What I Wrote in 2014

 

 

Cassady takes the position that the [Constitution’s] disqualification penalty bars disqualified former Presidents, Vice Presidents, and officers of the United States from subsequent election or re-election to the presidency and vice presidency. In this Article, I take the contrary position: disqualified former Presidents, Vice Presidents, and officers of the United States are not barred from any constitutionally mandated elected positions, state or federal. Rather, disqualified former Presidents, Vice Presidents, and officers of the United States are precluded from holding federal appointed or statutory offices.

Given the infrequency by which the Senate [in impeachment proceedings] invokes the disqualification penalty, one might very well ask: “Why is this issue important?” The answer, primarily, is for two reasons. First, just because disqualification has been rare in the past does not mean that it might not become more widely used in changed future circumstances. One thing we know about the future (if only from past futures) is that it might be very different from what we have lived and from what we currently expect. Because the effect of disqualification on candidates and voters is (ostensibly) permanent and (according to Cassady and others) profound, in regard to limiting their participatory and voting rights, we all might be better off having a frank discussion now, while we are behind a common Rawlsian veil of ignorance, before the effects of partisanship and the demands for speed under the pressure of litigation blind us from the permanent interests of our political community.

Second, the Disqualification Clause’s “Office . . . under the United States” language and very similar language appear within many other provisions of the Constitution. So, if our originalist investigation teaches us the scope of the Disqualification Clause’s specific “Office . . . under the United States” language, what we learn will (or, at least, may) have much to say regarding any number of other constitutional provisions (using that language). Our investigation is likely to have a global or intratextual impact across our understanding of the Constitution as a whole. In other words, we can use the Disqualification Clause as a wedge to pry open a door to constitutional meaning and meanings. The combined stakes here are reasonably high.

From: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33(1) Quinnipiac L. Rev. 59 (2014), <ssrn.com/abstract=2484377>.

 

Seth Barrett Tillman, ‘What I Wrote in 2014,’ New Reform Club (Nov. 4, 2025, 4:22 AM), <https://reformclub.blogspot.com/2025/11/what-i-wrote-in-2014.html>;

 

Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77 (Updated)

 

 

 

Extract from Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (posted: Oct. 24, 2025)) (manuscript at 18 n.46) (bold added), <https://ssrn.com/abstract=5648310>; id., 53 Pepp. L. Rev. 695, 720 n.50 (2026) (bold added): 

 

[I]ronically, the removal-power issue is one on which Hamilton, writing as Publius in The Federalist No. 77, can be read as suggesting, sloppily, that the Senate’s role in confirming appointments operated to limit removals as well. The Federalist No. 77, supra note 4, at 432 [(Isaac Kramnick ed. 1987)] (Alexander Hamilton) (“The consent of that body would be necessary to displace as well as to appoint.”). While it is possible (with some straining) to read this line, in the context of the overall passage, as intended to explain that the power to withhold consent to a new, replacement to office would operate as an indirect constraint on the President’s prerogative to remove officers, Hamilton himself reportedly acknowledged error, or at least imprecision, on this point at the time of the congressional debates on the State Department bill over presidential removal language.

Extract from 3 Joseph Story, Commentaries on the Constitution of the United States 390, §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) (emphasis added):

§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president “shall nominate, and, by and with the advice and consent of the senate, appoint,” &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself.

§ 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . .

You can find Story’s interpretation of Hamilton’s Federalist No. 77 quoted favorably in the reports of four courts of record: McElrath v. United States, 12 Ct. Cl. 201, 214 (Ct. Claims 1876) (Loring, J.); U.S. ex rel. Bigler v. Avery, Case No. 14,481, 24 F. Cas. 902, 905 (C.C. N.D. Calif. 1867) (Deady, J.); Nicholson v. Thompson, 5 Rob. (LA) 383, 393 (La. 1843) (quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill. 79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state constitutional amendment. The latter 1839 decision was published roughly contemporaneously with Story’s Commentaries. You can also find Story’s position quoted in congressional debate. See, e.g., Congressional Record / Senate 2492, 2493 (Mar. 18, 1886) (Spooner, Senator); see also, e.g., Congressional Globe / Senate (Supp.) 251, 259 (Apr. 22, 1868) (Logan, House Impeachment Manager). See generally Hathi Trust for other congressional sources, and other sources generally.

