One of the reasons why it's so hard to sue the federal government for damages is because, even when Congress *has* authorized such suits, it's imposed limits that are increasingly difficult to defend.
I have to quibble with your assertion that there's nothing much to say about the constitutional issues implicit in Trump's war on Iran. What about presidential immunity from criminal liability? The holding in Trump v. US was that the president is entitled to absolute immunity from criminal prosecution for acts committed within his core constitutional authority, and to presumptive immunity for acts committed within the penumbral scope of his authority. But the president has no constitutional authority to initiate a war, and no authority whatever to do so unless congress first authorizes it. Thus, no aggressive war-making is within a president's core constitutional authority, and no war unauthorized by congress is within his penumbral sphere (except when defending against a foreign aggressor, which is not the case here). So Trump v. US does not extend immunity, either absolute or presumptive, to the current situation. Would it not follow that a president who unilaterally attacks another country with military force is criminally liable for all that follows within American jurisdiction, including, at the very least, deaths and injuries caused and suffered by American armed forces, and the misappropriation or theft of government funds and property? Now that American troops have been killed and injured, with more presumably to follow, this question acquires salience, if not urgency. And with the jurisdictional issue comes the thorny question of universal jurisdiction. I think there's a lot to say on these matters, and I'd love to see you say it.
Re Footnote 1 and Hain v. Palmquist. More than 20 years ago, I was sued by a law firm that was fussing with my co-counsel in a series of cases. Plaintiff's counsel told the state court judge I was MOSTLY named to avoid diversity jurisdiction and federal court. The case went away quickly - I paid nothing - but I recall that it's really, really hard to make the case for improperly suing someone to avoid diversity jurisdiction.
Steve, wrt Iran, you wrote, "It seemed hard to justify a standalone post on the subject—not because of a lack of gravity or seriousness, but because of a lack of novelty."
Yes. Trump's incremental increase in the use of illegal force makes it hard to say anything new. But therein lies the problem. The horror becomes normalized. We have become accustomed to his behavior. Once again we are frogs in boiling water.
Still, thank you for all you do, even finding cause this week to agree, for once, with Justice Thomas. You never cease to amaze.
Thinking about your SCOTUS trivia today, it seems to me that the introduction of AI will lead to far more amicus briefs, since they will be far less costly to write. That will in turn lead to far more SCOTUS clerks turning to AI to summarize the main points of those briefs. At what point, do we just appoint nine AI models to SCOTUS and call it a day?
I have to quibble with your assertion that there's nothing much to say about the constitutional issues implicit in Trump's war on Iran. What about presidential immunity from criminal liability? The holding in Trump v. US was that the president is entitled to absolute immunity from criminal prosecution for acts committed within his core constitutional authority, and to presumptive immunity for acts committed within the penumbral scope of his authority. But the president has no constitutional authority to initiate a war, and no authority whatever to do so unless congress first authorizes it. Thus, no aggressive war-making is within a president's core constitutional authority, and no war unauthorized by congress is within his penumbral sphere (except when defending against a foreign aggressor, which is not the case here). So Trump v. US does not extend immunity, either absolute or presumptive, to the current situation. Would it not follow that a president who unilaterally attacks another country with military force is criminally liable for all that follows within American jurisdiction, including, at the very least, deaths and injuries caused and suffered by American armed forces, and the misappropriation or theft of government funds and property? Now that American troops have been killed and injured, with more presumably to follow, this question acquires salience, if not urgency. And with the jurisdictional issue comes the thorny question of universal jurisdiction. I think there's a lot to say on these matters, and I'd love to see you say it.
Re Footnote 1 and Hain v. Palmquist. More than 20 years ago, I was sued by a law firm that was fussing with my co-counsel in a series of cases. Plaintiff's counsel told the state court judge I was MOSTLY named to avoid diversity jurisdiction and federal court. The case went away quickly - I paid nothing - but I recall that it's really, really hard to make the case for improperly suing someone to avoid diversity jurisdiction.
Steve, wrt Iran, you wrote, "It seemed hard to justify a standalone post on the subject—not because of a lack of gravity or seriousness, but because of a lack of novelty."
Yes. Trump's incremental increase in the use of illegal force makes it hard to say anything new. But therein lies the problem. The horror becomes normalized. We have become accustomed to his behavior. Once again we are frogs in boiling water.
Still, thank you for all you do, even finding cause this week to agree, for once, with Justice Thomas. You never cease to amaze.
Thinking about your SCOTUS trivia today, it seems to me that the introduction of AI will lead to far more amicus briefs, since they will be far less costly to write. That will in turn lead to far more SCOTUS clerks turning to AI to summarize the main points of those briefs. At what point, do we just appoint nine AI models to SCOTUS and call it a day?