Brothers Judd Blog

If two New Hampshire men aren't a match for the Devil, we might as well give the country back to the Indians. -Stephen Vincent Benet (1898-1943)

Presidents

Founding Presidents

JUST THREE BRANCHES:

Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1881 to 1901: Every president from 1881 to 1901 successfully defended presidential at-will removal power. (Steven Calabresi, 1.6.2026, Volokh Conspiracy)

During the oral argument in Trump v. Slaughter, Justice Amy Coney Barrett asked counsel for respondent Slaughter how long independent agencies had existed for and counsel suggested to her, incorrectly, that they dated back to the last twenty years of the 19th Century. In fact, as I will show in a series of posts on this blog, no truly independent agency ever existed prior to the decision in Humphrey’s Executor v. United States in 1935. My full account of the history of presidential resistance to the creation of independent agencies during this period appears in: Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). This blog post will discuss presidential removal power from 1881 to 1901. Subsequent posts will examine presidential removal power from 1901 to 2009. None of these posts could have been written by me without consulting and quoting from the excellent work done by my book co-author, Professor Christopher S. Yoo. He gets all the credit, and I take all the blame for whatever is said below.

In recounting our actual practice from 1881 to 1999, I do not mean to endorse the view that this practice is constitutionally relevant to deciding Trump v. Slaughter. I believe that President Trump should win this case because of the original public meaning of the text of the Constitution. I recognize, however, that only two of the nine justices on the current Supreme Court follow exclusively the original public meaning of the Constitution’s text. All the other seven justices on today’s Supreme Court think, to various degrees, that arguments from practice are sometimes relevant to the question of whether Humphrey’s Executor (1935) should be overruled. Since I have co-published the book with Christopher Yoo cited above on our actual practice, and since the issue is now pending before the Supreme Court, I want to explain why the arguments from presidential practice that Christopher Yoo helped me to write about 18 years ago support overruling Humphrey’s Executor (1935).

Ownership Society

THE SAVINGEST PEOPLE ON EARTH:

401(k)s Built America’s Wealth and Proved All the Critics Wrong: The rise of defined contribution accounts has given workers portability, flexibility, and a stake in America’s capital markets. (Judge Glock, December 24, 2025, Daily Economy)

A recent Wall Street Journal story highlighted the hundreds of thousands of “401(k) millionaires” just at the Fidelity brokerage. Far from being a refuge just for the wealthy, individual retirement accounts have become a widespread and secure way to save for retirement. They have also become one of the main reasons for America’s national wealth. […]

Around the time of the 401(k) tax code change, there were about 30 million defined benefit plan participants in the private sector, an all-time peak. That was nearly double the total in “defined contribution” or individual retirement plans, such as the 401(k).

Today, the number of active participants in defined benefit plans is down to about 10 million, but there are almost 90 million in defined contribution plans. Thanks to 401(k)s, the total number of workers with any retirement plan is at an all-time high, even accounting for population growth. […]

Despite periodic cries about a retirement crisis, people with the option to save for retirement are saving a lot. Fidelity estimates that people with 401(k)s are saving over 14 percent of their income in them, including both employer and employee contributions. The median retirement savings for the recently retired is $200,000, which helps explain the all-time record net worth for this group. The amount of savings will go up as more people retire who only know of defined contribution accounts. The number of people with individual accounts at middle age is actually higher than it is for older groups.  

Beyond the benefits to individuals, there are social benefits to individual retirement accounts. In countries with more expansive collective safety nets and social security, most people don’t have to save as much for retirement. Although for some individuals that could work out fine, for society as a whole, it can be devastating.

Founding Presidents Religion Uncategorized

IT’S A PURITAN NATION:

Calvin Coolidge’s “Hebraic Mortar”: Henry Ford sought to mainstream anti-Jewish sentiment in the United States. In a 1925 address, Coolidge decisively broke with Ford’s movement. (Devorah Goldman, 12/22/25, Public Discourse)

But he argues that the colonial character was nonetheless marked by a common religious liberalism: “From its beginnings, the new continent had seemed destined to be the home of religious tolerance.” This, he suggests, is because of the Bible, “the work of literature that was common to all of them.” Scripture was everywhere in the colonies. Citing “the historian Lecky”—presumably the nineteenth-century Irishman William Lecky—Coolidge contends that “Hebraic mortar cemented the foundations of American democracy.”