Likewise, you can find this passage from Story quoted in post-bellum sources by respected commentators and authors. See, e.g., Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577, 596–97 (1980) (citing Story’s Commentaries); see also, e.g., George W. Paschal, The Constitution of the United States / Defined and Carefully Annotated 178, § 185 (D.C., W.H. & O.H. Morrison 1868) (“The removal takes place in virtue of the new appointment, by mere of operation of law.” (citing Federalist No. 77)). 

You can even find two contemporaneous reviews of Story’s Commentaries. See Story’s Constitutional Law, 38 North American Review 63 (Boston, 1834); Judge Story’s Commentaries, 14(28) American Quarterly Review 327, 364 (Philadelphia, 1833) (expressly quoting Story’s as to “great earnestness”). 

See generally, e.g., Seila Law LLC v. CFPB, 591 U.S. 197, 261, 270 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (“In Federalist No. 77, Hamilton presumed that under the new Constitution ‘[t]he consent of [the Senate] would be necessary to displace as well as to appoint’ officers of the United States. He thought that scheme would promote ‘steady administration’: ‘Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained’ from substituting ‘a person more agreeable to him.’ ” (quoting Federalist No. 77) (bold added)); Reply Brief for the (United States) Respondent at 10, Seila Law LLC v. CFPB, Sup. Ct. No. 19-7 (U.S. Feb. 14, 2020) (Francisco, Solicitor General), 2020 WL 774433 (“In The Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing an officer would of course require Senate confirmation of the replacement—which is all Hamilton may have meant.” (citing Tillman on Federalist No. 77)); Susan Low Bloch, The Early Role of the Attorney General in our Constitutional Scheme, 1989 Duke L.J. 561, 573 n.40 (1989) (using “remove”-language and “replace”-language in connection with discussion on Federalist No. 77); Jonathan L. Entin, The Removal Power and the Federal Deficit, 75 Ky. L.J. 699, 714 (1986–1987) (using “replace”-language in connection with discussion of Federalist No. 77); Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 30 n.164 (2023), <https://ssrn.com/abstract=3941605>; Aaron L. Nielson & Christopher J. Walker, The Early Years of Congress’s Anti-Removal Power, 63 Am. J. Legal Hist. 219, 224 n.19 (2023) (peer review), <https://ssrn.com/abstract=4361394>; Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010), <https://ssrn.com/abstract=1331664>; Michael Stern, ‘Tillman and Bailey on Federalist No. 77,’ Point of Order: A Discussion of Congressional Legal Issues (Oct. 7, 2009, 19:34 PM), <https://www.pointoforder.com/2009/10/07/tillman-and-bailey-on-federalist-no-77/>. Compare Lev Menand, ‘Fact Checking Oral Argument in [Trump v.] Slaughter,’ Notice & Comment (Dec. 10, 2025), <https://www.yalejreg.com/nc/fact-checking-oral-argument-in-slaughter-by-lev-menand/> (“The English default rule—against which the Constitution was written—was a symmetry rule: offices without tenure cease when the appointing power makes a new appointment and therefore the power to appoint entails the power to remove. This is what Alexander Hamilton understood in the Federalist No. 77 ….” (first emphasis in the original, second emphasis added)), with Seth Barrett Tillman, ‘Displace as well as to Appoint,’ New Reform Club (Dec. 17, 2025, 15:54 PM), <https://reformclub.blogspot.com/2025/12/displace-as-well-as-to-appoint.html>. 

But see generally J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010, at 221 n.72, 225 n.41 (2013); Ray Raphael, Constitutional Myths: What We Get Wrong and How to Get It Right 277 n.36 (2013) (“Tillman tries to untangle the puzzle by making a purely legalistic distinction between the words ‘displace’ (Hamilton’s term) and ‘removal’ (the term used in the congressional debates).”); Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol’y 169 (2010), <http://ssrn.com/abstract=1473276>; Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 238 n.55 (2023) (“Let’s be plain: What Tillman [or Story?] ultimately asks us to believe is far less plausible than what he asks us not to believe, which is the long and short of it.”). Compare Joshua C. Macey & Brian M. Richardson, Checks, Not Balances, 101 Tex. L. Rev. 89, 143 n.287 (2022) (characterizing Hamilton’s “displace as well as ... appoint” language in Federalist No. 77 as an “equivocation”), with Joshua C. Macey & Brian M. Richardson, Structural Indeterminacy and the Separation of Powers, 113 Calif. L. Rev. 1251, 1294 n.225 (2025) (“Joseph Story’s Commentaries interpreted Federalist 77’s reference to ‘dismissal’ to refer plainly to removal.”). 

