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Amicus in Wilcox v. Trump on Presidential Removal and Unitary Executive Theorists’ Errors
No full textAs courts ask whether Free Enterprise and Seila Law call into question Humphrey’s Executor and independent officers or agencies, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory of removal.
Since the Supreme Court decided Seila Law, a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That evidence has not withstood scrutiny. For example, unitary theorists have been unable to address core critiques of their interpretations of sources from the First Congress. They cannot identify a single sentence from the voluminous Ratification Debates suggesting Article II “executive power” implied removal. Instead, they have repeated serious errors about English sources, the Ratification Debates, and the First Congress, including misquotations of Blackstone, repeatedly taking sources out of context, and what appears to be at least one grossly misleading statement (if not a demonstrably false statement) about the Ratification Debates.
Every scholar makes mistakes. Indeed, this author lives in a glass house. But in an Amicus role, serving as a friend to the Court, this brief is an originalist scholar’s defense of originalism against unitary theorists’ ahistorical, anti-originalist errors.
These repeated errors are red flags that the theorists cannot find any real historical support for their claims, and they are yellow flags to slow down and proceed with caution. Given the explicitly limited holdings of Seila Law and Free Enterprise (see, e.g., footnote 10), the Supreme Court has merely distinguished novel agency designs from Humphrey’s and created narrow exceptions. The evidence of original public meaning is so unclear and contradictory that the Supreme Court would not have a sufficient originalist basis to go any further.
Until the new evidence and these historical errors have been reviewed by the Supreme Court, lower courts should assume that Humphrey’s Executor is – and will remain -- good law and controlling precedent
Presidential Removal as Article I, Not Article II
No full textAs a matter of original public meaning, Article I’s Necessary and Proper clause is the starting point for both Congress’s power to create offices and the limits on that power.
We believe that many legal scholars have demonstrated that, as a matter of original public meaning, the term “executive power” did not imply a presidential removal power, and Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a basis for limiting congressional power that is more historically grounded in original public meaning and in early practice. Tenure protections and agency structures must be necessary and proper for executing federal power, meaning that they must be suitable means for pursuing proper ends. The debates and statutes in the First Congress reflect an analysis of means and ends in creating a small number of fully independent and mixed independent offices for specific complex tasks, often related to public debt and the public fisc.
The original public meaning of the Take Care clause does not support an indefeasible presidential removal power, but it provides a similar principle for distinguishing between valid and invalid congressional conditions, also consistent with all the removal precedents and with history and tradition. Our interpretation of the Executive Vesting Clause does not rely on the Empty Vessel hypothesis, and it is consistent with the Bundle of Powers hypothesis. One can have a non-empty-vessel conception of the Article II Vesting Clause – and even believe that the vessel includes a presumptive removal power – and still conclude that Congress has some authority to overcome that presumption by statute.
These interpretations of Article I and Article II also offer a more originalist, balanced approach to the separation of powers. With complex questions about the Federal Reserve looming, a stretching of Article II would lead to a series of judicial problems and interventions. The Necessary and Proper Clause is a stronger originalist basis to replace Humphrey’s Executor, to limit congressional power, and to confirm narrow traditional exceptions for the FTC and the Federal Reserve
Replacement Opening Brief for Plaintiff-Appellant Mona Salcida Murillo
No full textWhen Mona Murillo tried to assert her rights to be free from sex discrimination and physical threats from prison officials at Salinas Valley State Prison (SVSP), those officials conspired to punish her and obstruct her efforts to remedy these harms. Murillo is a transgender woman who, while incarcerated at SVSP, repeatedly complained about unsafe working conditions (created and maintained because of her sex) and sex-based harassment perpetrated by Defendants Lopez, Garcia, Lepe, and Castillo. In return, Murillo was subjected to threats, fabricated disciplinary charges, and deliberate efforts to deny her access to necessary work gear by these same Defendants and other prison officials, Defendants Williams, Foss, and Sullivan.
To take just one example of the cycle of discrimination and retaliation: When Murillo requested safety equipment for her kitchen assignment from the prison laundry supervisors Garcia and Lopez, Garcia yelled at her to “get away from the window fag.” Lopez then pressed an alarm that led to Murillo being slammed to the ground and confined for nineteen hours simply because she had promised to complain about the laundry supervisors’ sex discrimination.
Later, Castillo and Lepe (Murillo’s supervisors at work in the kitchen) joined the campaign to prevent Murillo from accessing safety equipment. When Murillo was sent back to the laundry window to retrieve her prison-designated work boots, Lopez laughed, closed the window, and told her: “I will never have boots for you or fags like you.” Wardens Sullivan and Foss knew about this sex-based and retaliatory denial but sat idly by. Forced to work without boots, Murillo fell on the job in the kitchen, sustaining severe back and knee injuries and partial facial paralysis. Murillo is now unable to walk unassisted.
