David Froomkin
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dfroomkin.bsky.social
David Froomkin
@dfroomkin.bsky.social
5.6K followers 630 following 770 posts
Assistant professor, University of Houston Law Center. I write about democracy and the separation of powers. ssrn.com/author=3062912
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dfroomkin.bsky.social
I argued in "The Nondelegation Doctrine and the Structure of the Executive" that the provision under which Trump is claiming his authority to charge fees for H-1B visas violates the nondelegation doctrine.

papers.ssrn.com/abstract=395...
Consider, for instance, the provision of the Immigration and Nationality Act (INA) at issue in Trump v. Hawaii, which grants the President the authority to restrict the entry of aliens if the President finds that their entry “would be detrimental to the interests of the United States.” The finding required by this provision lacks any concrete substance; it confers pure, unbridled discretion upon the President. The Supreme Court in Trump v. Hawaii did not analyze the nondelegation problem (even as it noted that the provision “exudes deference to the President in every clause”), although the Fourth Circuit had observed that “[t]he INA provisions invoked by the Proclamation are similar in critical respects to the statute at issue in Panama Refining, which the Court invalidated on nondelegation grounds.” Indeed, the delegation disapproved in Panama Refining was more constrained, in that it imposed at least a numerical upper bound on the President’s authority to select a policy.201 Under INA section 1182, by contrast, the President could in principle restrict the entry of aliens entirely. Nondelegation analysis ought to approach a provision of this kind by carrying out the two steps described above. The Step Zero conclusion is that the provision delegates unilateral authority to the President. Therefore, a reviewing court should apply a higher level of nondelegation scrutiny in its textual analysis, akin to the 1935 cases. Here, there is a strong case that the provision lacks an intelligible principle, under Panama Refining and Schechter Poultry.
September 20, 2025 at 7:29 PM
dfroomkin.bsky.social
September 10, 2025 at 3:19 PM
dfroomkin.bsky.social
This makes me think of a really interesting recent article by @ericjeisner.bsky.social about the pressure in southern legal systems to permit testimony from Black witnesses, because it was often helpful to white litigants and the white community.

www.cambridge.org/core/service...
August 29, 2025 at 2:26 PM
dfroomkin.bsky.social
August 9, 2025 at 10:16 PM
dfroomkin.bsky.social
Loper Bright's Disingenuity, with @cary-coglianese.bsky.social, is forthcoming in the University of Pennsylvania Law Review. We argue that the majority opinion in Loper Bright is empty and internally contradictory. It is an assertion of power rather than reason.

papers.ssrn.com/abstract=537...
July 30, 2025 at 2:15 PM
dfroomkin.bsky.social
This is an actual, real-life instance of the cartoon.
Person A: My GAWD these Trump people are racist. Person B: That attitude is what's pushing me to be racist! A: Say what? B: Might as well! You say I'm a Nazi so, fine, I'll be a Nazi if that makes you happy. A: It ... doesn't. B (displaying Nazi uniform): I bought this Waffen SS uniform for Halloween. You'll cry 'offensive' so maybe I'll just wear it every day. B (shaving head and getting swastika tattoo): I just hate to do this. I feel bullied, really.
July 15, 2025 at 11:03 PM
dfroomkin.bsky.social
A friend posted this anecdote about Alasdair MacIntyre on Facebook.
Once, he walked into the department lounge while I was arguing with several students over women’s ordination. One of the other students referred to Ordinatio sacerdotalis, and told me the question of women’s ordination is no longer permissible to ask. MacIntyre chimed in then, and said “Ah, yes, this question is closed.” (Queue nods and gestures of agreement from all of my interlocutors here.) But then he said, “However, the meta-question - should this question have been closed or should it be reopened - that is another matter.”
May 28, 2025 at 11:13 AM
dfroomkin.bsky.social
A good topic for a law review article?
When Kieran Healy wrote “fuck nuance,” he understated his point. Nuance is not merely a weakness in theory. Nuance is the antithesis of theory as such. The essence of theory is reductionism. There is a continuum from theory to thick description. The more nuance an account has, the further it moves along the continuum from theory toward thick description. By the same token, all theories are incomplete—because to opt for a theory is to opt against a thick description. Because of the inherent incompleteness of theories, moreover, no theory will ever fully capture the underlying empirical reality. The nature of theory is that multiple theories will always have some fit with the data, because reductionism requires a choice about what features of the data to prioritize. That means that there will always be multiple theories with some empirical purchase. Because multiple descriptions can equally accurately capture important features of empirical reality, choice of theory is an essentially normative enterprise.
March 2, 2025 at 8:22 PM
dfroomkin.bsky.social
I've just posted a draft of "The President's Duty to Commission Officers," arguing that the Commission Clause of the Constitution is an anti-unitary executive provision. It requires the President to respect the authority of executive officers appointed by others. papers.ssrn.com/abstract=504...
December 2, 2024 at 8:17 PM
dfroomkin.bsky.social
I was probably corrupted by Ian, but "John Locke's Democratic Theory" convinced me that Locke offers more for democratic theory than Rousseau. And absolutely, Locke also offers more for a class that thinks about politics and markets in tandem.
December 2, 2024 at 6:19 PM
dfroomkin.bsky.social
Robert Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," 38 Pol. Sci. Q. 470 (1923).

The article's profound insight is that apparently private ordering is ultimately backed by state coercion. All distribution of the social product is always fundamentally a public choice.
"What is the government doing when it 'protects' a property right"? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents." "Not only does the law of property secure for the owners of factories their labor; it also secures for them the revenue derived from the customers. The law compels people to desist from consuming the products of the owner's plant, except with his consent; and he will not consent unless they pay him money. They can escape, of course, by going without the product. But that does not prevent the payment from being compulsory, any more than it prevents the payment of the government tax on tobacco from being compulsory. The penalty for failure to pay, in each case, may be light, but it is sufficient to compel obedience in all those cases where the consumer buys rather than go without."
November 29, 2024 at 7:59 PM
dfroomkin.bsky.social
I was going to wait to share my latest until it had passed through SSRN moderation, but apparently it is already getting downloads. In this paper, @ericjeisner.bsky.social and I investigate the overarching structure of the Constitution's officer/office provisions. papers.ssrn.com/abstract=502...
November 23, 2024 at 7:28 PM
dfroomkin.bsky.social
From the last paragraph of Alasdair MacIntyre’s After Virtue: “What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained through the new dark ages which are already upon us.”
November 7, 2024 at 8:49 PM
dfroomkin.bsky.social
Justice Barrett's argument in Rahimi against a "use it or lose it" standard for legislative power is absolutely right. It's a shame the Court has failed to recognize the same about agency authority in its major questions doctrine cases.
June 25, 2024 at 6:10 PM
dfroomkin.bsky.social
I am delighted to see "The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections," coauthored with Eric Eisner, in print in Arizona State Law Journal. Coauthoring this piece was such a pleasure -- stay tuned for more from us. papers.ssrn.com/abstract=439...
May 19, 2024 at 7:29 PM