What Professor Paulsen calls a “strain[ed]” reading was Joseph Story’s reading of Federalist No. 77. I see no evidence of any antebellum commentator or other source, or even any pre-21^st century source, squarely contesting Story on this point. Perhaps, Story’s reading was the standard understanding of Hamilton’s Federalist No. 77, and it is Professor Paulsen’s understanding of Federalist No. 77 that is “strain[ed]”?

I suppose the ghost of Hamilton should be thankful. In 2024, Professor Paulsen characterized Chief Justice Chase’s Griffin’s Case[1] decision as “bonkers”; here by contrast, Hamilton’s essay (Federalist No. 77) is only characterized, by Professor Paulsen, as “slopp[y].” William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605, 654 (2024) (using “bonkers” language), <https://scholarship.law.upenn.edu/penn_law_review/vol172/iss3/1/>; Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. 695, 720 n.50 (2026) (manuscript at 18 n.46) (using “slopp[y]” language), <https://ssrn.com/abstract=5648310>.

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Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States [24 October 1800]: (“But the truth most probably is, that the measure was a mere precaution to bring under frequent review the propriety of continuing a Minister at a particular Court, and to facilitate the removal of a disagreeable one, without the harshness of formally displacing him.”);

Alexander Hamilton to the Electors of the State of New York [7 April 1789] (“It has been said, that Judge Yates is only made use of on account of his popularity, as an instrument to displace Governor Clinton; in order that at a future election some one of the great families may be introduced.”);

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Seth Barrett Tillman, ‘Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77,’ New Reform Club (Updated Dec. 18, 2025) (Oct. 30, 2025, 5:22 AM), <https://reformclub.blogspot.com/2025/10/strained-readings-of-constitution-and.html>.

For another commentator on this and related issues, see: David M. Driesen, Does a Removal Power Exist? Joseph Story and Selective Living Originalism, 39 Const. Comm. 1, 3 n.9, 26 & n.125 (2024) (peer review), <https://ssrn.com/abstract=4541820>; David M. Driesen, Toward A Duty-Based Theory of Executive Power, 78 Fordham L. Rev. 71, 102 n.176 (2009), <https://ir.lawnet.fordham.edu/flr/vol78/iss1/13/>. 

[1] Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, C.J.). 

The Appeal: People of the State of New York v. Trump

[A]nother thing that one has to ask is, “What is the interest of justice here that Alvin Bragg, the Manhattan District Attorney, is really serving at this point?” No matter what happens at this point, Trump remains president. And the Appellate Division can’t increase the sentence. So at best, the only thing that Bragg is defending is that Trump retains the title of felon. But at worst, he’s spending a tremendous amount of judicial resources and his own office’s resources to defend this decision by Judge Merchan. 

What legitimate purpose is served by the District Attorney (“DA”) Bragg in defending the sentence and conviction below? The traditional purposes served by the criminal law include: deterrence—general and specific, retribution, restitution, and rehabilitation. I find it difficult to see how any of these traditional purposes are meaningfully served by the DA’s defending Merchan’s decision below. I suppose that the DA’s real purpose might be fairly described as some sort of institutional expressivism—which is easy to do when spending other people’s (that is, the taxpayers’) money. But if that is Bragg’s purpose, then that simply feeds into the narrative that violations of the criminal law are not now (and never were) the core of the prosecution against Trump; rather, it was always just politics. 

The above is from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Appeal: People of the State of New York v. Trump,’ New Reform Club (Oct. 29, 2025, 5:43 AM), <https://reformclub.blogspot.com/2025/10/the-appeal-people-of-state-of-new-york.html>;

A Short Note on IRELAND’s Presidential Election

 

See todays (FRIDAY’s) image on GOOGLE’s front page.