Murillo sued Defendants under the First, Eighth, and Fourteenth Amendments, naming several correctional officers and supervisors. The district court, however, dismissed most Defendants at the screening stage, holding that they were misjoined, and later granted summary judgment on the remaining claims for failure to exhaust under the Prison Litigation Reform Act (PLRA).
These decisions are wrong. As for the purported misjoinder, Murillo’s claims do not reflect isolated episodes, but, rather, are deeply intertwined, involving conspiring Defendants, shared unlawful motives, and factually similar adverse actions. As to PLRA exhaustion, Murillo managed to exhaust grievances sufficient to alert prison officials to the laundry supervisors’ and Williams’ misconduct but faced dead ends in seeking remedies against Lepe, Castillo, Sullivan, and Foss because of improper rejections of her grievances and threats including that she could have her property taken, be stabbed, or placed in solitary confinement for exercising her rights to redress. This Court should reverse
Originalisms\u27 Indifferences?: Friendly Amendments to Sherif Girgis\u27s Originalism\u27s Difference?
No full textSherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I believe we are identifying plural originalisms and even a fracturing of originalism into conflicting methods. I use “indifferences” as a riff on Girgis’s “differences” in two senses: a kind of “non-difference” or indifference to differences and, more specifically, the growing problem that too many self-proclaimed originalists are indifferent to contrary evidence.I follow Girgis’s apt use of a question mark with some of my own questions about his three differences: For example, is constraint a higher priority than other values? Are “intensity” and “avoiding ostentatious moral reasoning” more noise than signal? Do today’s originalists sometimes show more “intensity” in their research and avoid “ostentatious moral reasoning” because they are using historical sources as cover for the real underlying forces—their moral or ideological commitments?This Essay turns to some of Girgis’s own examples of problematic originalism to further illustrate the breakdown of constraint and even a troubling sign of anti-originalism (presidential immunity in Trump v. United States). Finally, this reply suggests how Girgis’s approach is similar to modest “lexical” or “pluralist” originalism with appropriate burdens of proof to avoid originalist overreach. Girgis’s wise and open-minded questions might help save originalism from itself
Presuming Justice for Temp Workers
No full textWorkers need to know who their employers are. Who is responsible for remedying workplace dangers? Who can they sue for restitution when they are discriminated against at work, or do not get paid for all of the hours they work? Temp agency contracts complicate these seemingly simple questions. In workers’ rights cases involving “temps,” courts and administrative agencies often engage in protracted, resource-intensive joint employer inquiries to decide whether the temp agency clients share in employer obligations and liabilities with the agencies. This is the case even when the temp agency client has the key markers of an “employer,” such as directly supervising all of the activities of a temp worker on a daily basis. This Article analyzes a first-of-its-kind dataset of thirty-two contracts between leading temp agencies and their clients in blue-collar work. The analysis shows that temp agency contracts often give clients enough control over temporary workers to give rise to employer status and responsibilities under workers’ rights laws. This empirical finding sets the foundation for courts and administrative agencies using contract terms to trigger a legal presumption that a client of a temp agency is a joint employer of the temporary workers provided to them for statutory and collective bargaining purposes. Through its unique empirical lens, this Article offers and justifies a joint employer presumption. This intervention is a practical, necessary correction that will expose meritless attempts to contract out of employer responsibilities
Mobility and Power in Temp Work
No full textLabor mobility is an underdiscussed determinant of temp worker power. Drawing on original interviews with professional and blue-collar workers who work as and alongside temps, this Article shows how businesses use staffing agencies to restrict the labor mobility of contingent workers. Staffing agencies limit worker mobility by imposing user- and worker-side contractual restraints while misrepresenting themselves to temp workers as their sole employer. They also exploit state-imposed mobility limitations by recruiting foreign nationals and people leaving incarceration and channeling them into their most precarious work. This enables clients to dismantle internal labor markets and to fill staffing shortages without raising the wages of permanent employees. Used this way, staffing agencies can magnify gender, racial, and economic inequality, drive down workplace standards, and trap vulnerable workers in low-wage, dangerous work.
Centering labor mobility in temp work has important doctrinal and practical payoffs. Temp worker mobility is often concerted in ways that are protected by the National Labor Relations Act and protected from staffing agency misrepresentations by consumer protection laws. Improving work standards where contingent work is common will require removing unnecessary state-imposed mobility limitations that trap vulnerable workers in precarious work. Collaborative workforce development programs, finally, can mitigate the harmful effects of staffing agencies in these sectors by improving access to training and direct hiring across the perm-temp divide
De Minimis Copying: An Empirical Study
No full textIn the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying “too little” and how is that evaluated— but also asks the deeper, unresolved question about the harm copyright law aims to prevent and the benefits towards which it aims. In doing so, it proposes new rules for the de minimis defense designed to revive its appropriate function and filter out unmeritorious and inefficient copyright cases.