For the “sturdy old divines of those days,” the Bible served as a patriotic rallying cry:

They knew the Book. They were profoundly familiar with it, and eminently capable in the exposition of all its justifications for rebellion. To them, the record of the exodus from Egypt was indeed an inspired precedent. They knew what arguments from holy writ would most powerfully influence their people. It required no great stretch of logical processes to demonstrate that the children of Israel, making bricks without straw in Egypt, had their modern counterpart in the people of the colonies, enduring the imposition of taxation without representation!

The idea of America as a kind of Israel, an “almost chosen nation,” in Abraham Lincoln’s words some generations earlier, was not new. William Bradford, founder of the Plymouth colony in 1620, compared his personal study of Hebrew to Moses seeing the Promised Land, yet not being permitted to enter. John Davenport and Theophilus Eaton, founders of the New Haven colony in 1637, were expert Hebrew scholars; around half of the dozens of statutes in the New Haven code of 1655 contained references to Hebrew scripture. Davenport ensured that the first public school in New Haven included Hebrew in the core curriculum and encouraged broad engagement with, as Coolidge puts it, the “great figures of Hebrew history, with Joshua, Samuel, Moses, Joseph, David, Solomon, Gideon, Elisha.” The United States is peppered with place names sourced from the Bible: Salem, Sharon, Jericho, Bethlehem, Goshen, Shiloh, and Hebron are just a few examples.

George Washington famously sent warm greetings to Jewish congregations, most notably to a synagogue in Newport, Rhode Island, where he offered a blessing inspired by Hebrew prophets: “May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

This biblical rootedness, Coolidge suggests, remains vital to maintaining a cohesive polity. A shared attachment to the Bible bolstered the patriot cause, drawing together scattered sympathies and interests and “divergencies of religious faith.” It is no wonder, he notes, that Jews—who first arrived on America’s shores in the 1650s—formed an integral part of the Revolutionary War effort, giving ample blood and treasure.

Cheeto Jesus

IT’S NOT AMERICAN:

2025 was a political disaster for MAGA: And 2026 could be even worse. (Justin Glawe, Dec 17, 2025, Public Notice)

From the Epstein files, to the economy, to the deadly military airstrikes on alleged drug boats in international waters, Trump and his entire administration are engaged in a desperate battle against the truth at the end of politically disastrous year for the MAGA movement.


But the lies aren’t really working anymore, and polls reflect this. Against the backdrop of a sluggish economy that’s been made worse by his own policies, Trump is less popular than he’s ever been. Instead of actually doing something to combat stubborn inflation and stagnant job growth, the president and his surrogates are just trying to lie their way out of it.

Meanwhile, despite having power in both the House and the Senate, congressional Republicans have failed to accomplish anything of note since the passage of Trump’s (also deeply unpopular) “Big Beautiful Bill.” Right now, they’re doing nothing to prevent healthcare premiums from rising for 21 million Americans when enhanced Obamacare subsidies expire at the end of this month.

Cheeto Jesus

THIS IS THE WAY:

Jack Smith, Trump’s Target, Shifts From Defense to Counterattack (Glenn Thrush, Nov. 3, 2025, NY Times)

Mr. Smith, who spent more than two years aggressively collecting evidence to prove Mr. Trump mishandled classified documents and tried to overturn the results of the 2020 election, appears eager to publicly challenge a foundational pillar of MAGA canon: that the president was a sinned-upon innocent who did nothing to deserve scrutiny, much less two prosecutions.

Mr. Smith has told people in his orbit that he welcomes the opportunity to present the public case against Mr. Trump denied to him by the Supreme Court decision asserting broad presidential immunity from prosecution and adverse rulings from a Trump-appointed judge on the federal bench in Florida.

End of History FDR One Economy to Rule Them All

TRUMPISM FAILED THE LAST TWO TIMES TOO:

The New Deal’s Radical Uncertainty: a review of False Dawn by George Selgin (James E. Hartley, 9/23/25, Law & Libertry)

So much for the success stories of the Roosevelt Administration’s efforts to combat the Great Depression. When we turn our attention away from the monetary side of things, the narrative becomes quite dismal. The lack of success was not from a lack of trying. As every high school history student knows, keeping track of the alphabet soup of New Deal policies involves a lot of memorization.

Selgin meticulously dissects the “twin pillars of Roosevelt’s recovery program.” First, the Agricultural Adjustment Administration (AAA) aimed to raise the prices of agricultural products, which certainly benefits the farmers who are selling the products, but is not so helpful to those buying the products. The agricultural sector, however, was about a quarter of the population, and it is certainly true that if a sufficient number of farmers went bankrupt, it would result in a noticeable drop in the food supply.

