_vladeck
Jun 4, 2018 • 3 tweets • 2 min read • Read on X
The government has filed a response in #SCOTUS to our supplemental letter in Dalmazzi, suggesting that there is “some dispute” as to whether a military officer who retired from the Army can keep serving on the #GTMO Court of Military Commission Review:

Our position all along has been that military officers appointed to the CMCR (like Judge Herring) hold _two_ offices, & can stay on the CMCR even after leaving the military. It sure seems like the government’s saying that either we’re right or he’s no longer validly on the CMCR.
And if the latter is somehow true, that will just create more headaches for the #GTMO appeals court, where defendants could presumably then challenge any ruling in which Judge Herring participates going forward (and so the court would be down yet another judge)...

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More from @steve_vladeck

Steve Vladeck Profile picture
Jul 18, 2018
“Birthright citizenship was a mistake whose time has gone.”

washingtonpost.com/opinions/citiz…

Except that, contrary to what this op-ed argues, #SCOTUS really did settle this issue in 1898:

scholar.google.com/scholar_case?c…
Here’s the key passage from United States v. Wong Kim Ark:
One can argue that #SCOTUS got it wrong, but it would take the Court overruling itself or a constitutional amendment to change that rule; doing it by Executive Order would be unconstitutional.
Read 4 tweets
Steve Vladeck Profile picture
Jul 16, 2018
Last night's 5th Cir. ruling in Whole Women's Health (ca5.uscourts.gov/opinions/pub/1…) is another example of the phenomenon I tweeted about last week—conservative judges subordinating settled law to their own policy preferences, however compelling they may be.

A quick #thread on why:
1. The underlying dispute in the case is over a third-party subpoena issued by the plaintiffs (abortion providers) to the Texas Conference of Catholic Bishops (TCCB) as part of their challenge to #SB8. TCCB sought to quash the subpoena, and ultimately lost in the district court.
2. TCCB then sought appellate review of the denial of its motion to quash. Without reaching the merits of its claims that the subpoena violates the First Amendment and the Religious Freedom Restoration Act, Judges Jones and Ho agreed, holding that the subpoena was overbroad...
Read 11 tweets
Steve Vladeck Profile picture
Jul 11, 2018
The claim that conservative judges, unlike progressives, “follow the law” and simply “call balls and strikes” is a preposterous, tired canard.

Among the many counterexamples, this #thread focuses on one (involving Judge Kavanaugh)—tort suits against private military contractors:
1. As the military has come to rely on private military contractors (PMCs) for increasing logistical and other support overseas, the contractors have, not surprisingly, been subject to increasing litigation for alleged (and, in many cases, proven) misconduct by their employees...
2. Some of these claims are from servicemembers—for example, those who claim they were seriously injured as a result of PMCs repeatedly burning hazardous materials in open-air "burn pits" in Iraq and Afghanistan:

nytimes.com/2018/05/17/mag…
Read 12 tweets
Steve Vladeck Profile picture
Jun 29, 2018
Until 1866, the size of #SCOTUS was tied directly to the number of circuit courts of appeals—from 6 seats in 1789 to 10 seats in 1863.

Each Justice therefore not only supervised a circuit, but truly _represented_ it, guaranteeing at least one meaningful source of diversity...
When Congress took away seats in 1866 to punish President Johnson, it thereby set the precedent for treating the Court’s size as a political consideration—a big part of why it’s been stuck at 9 since Congress restored two of the three deleted seats in 1869.
Untethering the Court’s size from strict geographic considerations not only politicized it, but it also removed one of the only formal incentives for any kind of diversity—such that any vector of diversity today is solely a result of political calculations and/or pressures.
Read 4 tweets
Steve Vladeck Profile picture
May 24, 2018
1. Following up on last week's @WSJ op-ed, Prof. Steve Calabresi has now posted to @SSRN a nine-page "Opinion on the Constitutionality of Robert Mueller's Appointment":

papers.ssrn.com/sol3/papers.cf…

His bottom line: It's unconstitutional.

This #thread explains why he's just wrong:
2. The key to understanding Calabresi's argument is to understand that it is actually two _different_ arguments that need to be addressed separately:

(i) that Mueller's _appointment_ violates the Appointments Clause; and
(
ii) that Mueller's _actions_ violate the Clause.
3. The first of these arguments is a claim that, based on the terms of the office, the Special Counsel is a "principal" officer under the Appointments Clause, and must therefore be nominated by the President, confirmed by the Senate, and removable at will by the President.
Read 14 tweets
Steve Vladeck Profile picture
Apr 14, 2018
1. At the risk of trying to bring some nuance to Twitter, what follows is a #thread on U.S. law vis-a-vis the war powers, and why the legality of the #SyriaStrikes as a matter of U.S. law (to say nothing of int'l law) is both far from certain and revealing of far deeper problems:
2. Let's start from first principles. For uses of military force to be lawful as a matter of U.S. domestic law, the authority to use such force must stem either from an Act of Congress or from the President's powers under Article II of the Constitution.
3. As the government has already implicitly conceded, no statute authorized these strikes.

Although both the Obama and Trump administrations have relied upon the 2001 Authorization for the Use of Military Force (#AUMF) to use force _in_ Syria, those strikes were against #ISIS.
Read 14 tweets

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