David Froomkin

They act that way not because they genuinely believe it, but because they are acutely aware that their fate rests on *you* believing it.

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That was basically Calabresi's argument in "Some Normative Arguments for the Unitary Executive."

Excellent analysis of what the US Supreme Court has done and might do. Are they providing the appearance of normal law in order to disguise the authoritarianism driving the executive branch? That's the logic of the dual state.

Hundreds of scholars say U.S. is swiftly heading toward authoritarianism Most — but not all — political scientists are deeply troubled by the president's attempts to expand executive power, according to a national survey.

This article reports that hundreds of scholars—"the vast majority" of those surveyed—say the US has moved into authoritarianism. It then gives equal space to a single outlier who says the source of the expert consensus is that those scholars "are coming from the political left." Incredible.

What’s amazing about this is that it’s not activists, it’s random people in the street, dudes in trucks. They know who the villain is.

I think MAGA has a bigger problem here than they realize

I guess there is a deeper problem for the speech act account in that legislatures (collectively) don't have intentions. Though I think the focus on intentions is also a problem with speech act theory in making sense of a lot what is going on with speech acts.

I can certainly imagine situations in which legislators intend to legislate even though they are unlikely to obtain compliance. If no one thought that a legislature was legitimate, it seems hard to maintain that it is the legislature (the body making fundamental policy decisions for a polity).

I suppose I am attracted to the speech act story because I am interested in foregrounding the role of the legislature in the legal process. Thinking about laws in isolation from the legislature risks obscuring the legislative authority that I want to highlight.

Maybe the question really is why do people obey laws. One explanation would be convention. But another explanation is respect for the legislature's authority. The speech act story is that legislating is a demand that people obey, done with the expectation that people will respect that demand.

A legislature passes laws, and that is the only way in which it speaks. Maybe I should have said "the passing of a law." I don't mean to question that the laws also themselves have semantic content.

Jesus. You think it can’t get any worse, then you read these stories. US citizens and legal residents illegally arrested and held for days. **Native Americans** getting detained and held for days because ICE agents are too stupid/racist to know about tribal IDs.

I think the steady drip is quite powerful in itself. It is becoming inescapable.

Laws are speech acts. Speech acts do what we expect them to do. If we do not expect laws to bind, then they will not. That is how the rule of law is eroding in our culture.

Every day brings new videos of horrific ICE violence. And there must be thousands of such episodes for every video that we see. We live in a fascist state.

Rick points out that "the U.S. two-party system, during unified government, makes it easier to overcome fragmentation than in Europe." The American disease is not multipartyism and unwieldy coalition government but a profusion of veto players that produces legislative gridlock and dysfunction.

This essay provides an excellent summary of Rick's important recent work on political fragmentation—which is undermining coherent and effective government across developed democracies. In PR systems, fragmentation occurs inter-party. In PV systems (like ours) fragmentation occurs intra-party.

A funny thing about the sociology of knowledge is that when the dominant view is completely wrong, it is often easier to persuasively advance a slightly-less-wrong view than the correct view. This leads people to advance wrong arguments for motivated reasons (e.g. that the UET is only partly right).

SCOTUS believes in the quantum presidency. Sometimes it is unitary and sometimes it is not. Its state of unitariness is indeterminate until observed (by SCOTUS)

Yes, apparently lower court judges are now supposed to read the justices' minds rather than apply either precedents or consistent rules.

This is particularly incredible after multiple justices admonished lower court judges for temporarily blocking other illegal firings.

The very same para seems to undercut the claim, by noting that it was a mistake for congressional Democrats to do what folks on Bluesky warned them not to do.

Finally, as someone who spends a fair amount of time talking with reporters about current events, I have noticed that, as a group, reporters are getting less and less interested in whether this or that Administration action is legal. Law has limited value as predictor of what this Administration will do. And with the Supreme Court so frequently overriding lower courts’ injunctions against the Administration’s lawlessness in minimally reasoned Shadow Docket orders, even many of the brightest and most capable reporters seem to feel little need to sort through statutes and caselaw. I do not share their skepticism, but persuading them that law matters is getting more and more difficult. That by itself is a fundamental change in our constitutional order.

@davidasuper.bsky.social has an interesting piece up on Balkinization, at the end of which he makes the point that because the administration is breaking the law so much of late, journalists are starting to be less interested in even reporting what the law is—

balkin.blogspot.com/2025/10/shut...

The fact Republicans are denying an elected member of Congress her seat is not getting enough attention.

Given these two observations, what is more puzzling is that there has been such an alignment of self-described (autocorrect amusingly suggested "self-deceived") originalists behind the UET. I suppose the simplest explanation is partisanship or short-term ideological goals.

The second source of puzzlement is that there is nothing inherently conservative about the UET, at least as a philosophical matter. Conservatives tend to support constraints on government. Emancipating the President from legal constraints does not seem inherently aligned with conservatism.

The first source of puzzlement is that this should be a technical, empirical question of what understanding does the evidence support. Rejecting the UET is simply where the evidence leads (as Nelson's essay explains).

I find the reactions to the Caleb Nelson piece really interesting. People seem surprised that an "originalist" would reject the unitary executive theory (UET). Is the root of the surprise that we just assume that originalism is a mere smokescreen for partisanship or political ideology?

Przeworski: "Backsliding is a stable 'intermediate' or 'hybrid' regime in which the government maintains the appearances of democracy, tolerates some opposition, and holds elections.... As I see it, Trump is not backsliding, he is taking steps to a full-fledged autocracy."

The endgame for all of this is constructing a military that will obey orders when ordered to fire on citizens. That's the throughline to half of what Trump is doing.

It is interesting, though, to say that a scheme giving the Senate a role in removals (as in Myers) is unconstitutional "under current constitutional doctrine." I think there is a strong case that the current doctrine is a modern innovation that is in tension with the original understanding.