Today is IRELAND’s presidential election. Three candidates on the ballot paper, but one is not running an active campaign. ... So, it is really a two-horse race—two women—an independent (formerly LABOUR) and a candidate from FG (one of the two parties in the governing FF-FG coalition). The independent is the favourite according to the bookies. Odds on the FG candidate are around 10-to-1.

The leading opposition party—SINN FEIN—did not field its own candidate. In fact, SF is supporting the independent. And the smaller opposition parties all (or nearly all) also support the independent. The third candidate, the one on the ballot paper but who is not actively running a campaign, was nominated by FF—one of the two parties in the governing coalition. My understanding is that if the FF candidate does not clear 12%, then FF will sustain considerable negative financial consequences—I think a loss of its deposit. Of course, FF also sunk its own party funds into the candidate’s election prior to the candidate’s decision to stop active campaigning.

Throughout most of post-independence Irish history, FF and FG competed with one another. Indeed, immediately after independence, the two parties’ antecedents fought on opposite sides in a civil war. Lately they have become coalition partners—the Irish uniparty.

Seth Barrett Tillman, ‘A Short Note on IRELAND’s Presidential Election,’ New Reform Club (Oct. 24, 2025, 6:51 AM), <https://reformclub.blogspot.com/2025/10/a-short-note-on-irelands-presidential.html>; 

By-Election in the U.K.

 

Welsh By-Election for Senedd (the devolved Welsh parliament)—35% swing against LABOUR Party , <https://news.sky.com/story/plaid-cymru-win-caerphilly-by-election-in-humiliation-for-labour-13455893>. 

The seat was taken by the Welsh regional party (nominally seeking independence from the UK) … with 15,961 votes (47%). This is a first-past-the-post or plurality victory. Nigel Farage’s Reform UK came in second … with 12,113 votes (36%). And Labour came in third … with 3,713 votes (11%). Conservatives crash to less than 1,000 votes (2%). Both Conservatives and the Liberal Democrats lost their deposit.

Seth Barrett Tillman, ‘By-Election in the U.K.,’ New Reform Club (Oct. 24, 2025, 6:17 AM), <https://reformclub.blogspot.com/2025/10/by-election-in-uk.html>; 

A Letter to AG Paxton and Others

Attn: Ken Paxton, Attorney General of Texas

Dear AG Paxton,

I am a U.S. citizen living abroad. I teach law in a foreign law school. I grew up in New York, and I have practiced law in the District of Columbia and Delaware.

The U.S. State with the greatest number of federal judicial vacancies is Texas—with TEN federal district court vacancies. Texas has TEN Article III vacancies. The rest of the country has collectively 50 vacancies. 1-in-6 of the vacancies are in Texas! As of October 21, 2025, there have been no nominations to ANY of the TEN Article III vacancies in Texas. Texas voted for Trump in 2016, 2020, and 2024. Texas has continuously sent two Republicans to the U.S. Senate. And Texas’ U.S. House delegation strongly leans majority Republican: circa 2-to-1.

I have written both Texas’ two U.S. senators on this issue. I would think that your office and your Texas constituents should raise (if not press) this issue with the administration.

Sincerely,

Seth

Seth Barrett Tillman, ‘A Letter to AG Paxton and Others,’ New Reform Club (Oct. 22, 2025, 4:02 AM), <https://reformclub.blogspot.com/2025/10/a-letter-to-ag-paxton-and-others.html>; 

A 1970 Judicial Decision

A 1970 judicial decision—Corbett v Corbett (otherwise Ashley) [1970] 2 All English Reports 33 (probate, divorce, and admiralty division) (Ormrod J):

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word “woman” in the context of a marriage, for I am not concerned to determine the “legal sex” of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, i.e., the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The real difficulties, of course, will occur if these three criteria are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to me to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two. This problem and, in particular, the question of the effect of surgical operations in such cases of physical inter-sex, must be left until it comes for decision. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth. It follows that the so-called marriage of September 10, 1963, is void.

I must now return briefly to counsel for the respondent’s submissions. If the law were to recognise the “assignment” of the respondent to the female sex, the question which would have to be answered is, what was the respondent’s sex immediately before the operation? If the answer is that it depends on “assignment,” then if the decision at that time was female, the respondent would be a female with male sex organs and no female ones. If the “assignment” to the female sex is made after the operation, then the operation has changed the sex. From this it would follow that if a 50 year old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of “marrying” a man. The results would be nothing if not bizzare. I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender.

