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7) If the Board of Immigration Appeals affirms Judge Coman’s decision, SCOTUS may ultimately decide whether the case of #Khalil becomes a comparable milestone

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6) There’s no clear statement in the foreign-policy provision; an analogous clear statement test in Ex parte Endo helped end the Japanese-American internment and in Kent v. Dulles dimmed the McCarthy Era blacklist

5) David Martin & I have explained that a statute that ends LPR status so abruptly must include a “clear statement” that Congress planned this outcome: www.lawfaremedia.org/article/the-...

The Khalil Case and the Difference Lawful Permanent Resident Status Makes

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.

100

4) For LPRs, who have reasonably relied on building a life in the US, such amorphous charges don’t provide the clear notice that Due Process requires

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2) In cases of political speech, INA sec. 1227(a)(4)(C), which Judge Coman cited, turns on the Secretary of State’s discretion to find that a noncitizen whom the provision covers has compromised a “compelling US foreign policy interest”

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1) The immigration case of LPR Mahmoud #Khalil is in opening rounds; Immigration Judge Jamee Coman’s finding of removability under the INA’s foreign-policy provision does not herald the case’s outcome: www.nytimes.com/2025/04/11/n...

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13) SG invocation of intrusive NLRB rulemaking chases a chimera, not an actual risk

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12) The collapse of the Biden joint-employer rule has pushed the NLRB back to its adjudicatory origins, with no forays into regs on the horizon

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11) Biden reg w/ broad definition of joint employer foundered due to clash with underlying statute & Loper Bright’s overruling of Chevron deference

100

10) Both Trump I and Biden hoped to provided more stable guidance thru regs

9) NLRB had earlier provided this guidance through adjudication, with oscillating outcomes that varied with POTUS

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8) Identity of employer is ancillary to NLRB’s decisions re whether employer has committed unfair labor practices

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7) The Biden admin. joint-employer rule with broad definition sought to replace narrower Trump I rule

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6) But this exception proves the rule of NLRB preference for adjudication over regs

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5) SG makes much of tangled NLRB rulemaking re “joint employer” who can be liable for unfair labor practices; this definition matters for firms contracting for services from other companies

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4) Preference for adjudication over rulemaking dates to the NLRB’s founding

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3) Bulk of NLRB activity is adjudicatory, which can breed “policy oscillation” w/ changes in administration, per NYU labor prof Sam Estreicher: scholarlycommons.law.emory.edu/cgi/viewcont...

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2) SG says rulemaking is executive in nature, not adjudicatory, and points to regs from NLRB, but gov’t overstates the case

100

1) One issue in #HumphreysExecutor case Trump v. Wilcox is nature of power exercised by @NLRB and @USMSPB, which SG raised in stay request to SCOTUS (admin. stay by CJ): www.supremecourt.gov/DocketPDF/24... from 2_Wilcox-Harris%20Appl.pdf (🧵from X)

supremecourt.gov

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In case of LPR protester Mahmoud #Khalil, vagueness and lack of notice still mar the government’s immigration filings, which allege amorphous “antisemitic protests & disruptive activities.” David Martin & I explain that Due Process requires more: www.lawfaremedia.org/article/the-...

The Khalil Case and the Difference Lawful Permanent Resident Status Makes

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.

000

The Khalil Case and the Difference Lawful Permanent Resident Status Makes

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.

010

In case of LPR protester Mahmoud #Khalil, vagueness and lack of notice still mar the government’s filings, which allege amorphous "antisemitic protests & disruptive activities." David Martin & I explain that Due Process requires more: www.lawfaremedia.org/article/the-...

The Khalil Case and the Difference Lawful Permanent Resident Status Makes

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.

010

In case of LPR protester Mahmoud #Khalil, vagueness and lack of notice still mar the government’s immigration filings; David Martin & I explain that Due Process requires more: www.lawfaremedia.org/article/the-...

The Khalil Case and the Difference Lawful Permanent Resident Status Makes

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.