The Article begins with the hypothesis that, in the digital era, the copyright de minimis defense should be more relevant and more successful: as much as there is more copying on the internet, most of it is trivial. The data shows the first to be true (rise in relevance) but not necessarily the second (litigation success rates). Indeed, invocation of the de minimis defense has grown, but not its success in litigation, suggesting judicial skepticism toward the idea of trivial copying. That skepticism bodes poorly for the information age in which copying small bits of expression (or whole works momentarily) is essential for communication. The Article’s deep dive into the de minimis defense further explains how its evolution affects other aspects of copyright law, opening opportunities and exposing pitfalls in the context of strategic litigation. In the end, freedom of expression and the progress of science are at stake, and revitalization of the de minimis doctrine is a key to preserving these fundamental tenets of U.S. copyright law
Green Corporate Governance
Full text linkThis chapter explores the rise and future of “green” corporate governance, including how concerns about the changing climate are shaping long-extant debates in corporate law.This area is difficult to survey in one short chapter, both because it has exploded in importance, and because it intersects in its own way with many of the topics discussed in the above chapters. Compliance, directors’ duties, corporate purpose, corporate groups, and investor stewardship, are just a few of the issues bound up in the rapid and recent shift toward thinking about climate change and its intersection with corporate governance.
The rise of Environmental Social and Governance (ESG) investing this past decade has been impossible to miss, especially once the practice became a political target for the conservative right in America.This chapter will discuss issues related to climate change and corporate governance, which overlap with “ESG” concerns (particularly, of course, the ‘E’), but are not necessarily synonymous with them. Though “greening” corporate governance is an all-encompassing strategy, this chapter will focus on the following three areas of recent development: first, climate-related investing, including shareholder stewardship; second, regulatory changes, and third, board duties in the face of climate risk
Petition for Initial Hearing En Banc, United States v. Michael Norwood
Full text linkThis appeal involves a question of exceptional importance because it implicates binding circuit precedent that directly conflicts with the United States Sentencing Commission’s exercise of statutorily delegated authority. Congress expressly charged the Commission with promulgating policy statements and guidelines establishing, among other things, a framework governing compassionate release of federal prisoners. 28 U.S.C. § 994(a), (t). So, when Congress provided that district courts could consider a sentence reduction if warranted by “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A), Congress did not define that phrase. Instead, it directed the Commission to do so. 28 U.S.C. § 994(t).
The Commission did as Congress instructed. In 2023, it issued a binding policy statement clarifying that, in specified circumstances, nonretroactive changes in sentencing law may constitute an extraordinary and compelling reason for a sentence reduction. See U.S.S.G. § 1B1.13(b)(6).
But a panel of this Court held that the Commission lacked the authority to promulgate this policy statement. See United States v. Rutherford, 120 F.4th 360, 374-76 (3d Cir. 2024). Rutherford was wrong to invalidate the Commission’s exercise of its expressly delegated authority, and only the en banc court can right that wrong. Under Rutherford, a nonretroactive change in sentencing law can never be an extraordinary and compelling reason to grant compassionate release. As long as Rutherford remains binding, Appellant Michael Norwood’s request for compassionate release is foreclosed. But if this Circuit follows the Commission’s binding policy statement, a district court would have discretion to consider Norwood’s request. The Court should grant en banc review and overrule Rutherford
Health insurance subsidy standoff pits affordable care for millions against federal budget constraints
No full textAs the federal government entered a shutdown on Oct. 1, 2025, competing narratives quickly emerged about the cause.
Some Republican lawmakers objected to Democrats’ push to include an extension of the expanded Affordable Care Act premium subsidies in a short-term funding bill and cited concerns about long-term spending. Democratic leaders countered that the subsidies are not a new demand but rather the continuation of a program that has helped keep record numbers of Americans insured since the pandemic – and therefore that the issue could not be delayed.
The result is a standoff that blends fiscal and policy disagreements – a hallmark of contemporary budget politics.
As experts in health law, we see this issue as simple but consequential from a legal standpoint. Congress authorized the enhanced subsidies in 2021, originally to cushion the economic fallout from COVID-19 for families, and extended them through 2025 in the Inflation Reduction Act.
Without new legislation, the subsidies revert to pre-2021 levels on Jan. 1, 2026 – which would lead to a jump in the cost of health insurance and would make coverage unaffordable for millions of Americans