Seth Barrett Tillman, ‘A 1970 Judicial Decision,’ New Reform Club (Oct. 12, 2025, 9:41 AM), <https://reformclub.blogspot.com/2025/10/a-1971-judicial-decision.html>;

Joel Klein’s World Class Kinsleyesque Gaffe

 

 

          Joel Klein published a reflection on his experience clerking for Judge Bazelon (liberal) and Justice Powell (conservative). It was published as: ‘Ancient Wisdom: How a Supreme Court Justice Changed My Life,’ The Free Press (Sept. 28, 2025). Klein’s reflection is all the talk—even on academic listservs.

          Klein reports:

Time and again, [Justice Powell] would say things I found to be unexpectedly insightful and moving. I can vividly remember him once returning to the office after an oral argument and saying to me, “I just had an amazing experience with Thurgood,” referring to Thurgood Marshall, the only black justice on the Supreme Court at the time. “In the middle of the tax case we were hearing,” Powell continued, “Thurgood leaned over and said, ‘Lewis, I don’t know the first thing about a case like this, and I have no idea what the lawyers are talking about. I’m going to give you my vote.’ After I thanked him,” Powell went on, “Thurgood then said, ‘And, you know, Lewis, you don’t know the first thing about civil rights, so, when those cases come before us, you should give me your vote.’ ” Powell looked at me and added, “You know, Joel, I think he might be right.”

How, precisely, is this “insightful”? Or “moving”? Here, Klein is recounting how one judge solicited another judge’s vote in naked vote trading … across unrelated cases … with different parties. I am not going to say that such vote trading violates positive law or that such conduct has led to specific sanctions in the past in those rare circumstances where it has been ferreted out. But it seems to me, and it is just my opinion, that judicial vote trading, particularly, across unrelated cases, with unrelated parties, violates due process norms and the aspirational goal of transparent justice. What is the point of adversarial litigation if judges have secret deals which litigants are unable to respond to because they are secret? If judges are going to make such “deals,” then would it not be better to make them public, so that parties could avoid the time, expense, and heartache of bringing futile appeals? If this story really happened, and I have some doubts that it did, then I cannot fault Klein for telling the truth as he knows it. But then why does Klein tell his audience that there is something here “insightful” or “moving”? What? All this story shows is that Klein did not understand what was going on at the time, and he remains as blissfully blind now as he was then.

          And if Klein was not blind: Could not Klein have done something—proactive—about this event, at the time, rather, than just publishing it as part of a reflection long after the fact? Could Klein not have mentioned something—anything—to Powell (even on his last day clerking for Powell) or to Marshall’s clerks? Perhaps, something along the lines, that this is all a very bad look for the Supreme Court of the United States, as it would be for any court of record?

          Then there is this Klein story:

I went from being a favored clerk to a clerk in exile. Bazelon literally moved my office from the big one adjacent to his to a small one down the hall. For the next couple of months, he communicated with me through his executive assistant only. Then, in mid-March, he summoned me to his office and told me I should listen as he returned a call to Potter Stewart, a justice on the U.S. Supreme Court. To my surprise, without telling Stewart, he put him on the speakerphone and said, “Hi, Potter. I got a message saying you wanted to talk about one of my clerks, Joel Klein. You’re considering him for yourself?” Stewart started to say some nice things he’d heard about me, but Bazelon interrupted. “He’s no good,” he said. “One of the worst clerks I’ve ever had. Not very smart and doesn’t work hard.” Bazelon hung up the phone and told me that several other justices had called asking about me, and he’d given them the same report.

I was devastated. I was also astonished by what I saw as inexplicably cruel behavior by this great liberal judge.

          Let’s say Klein was right, and that Bazelon was wrong. What did Klein do about it—at the time? Did he resign? Wait a few days or weeks and, then, have a heart-to-heart discussion over a lunch? Send a written memorandum on his last day clerking, and explain that it is not right to surreptitiously have people listen in on telephone conversations between judges involved in official administrative duties? I know this might sound strange, but just perhaps, Klein could have helped Bazelon? Klein could have suggested that Bazelon take a vacation, take senior status, or therapy? Might Klein have warned (even anonymously) future clerks of the risks involved in working for Bazelon? Could Klein have appealed to Bazelon’s family? Friends? Colleagues? Spoken to the chief judge of the federal circuit court? Did Klein ever tell Justice Potter Stewart—who was on the Supreme Court when Klein clerked for Powell? Instead, Klein saved this story for when Bazelon is dead and cannot answer. In my mind, that’s a damn sight worse than what Bazelon is alleged to have done.