061

7) INA sec. 1227(a)(4)(C), the basis for Sec’y Rubio’s letter, only cites “adverse foreign policy consequences” to the US, but doesn’t expressly include LPRs; courts should read this provision as not applying to LPRs, given their reliance interests

000

5) #SCOTUS has long held that loss of LPR status is the “equivalent of banishment”

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4) “Antisemitic protests” & “disruptive activities” are amorphous, debatable terms that include a vast range of speech and conduct, from criticism of gov’t policy to raised voices on public sidewalks

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3) Especially for LPRs, who have a substantial reliance interest in remaining in the US, removal based on “antisemitic protests & disruptive activities” doesn’t provide the notice that Due Process requires for LPRs

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1) In case of LPR protester Mahmoud #Khalil, vagueness and lack of notice still mar the government’s immigration filings

100

Structuring the President's Removal Power: An Agency-Specific Approach

11) In updated paper, “Structuring POTUS’s Removal Power,” I argue for agency-specific view that flows from Congress’s efforts to fill persistent gaps left by the branches’ failed attempts: papers.ssrn.com/sol3/papers....

papers.ssrn.com

<div> Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the Preside

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10) Judge Millett’s dissent from earlier panel decision stressed distinctive origins of both @NLRB & @USMSPB in labor strife & spoils system, respectively

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9) At base, Judge Rao’s dissent relies on her substantive view that #HumphreysExecutor should be overruled; while that contention may be correct about FTC & other agencies, it isn’t correct across the board

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8) That narrow holding is a thin reed for barring relief against POTUS overreaching, since Justice Scalia in Franklin v. Mass.—also cited by Judge Rao—noted that parties asserting harm by POTUS could obtain review against officers “enforcing POTUS’s directive”

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7) Grupo Mexicano addressed only whether a general creditor (one w/o a judgment v. the debtor) could obtain an injunction—SCOTUS cited Chancellor Kent on potential for needless interference w/ business

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6) Judge Rao’s reliance on SCOTUS 1999 decision Grupo Mexicano is misplaced; that case speaks broadly of equity being limited to “principles” recognized by English courts in 1789, but question in that case was narrow

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5) Here, Justice Rehnquist’s view in Sampson v. Murray should prevail: Interim relief is available for fired fed. employees in appropriate cases

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4) Judge Rao’s concerns are less compelling w/ curbs on dismissal of officer of multi-member agency such as @NLRB, who does not work closely w/ POTUS

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3) Judge Rao’s dissent from CADC’s denial of a stay stems from concerns about limits on fed. court’s equitable power to provide relief directly against #POTUS that the en banc CADC should have explored more fully

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2) 1-week stay to allow gov’t application to #SCOTUS would have been more appropriate, as Judge Srinivasan noted

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1) #HumphreysExecutor seems headed for #SCOTUS as en banc CADC denies stay of orders curbing dismissal of @NLRB & @USMSPB members: media.cadc.uscourts.gov/orders/docs/... 🧵(also on X)

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6) But Millett is clear on how structural shortfall led to creation of MSPB & NLRB: Ills of spoils system & labor injunctions respectively showed need for agency independence, per my piece on an “Agency-Specific Approach to the Removal Power,” papers.ssrn.com/sol3/papers....

papers.ssrn.com

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5) Partial obstruction in Millett’s dissent: circuit court’s duty to follow SCOTUS precedent, including Justice Sutherland’s swapping out of substance for slogans like “quasi-judicial” and “quasi-legislative” in #HumphreysExecutor

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4) Henderson takes a more temperate tack, acknowledging that adjudication by MSPB & NLRB falls outside executive wheelhouse, but she places undue importance on limited rulemaking and exercise of remedial power by MSPB and NLRB that serve board decrees

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3) Per @jedshug.bsky.social & @jgienapp.bsky.social, Madison simply didn’t have the votes for robust recognition of executive removal power; Judge Walker doesn’t acknowledge this nuanced history

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Separation of Powers as Ordinary Interpretation - Harvard Law Review

2) Walker fails to discern the nuance in the First Congress’s view of the President’s removal power; per John Manning’s “Separation of Powers As Ordinary Interpretation,” harvardlawreview.org/print/vol-12..., debate & legislation addressed POTUS’s removal power obliquely

harvardlawreview.org

The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Funct...

1) On removal of MSPB & NLRB members, CADC stay of injunction www.democracydocket.com/wp-content/u... offers three windows on executive & legislative power: foggy (Walker) and clear but partially obstructed (Henderson concurring & Millett dissenting)🧵

democracydocket.com