Shalev Gad Roisman
Law Professor at University of Arizona
alum of OLC and Waterville Senior High School
- I am happy to see this too. I agree with Rappaport's framing of the issue as one where both branches have power (POTUS to control and Congress to structure offices). This is also how I framed the issue in my "Limits of Formalism" piece below. /1 papers.ssrn.com/sol3/papers....
- More major originalist movement against presidential removal power: Mike Rappaport, prominent originalist unitary theorist, admirably updated his views: Article II does not imply a removal power. He makes a case for presidential policy control instead. blog.dividedargument.com/p/guest-post...
- The hard Q is how to resolve disputes when both branches have power to act and come into conflict. I have proposed interest balancing as one method for resolving disputes where both branches have power. /2 lawreview.uchicago.edu/print-archiv...
- I'd be curious to know what method Rappaport is using to identify the modes of control that can override Congress's relevant power here. In my view, the Q of how to resolve disputes in areas of overlapping power is a genuinely difficult one that I think SOP scholars should spend more time on /end
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- I think it also important to keep in mind that the Abrego Garcia case, in the moment, stood for something important: That there are limits on what the government can do that the government will abide by. I think things would have looked quite different w/o that minimal but important signal.
- I've been puzzling over this thread for the last day. I even posted a thread and deleted it. My initial response was to say that I was genuinely interested to know if Ryan and Sam no longer wanted to abandon constitutionalism.
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View full threadAt bottom, my questions stemmed from a desire to engage with the authors on whether their views on abandoning constitutionalism had changed, particularly as we are getting a glimpse of what a post-higher law vision of government could look like.
- I'd still very much welcome the authors thoughts on this front and am certainly open to being shown where I've missed something! (And here is the thread (or one of them) that I think spurred Ryan's thread above. FWIW I thought it led to quite an interesting exchange) bsky.app/profile/shal...
- That is still my bottomline: I continue to want to know if they have revised their views on this! But I am confused as to what is "intellectually dishonest" about asking if they still stand by a position they took publicly. bsky.app/profile/ryan...
- I explained in detail why I thought their proposal of a post-higher law vision for our government was a dangerous one in the post below from 2022, which, yes, I think aged quite well. I hope readers will check it out for themselves. balkin.blogspot.com/2022/09/bett...
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View full threadOf course, as Ryan says, incremental reforms can lead to radical reforms (and ofc they can make them less likely too). But my question was whether they continue to believe in their particular radical reform proposal (i.e., abandoning not just our Constitution, but constitutionalism entirely).
- I explained why calls to abandon constitutionalism are hugely risky in the post below, which fleshed out the dangers of a government w/o higher law limits esp. given current political realities in the US. I think the post, from 2022, has aged quite well (sadly). balkin.blogspot.com/2022/09/bett...
- Sam, interesting piece, but I am trying to reconcile it with your and Ryan's earlier work. The piece tries to distinguish its claim from "nihilism" about law. But you & Ryan have argued for abandoning Constitutions entirely-not just judicial supremacy regarding constitutional interpretation. /1
- On con law exam day, here is my answer (to a different prompt) A collab with @ryandoerfler.bsky.social based on our draft piece www.theguardian.com/commentisfre...
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View full threadI agree that constitutional/higher law arguments can be abused. I am still responding to your and Sam's call to abandon higher law entirely. That's it! As far as I can tell, the rest is a longstanding debate about judicial supremacy that I have not much to say about.
- If you indeed want to call the proposal "legislative constitutionalism" that makes sense and I have nothing left to say (about this) :)
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- Doesn't the UK have a constitution? (an unwritten one)
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- I'm not sure I follow the relevance. One can use const arguments for good or ill, but w/o higher law there is no (legal) limit at all!
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- I don't see how one can have statutes regulating the exec w/o a higher law telling them to. or, at least, I wouldn't call that a legal system. one might even call it nihilistic :) agreed orthogonal to mainstream concerns, but I am responding to your args which are not mainstream! (to your credit)
- Your piece argued against constitutionalism, defined as the idea "that there needs to be some higher law that is more difficult to change than the rest of the legal order." One such "higher law" would be that statutes govern exec actions. You argued against such "higher law," no?
- As to attributing "fascist" or "anarchic" arguments, my point was that, without "higher law," nothing stops fascism or anarchism (or monarchism or theocracy or whatever other form of government) from coming. This was my main point in response! balkin.blogspot.com/2022/09/bett...
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- Thanks, Sam. I don't think so. Your claim was there ought to be no higher law at all--that would include requirements like the President following statutory commands (which could be written or not). The mechanism to enforce higher law is a separate Q.
- In short, I think the people criticized might be forgiven for interpreting your prior work as nihilistic wrt higher law. if on the other hand, your claim is for court reform--then I think it is fair to say that is not a controversial one in the legal academy.