 

It is hardly news that each of us would have some difficulty evaluating our own accomplishments and deeds. The real issue here is not Klein, but rather, it is his Free Press editors and the many, many readers who did not see these stories for what they reveal: a world class Kinsleyesque gaffe (or series of such gaffes). Having read Klein’s article-as-memoir, and more than a few responses, I have come to two conclusions: Our political culture has more than some difficulty distinguishing cowardice from virtue, and the Supreme Court should not have any law clerks.

 

Seth Barrett Tillman, ‘Joel Klein’s World Class Kinsleyesque Gaffe,’ New Reform Club (Sept. 30, 2025, 8:35 AM), <https://reformclub.blogspot.com/2025/09/joel-kleins-world-class-kinsleyesque.html>;

How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be)

 

How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved

(But Probably Won’t Be)

A key issue in this federal case is: What are the legal consequences when Congress appropriates funds by statute? Here, Congress has appropriated funds for named organizations, but the President or his officers have chosen not to segregate and remove the appropriated funds from the Treasury.

Many believe, including some federal judges and legal scholars, that when Congress appropriates money by statute, it follow that those funds must be spent (leaving aside the possibility of any express discretion designed into the statute at issue). There are reasons to reject this position as a settled rule of law.

First, an appropriations statute authorizes the Executive Branch to segregate funds in the Treasury (if such funds are available) and to remove those funds from the Treasury, and, then, further authorizes that the funds be spent for the purposes or in the manner approved by Congress, and in no other fashion. See generally Paul Einzig, The Control of the Purse (1959). But it is not clear that an appropriation commands the segregation, removal, and spending of such funds. Whether a particular statute mandates the segregation, removal, and spending of such funds will depend on the words of the statute. In other words, a naked appropriation (even where made for a particular purpose) does not without more imply that Congress has left the Executive Branch without discretion not to spend the appropriated funds.

Prior to 1787–1788, I do not believe this issue came up in the Imperial or colonial legislatures. Nor do I believe that it came up post 1776 and prior to 1788 among the independent states. The King or his representative was hungry for cash. If an expenditure was approved by the legislature, the executive spent the funds as soon as it was appropriated if not before—often anticipating statutory approval once the lower (elected) house passed a resolution in support of the spending. Sir Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings, and Usage of Parliament 573–74 (7th ed. 1873) (stating that “[i]t has been customary for the government to levy the new duties, instead of the duties authorised by law” either “immediately [after] the resolutions for that purpose have been reported from a committee, and agreed to by the house; or from the date expressed in such resolution, although the legal effect cannot be given to them by statute ... and may ultimately be withheld by Parliament”).

The historical ideal or purpose behind the Constitution’s Appropriations Clause was to make sure that funds could not be segregated and removed from the Treasury absent the legislature’s approval, and that if so removed, such funds could only be spent for the purpose or in the manner as provided by the legislature. I have real doubts if in debating, proposing, and ratifying the Constitution with the Appropriations Clause anyone had considered whether the Executive Branch was obligated (by the Constitution and by statute) to spend such funds as provided by a mere appropriations statute absent some indication (beyond the form of such an act) that Congress intended to mandate such an expenditure. I suggest that the historical default in regard to an appropriation was that such statutes were understood as permissive, not mandatory.

The real question, then, is not the effect of an Appropriations Act per se, but what statutory language would be effective to mandate the Executive Branch’s segregating the appropriated funds, removing them, and then spending them in conformity with the statute. Where Congress’s appropriations act directs a cabinet member, other statutory officer, or civil servant to appropriate such funds, then the question is entirely one of statutory interpretation—as Congress has the power to issue binding directives, in the normal course of legislating, to such governmental actors.

