Brandon Johnson

My thanks to @unlcollegeoflaw.bsky.social for supporting the Big Ten Early Career Law Scholars Workshop. And my thanks to all of the brilliant scholars from across the Big Ten community who spent the past two days sharing their time, work, and insights.

186. When Can States Prosecute Federal Officers? Stephen Miller claims that ICE officers have "immunity" for anything they do while enforcing immigration law. Even as an argument about *state* criminal prosecutions, that claim is overstated at best.

Today's "One First" explains why Stephen Miller is wrong that ICE officers have "federal immunity" from prosecution for all actions they take in their official duties, and that anyone attempting to prosecute them is committing a felony.

Supremacy Clause immunity is a thing, but it's *not* absolute:

White House may discuss mid-decade redistricting with Nebraska lawmakers this week • Nebraska Examiner The Trump administration is hosting a state leadership conference, but political aides could discuss redistricting, too.

Increasingly polarized maneuvers like this were always going to be the result of Rucho shutting the federal courthouse doors to partisan gerrymandering claims.

nebraskaexaminer.com/2025/09/08/w...

My essay for the @washulaw.bsky.social symposium, “History, Tradition, and the Franchise,” is now available for download. It highlights the modern Court’s reliance on history & tradition, and cautions against this approach in voting rights, equal protection claims

wustllawreview.org/2025/09/02/h...

Come join us at @unlcollegeoflaw.bsky.social for an early career scholars workshop this October!! Open to legal educators at Big Ten institutions with less than ten years of teaching experience! Papers at all stages welcome, and there’s a $500 travel stipend available!

law.unl.edu/big-ten-earl...

I think we should expect them to attempt to carry it out regardless of what the courts say about it and then be pleasantly surprised if they do not

FWIW, “Concentration of Powers” (forthcoming UC Davis Law Review) was a “top download” this week in SSRN’s “Bureaucratic Relations” eJournal. You can access the paper here: papers.ssrn.com/sol3/papers....

Johnson on Judicial Supremacy, Separation of Powers, and Administrative Law, buff.ly/Sbvv3rb - Brandon Johnson (University of Nebraska College of Law) has posted Concentration of Powers on SSRN.

This is 100% right - though I think it's deeper than that. People don't necessarily think it's a person who will step in but that the system just does things automatically to stop bad things.

But it doesn't work that way. Laws, courts, the Constitution -- nothing happens automatically.

Is this what they’re using that new Grok contract for? This looks like some asked a racist AI to convert Nazi propaganda about the “Volksgemeinschaft” into pioneer propaganda. This is so stupid it would be laughable if it wasn’t at the same time, deeply terrifying and a harbinger of worse to come.

Reupping this for interested folks who may have missed it yesterday!

“Concentration of Powers” (forthcoming in @ucdavislaw.bsky.social Law Review), which analyzes judicial control of agencies, is now available on @ssrn.bsky.social.

I’m working on substantive edits (especially to Part IV) so any and all comments are welcome!

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

Fortunately we know from history that there’s nothing alarming or untoward about referring to your political enemies as vermin or insects.

We’re at the point where clergy is helping to hide people from a masked, militarized state police. Anyone who has even a passing familiarity with history, knows this state of affairs has never ended well.

If we as a country survive this descent into authoritarian madness, we will need a massively robust reckoning and reconciliation process to come to terms with the horrors our government will have inflicted on our most vulnerable. This is shameful, this is heartbreaking.

I still hit that point with every paper I write. Hang in there!

This was always going to be the end result of villainizing agencies, and placing political loyalists in leadership positions, who not only have no experience, but also actively disdain the agency they are supporting be leading. I fear this is going to become an all too familiar pattern.

“Don’t politicize tragedy,” is now a stock response. But there’s a difference between politicizing something, and asking important questions about the policies that either allowed for, contributed to, or made the tragedy more likely. Failing to address those policies will only lead to more tragedy.

I don't mean to sound hysterical but there are some pretty clear historical examples of "force the urban-dwellers to the farms," and none of them are great.

This feels like a whole new level unlocked. Well done!

The crisis, from the immigration raids that sparked the protests to the militarized response that tried to put the protests down, was almost entirely of Mr. Miller's making. And it served as a testament to the remarkable position he now occupies in Mr. Trump's Washington. Kristi Noem, the homeland security secretary, who reportedly accompanied Mr. Miller on his visit to ICE headquarters, seems to defer to him. "It's really Stephen running D.H.S.," a Trump adviser said. The attorney general, Pam Bondi, is so focused on preparing for and appearing on Fox News that she has essentially ceded control of the Department of Justice to Mr. Miller, making him, according to the conservative legal scholar Edward Whelan, "the de facto attorney general." And in a White House where the chief of staff, Susie Wiles, is not well versed or terribly interested in policy - "She's producing a reality TV show every day," another Trump adviser said, "and it's pretty amazing, right?" - Mr. Miller is typically

One reason Stephen Miller is so strong is that much of the rest of the Trump Cabinet is so weak

Number 3 here is hugely important, and not unique to the U.S. system. Even in the German courts of the Third Reich, which were notoriously complicit in the horrors which took place, there were *some* lower court rulings that pushed back on the regime, but these were always reversed by higher courts.

Harvard sociologist/polisci Theda Skocpol explains how the vast expansion of ICE in BBB may be Trump's secret weapon to overcome the barriers of federalism and complete his autocratic takeover of the American state. (History from Germany & Hungary in 20s/30s.) talkingpointsmemo.com/edblog/criti...

Coming soon: “The Originalist Case for Why the President Actually Does Have a Dispensation Power, which We Totally Knew All Along, but Didn’t Want to Say until We had A President We Trusted to Use It ‘Correctly.’”

The leadership of our co-chairs @judgeluttig.bsky.social and Dean Erwin Chemerinsky has been extraordinary in gathering us for this effort.

The Supreme Court’s Majority Is Playing Noah Feldman Like a Fiddle Death, taxes, and liberal legal pundits tying themselves into knots to explain why Chief Justice John Roberts is the hero they imagine.

I mean this sincerely: If you are a liberal Supreme Court pundit, and after *this* term you are still dreaming up fantasyland narratives to explain how John Roberts is going to heroically save democracy from Trump, it is time to hang up your keyboard and never post again

Again we see basic tenets of Fascism defining the administration. This is full-scale adoption of Mussolini’s slogan “Mussolini ha sempre ragione” (“Mussolini is always right”). The cult of the infallible leader is always central to authoritarian rule.

@evanbernick.bsky.social’s thread on The Dual State highlights the important role the normative state played in “keeping up appearances.”

An additional point here: the normative state also blessed the illegality of the prerogative state, advancing the regime’s agenda. We are seeing this in SCOTUS.

I am running out of words to describe how every single action of this administration comes straight from authoritarian playbooks. Installing participants in a failed coup in what is essentially a political crimes division of the DoJ is just another demoralizing example.

At a time when multi-billion dollar corporations are sacrificing journalistic integrity to appease an authoritarian regime, it is encouraging to see students engaging in actual journalism.