- But I am genuinely interested to know! Do you still think we should abandon higher law and leave everything to a popularly elected majority? /end
- With no higher law limits, this would mean the Trump admin could do anything it wanted--meaning CECOT deportations ongoing, no protection of speech, no POTUS term limits, blatant religious discrimination, end of civil service, no limits on funding cutoffs, no crim procedure protections & more.
- The dangers of limitless majoritarianism were ofc predictable. I fleshed many of them out in response to your piece calling to abandon constitutionalism (see below) balkin.blogspot.com/2022/09/bett...
- Do you still believe that abandoning constitutionalism would be a good idea? /2 www.nytimes.com/2022/08/19/o...
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- One could also balance the interests :) But I get the concern about judicial activism. lawreview.uchicago.edu/print-archiv...
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- Thanks! The conception is incredibly broad bc it combines both the idea that (1) only POTUS has any authority that falls under the relevant "exclusive" power; but (2) that no other branch can INTERFERE with such a power. The noninterference principle is really what makes the conception so broad.
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- I don't think the Roberts Court majority understands the limits of that category (or lack thereof) either harvardlawreview.org/blog/2025/04...
- Presidential Factfinding
- This is a great piece!
- High praise for UK Law Prof Jonathan David Shaub in a new JOTWELL review by Prof. Margaret Kwoka of his recent article: adlaw.jotwell.com/informationa... #UKLawProfResearch
- Highly Recommended!
- Timely and important piece on "The Appellate Void" by my colleague, Andy Coan, now up on SSRN. papers.ssrn.com/sol3/papers....
- Abstract here:
- Very generous and thoughtful piece applying the framework we put forward in linked piece below. Thank you, Rodger! michiganlawreview.org/journal/pict...
- Thanks to Rodger Citron for this enlightening discussion of how he and his colleagues wrote their new “Learning Administrative Law” book drawing on @shalevroisman.bsky.social and mine piece “Pictures of A Revolution” verdict.justia.com/2025/09/08/h...
- I think this is also an example of the exclusive powers conception taking over. See Rao's op (at 12) arguing the dct erred by interfering w/ POTUS's exclusive diplomacy power. For an initial take on the exclusive powers era, see below. Full article version TK... harvardlawreview.org/blog/2025/04...
- This is a perfect example of the federal courts/Trump nominees justifying noncompliance through "legalistic noncompliance," using legal language as cover to claim compliance when it's actually defiance, - a phenomena Dan Deacon and I write about in this paper: papers.ssrn.com/sol3/papers....
- It seems increasingly apparent that, IF President Trump fires Jerome Powell, it will be on the basis of having ostensible factual "cause" to do so pursuant to the Federal Reserve Act, rather than by claiming that the Federal Reserve's independence is unconstitutional.
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View full threadThis distinction in how the removal restriction is phrased ought to matter and should subject any such factual claim to objective judicial scrutiny. For more on the distinction between subjective and objective conditions in presidential power, see below ir.lawnet.fordham.edu/flr/vol91/is...
- Statutory text is here: www.federalreserve.gov/aboutthefed/...
- In my view, this will put the President on stronger footing in front of the Ct, as they will be wary of scrutinizing such a factual claim. BUT the statute provides for removal only "for cause," stated objectively. It does not provide for removal whenever the President "finds" there is cause...
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- While you are of course right that the Court did not say this in this case, sadly, I think there is much in the Roberts Court's doctrine to support it... harvardlawreview.org/blog/2025/04...
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View full threadOh, got it. What if a statute requires POTUS to implement policy X and POTUS would like to "control" execution of the law thru a different departmental structure? I don't see diff b/w that and disregarding removal restrictions (that are also authorized by Cong power to create/structure exec branch)
- Or what if POTUS wants to "control" execution of the law by skipping notice and comment rule making? If POTUS can ignore for-cause removal restrictions when they interfere with POTUS control, why can't POTUS ignore admin law when interferes with POTUS control?
- I'm not sure I follow your interpretation of Seila. You think it holds CONGRESS gives POTUS removal power? It says Art II gives POTUS "unrestricted" removal power, no? 1/2
- Perhaps more importantly, I think you're providing a way to read the cases narrowly. I'd prefer that reading but I don't see why we should assume SCOTUS, let alone the Trump admin, will read the cases narrowly rather than broadly, and so it's important to understand the implications if read broadly
- That is not how I read Trump as much as i would prefer that reading. Will send you full draft when ready!
- And I agree it doesn’t make sense in that the cases and doctrine are contradictory but if choose to prioritize potus over congress whenever in area of overlap that is the consequence.
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- Of course I have a typo in first of these responses. Sorry!
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- No they have not, which is why I think they have not yet taken the doctrine as far as it could go (surprising as that sounds). Again, TBC, I think this way of resolving SOP disputes is deeply flawed and should be abandoned, but it seems to be the method Roberts Ct using.