However, where an appropriations act directs the President to segregate funds, remove them, and then to spend them in conformity with the statute, then other principles come into play. Why? Primarily because the President is not a subordinate of Congress and is, instead, a coordinate (and, in some sense, a co-equal) branch of government with its own independent democratic mandate. For Congress to impose a mandatory duty on the President by statute, Congress’s statute must: set a time limit for its fulfilment, designate adverse consequences or a punishment in regard to presidential inactivity, and must clearly indicate that the appropriation is more than permissive, but is mandatory. Furthermore, the use of “shall” is ambiguous, and for that reason, such language does not, without more, impose a duty to act on the President.

Second, even if an appropriations act is mandatory (as opposed to permissive), Treasury funds can only be segregated and removed if they are available. If the Treasury is in the red, then funds are not available, and so, the Executive Branch cannot be held (as a legal matter) to do what is not possible. Indeed, a congressional appropriation, without more, does not empower the Executive Branch to tax, to borrow funds, or to sell federal property to meet otherwise mandatory obligations to spend funds. Such powers must be granted in free-standing statutes (or in additional provisions in the appropriations act itself). Where Congress empowers the Executive Branch to engage in deficit spending by borrowing funds, that too is a statutory power. Here also, one must look to the words of the statute. If Congress has granted the Executive Branch a power to borrow funds (that is, to sell bonds, etc), that power may be merely permissive, and not mandatory. And if permissive and unexercised, then the Executive Branch cannot be faulted for not segregating, removing, and spending funds in conformity with the other statutes, including any appropriations act.

Third, there is a history of Presidents’ acting on their own authority to impound funds temporarily subject to congressional ratification after-the-fact. The general rule is that what Congress can approve ex ante, it can also ratify ex post. However, a President’s taking such unilateral action risks the possibility that Congress will not ratify his impoundment decision, and sanctions (e.g., impeachment) could flow from such presidential conduct. Likewise, Presidents have claimed the power to impound funds approved (by statute) for military use in situations where hostilities end unexpectedly. Lincoln claimed similar financial powers at the outbreak of the Civil War. And his doing so is why we have a country today.

Generally, Congress is the master of the federal government’s financial house. But if it fails to speak with a clear and consistent voice among its different statutes, then that will empower the Executive Branch and the President. That is just how our separation of powers system works.

Seth

Seth Barrett Tillman, ‘How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be),’ New Reform Club (Sept. 28, 2025, 9:00 AM), <https://reformclub.blogspot.com/2025/09/how-department-of-state-v-aids-vaccine.html>; 

 

Asking Professor John Yoo: What is the Evidence that John Merryman “sympathized” with the confederacy?

 

John Yoo’s 2025 Publication Discussing John Merryman (1861): 

At the outset of the [American] Civil War, President Abraham Lincoln refused to obey a writ of habeas corpus issued by Chief Justice Roger Taney regarding confederate sympathizer John Merryman.

John Yoo, Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott, 76 UC Law SF L.J. 1227, 1230–31 (2025), <https://repository.uclawsf.edu/hastings_law_journal/vol76/iss4/6>. What is the evidence or support that Merryman “sympathize[d]” with the confederacy? What? But see ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312, 312 (Baltimore, National Biographical Publishing Company 1879) (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food”). 

Seth Barrett Tillman, ‘Asking Professor John Yoo: What is the Evidence that John Merryman “sympathized” with the confederacy?,’ New Reform Club (Sept. 28, 2025, 5:45 AM), <https://reformclub.blogspot.com/2025/09/john-yoos-2025-publication-discussing.html>.

The Wartime Statesmanship of Éamon de Valera / Advice for the Americans After Doolittle’s Raid—1942

 

 

Éamon de Valera                                        Confidential

Taoiseach                                    Ref No: T-EDV-1942-613

Head of Government

Ireland

20 May 1942

Franklin Roosevelt

President of the United States

The White House

Washington

United States of America

Dear President Roosevelt, 

      The war that now exists between the United States of America and the Empire of Japan--brought about by the attack on Pearl Harbour, and by the quasi-warlike embargo which preceded the attack--is likely to go on for countless years and to cost countless lives. There will be a concomitant injury to civilians and civilian property on both sides, as well as substantial consequential injuries to non-belligerents. E . g ., the USSR and Ireland.

      Doolittle's Raid has achieved its military objective. Retribution for Pearl Harbour is now a fact. They have killed your people, and now, you have killed theirs--the numbers are roughly equal. No lasting peace can be, or has ever been, achieved by making exactitudes of retribution a precondition for peace. Thus, national honour must be held to be satisfied. They have rounded up your nationals, and you are putting in motion plans to round up theirs. Any further horrors of war can serve no useful purpose. Is it not now time to consider an alternative to war? Surely you cannot seriously aim at Japan's (much less, the Axis') actual surrender? Japan's armed forces have captured territories all over Asia and the Pacific, and those forces hold those territories by the same warrant under which your nation and the European imperial powers hold and have held such territories there--all far beyond your American and their European homelands. Japan's honour will not permit her to surrender. And even if the people of Japan were willing to do so, any such decision would be blocked by the Japanese militarists who control the same powerful forces that attacked Pearl Harbour. It follows that the only way to achieve such a surrender would be for your armed forces to recapture your lost territories, and then to go on and to conquer Japan's home islands, and, in the process, to destroy Japan's industry, merchant marine, cities, and population. You do not have the ability to achieve these goals, and were you to try to do so--or worse, were you to achieve them--the horrific price would leave your good name and the good name of the United States covered in the blood of millions of innocents.

I urge you to choose peace and to open negotiations with accredited representatives of the Empire of Japan.

On behalf of Douglas Hyde, the President of Ireland, I offer you my own government's good offices towards the pacific mediation, arbitration, and settlement of the war now existing between your nation and the Empire of Japan. I would urge you to respond to my overtures with all the alacrity that this terrible emergency permits, as my loyal opposition, as well as certain public charities, are calling for a boycott against the goods of belligerents and those selling arms to belligerents. In doing this, the opposition might act in concert with partisans of their political persuasion in other neutral jurisdictions. Should it come to this, I trust you will understand that we intend no animus against the People of the United States, and our policy would treat both your nation and the Empire of Japan even-handedly.

Sincerely,

Éamon de Valera

cc:   Lt Gen Yoshitsugu Tatekawa, Ambassador of the Empire of Japan to the USSR

[END]

Seth Barrett Tillman, ‘The Wartime Statesmanship of Éamon de Valera’ / ‘Advice for the Americans After Doolittle’s Raid—1942,’ New Reform Club (Sept. 26, 2025, 9:01 AM), <https://reformclub.blogspot.com/2025/09/the-wartime-statesmanship-of-eamon-de.html>, <https://ssrn.com/abstract=5527098>.

Seth Barrett Tillman, ‘The Wartime Statesmanship of Éamon de Valera’ / ‘Advice for the Americans After Doolittle’s Raid—1942,’ Quadrant (Sept. 25, 2025, online) (Australia), <https://quadrant.org.au/magazine/story/the-wartime-statesmanship-of-eamon-de-valera/>, <https://ssrn.com/abstract=5527098>, 69(10) Quadrant 104, Oct. 2, 2025 (hardcopy).

This historical parody is a prequel to my prior historical parody: Seth Barrett Tillman, ‘Advice to the Allies—1945,’ 15(2) Claremont Review of Books 13 (Spring 2015) (United States), <http://ssrn.com/abstract=2478600>, <https://claremontreviewofbooks.com/correspondence2/> (bottom of the page), <https://claremontreviewofbooks.com/author/seth-b-tillman/>.

A Great Turn-Down Letter

Dear Seth,

I appreciate your considering ... as a potential platform for [your submission]. The piece is not quite right for us, but I do understand that much time and effort goes into the literary realization of a creative thought; I earnestly wish you luck in placing it with the right journal.

Though we do not have the resources to provide personal feedback for each submission, what I can illuminate (for the curious) is that—much like those of most journals—our decisions are highly subjective, merely matters of taste and style. Just as one opts for certain books (and not others) from a vast shelf, we choose the works that compel us personally, fully recognizing that others are of equal merit, standing in wait to dazzle another potential reader. After all, diversity in aesthetics is precisely what makes the array of literature beautiful.

To fulfilling successes in your writing life!

Best,

[Editor]

Seth Barrett Tillman, ‘A Great Turn-Down Letter,’ New Reform Club (Sept. 22, 2025, 5:13 AM), <https://reformclub.blogspot.com/2025/09/a-great-turn-down-letter.html>;