The AAA simultaneously provided direct benefits to farmers and required them to limit the amount of food they produced, causing prices to rise. As a relief measure for farmers, the effect of such a policy is obvious. But, did it help economic recovery? The evidence here is pretty overwhelming that it did not. Transferring money from one set of the population (those who buy food) to another set (those who produce food) is not a net benefit. Even within the agricultural sector, the effect on recovery was negative. While the farm owners benefited from the payments they received and the higher prices for their products, because the farm owners were restricting production, those benefits are offset by the reduction in the number of farm workers employed by the farm owners.

What about the other pillar of the New Deal, the National Recovery Administration (NRA)? It was even worse. An ever-expanding set of rules trying to micromanage just about every aspect of business behavior, the NRA was the clear centerpiece of the Roosevelt Administration’s effort to promote economic recovery. Price and wage controls, production limits, industry codes, business and worker councils, the list goes on and on. As Selgin concludes: “After initially raising hopes, the NRA ended up disappointing almost everyone, including those businessmen who hoped to profit by dominating the code-writing boards. Before the experiment ended, Roosevelt himself felt compelled to admit (privately, to Frances Perkins) that ‘the whole thing is a mess.’”

Presidents

THE EXECUTIVE BRANCH’S FUNCTION:

A Quiet Administrative Revolution: Changes in bureaucratic procedure are revolutionizing how the administrative state works—potentially reestablishing democratic control.(Donald Devine, 9/08/25, Law & Liberty)

The ruling provision of the OPM guidance directly states that “covered agencies and subdivisions are no longer subject to [certain] collective-bargaining requirements.” As a result, executive agencies no longer must engage in collective bargaining with federal unions. Consequently, the original recognition of the relevant unions no longer applies, and unions lose their status as exclusively recognized labor organizations requiring agency facilitation in collecting union dues.

Agencies are further arguably allowed to proceed with personnel policies generally, including reductions in force. Units covered by the memorandum include the departments of Defense, State, Treasury, Veterans Affairs, Justice, and Homeland Security, and substantial parts of most other major federal agencies. All are directed “to return to the policies of Executive Order 13839” and are “accordingly required to, consistent with applicable law, return performance evaluations to 30 days, and administer discipline and unacceptable performance policies to those set in the first Trump administration and to separate employees for unacceptable performance in appropriate cases.” Union involvement in employee separations was invalidated, and government-paid union positions were eliminated.

A memorandum titled “Restoring Accountability for Career Senior Executives” revived performance management principles requiring actual plans from each top career senior executive to be evaluated by a political superior and reviewed by performance review boards managed by non-career executives. Failure to perform could lead to removal without an appeal to an administrative review. Similar procedures would again cover second-level career supervisors as in the original Carter legislation.

Together, these reforms change the nature of government administration. The union-related changes alone are fundamental. These weaken government unions and associations’ powers, agency fees, and costs, freeing willing career managers and executives to implement the decisions of presidentially appointed agency leaders. Even Democratic President Franklin Roosevelt opposed unionizing federal government employees.

Cheeto Jesus

THE DOOR WAS AJAR:

The history of American corporate nationalization (Tyler Cowen, August 24, 2025, Marginal Revolution)

You should note that although the United States has not so many state-owned enterprises, the American government still has ways of expressing its will on business, or as the case may be, favoring one set of businesses over another. In these latter cases it can be said that American business is expressing its will over government through forms of crony capitalism, a concept which is spreading in both America and China.

The United States has evolved a subtle brand of corporatism and industrial policy that is mostly decentralized and also – this is an important point — relatively stable across shifts of political power. America uses its large country privileges to maintain access to world markets and to protect the property rights of its investors, usually without much regard for whether they are Democrats or Republicans. For instance the State Department works hard to maintain open world markets for films and other cultural goods and services. Toward this end America has used trade negotiations, diplomatic leverage, foreign aid, and also explicit arm-twisting, based on its military commitments to protect allied nations in Western Europe and East Asia. America already had successful entertainment producers, it just wanted to make sure they could earn more money abroad, and that is why the American government usually insists on open access for audiovisual products when it negotiates free trade treaties. Yet in these deals there is not much if any explicit favoritism for one movie or television studio over another, or for one political alliance over another. Democrats are disproportionately overrepresented in Hollywood, but Republican administrations protect the interests of the American entertainment sector nonetheless. It’s about the money and the jobs, not about shifting political coalitions. You’ll note that the independence from particular political coalitions gives the American business environment a particular stability and predictability, to its advantage internationally and otherwise.

Presidents

“GREAT GOBLIN-BEAST”:

The Ghost Bear (Theodore Roosevelt, Forgotten Tales and Vanished Trails)

They were surprised to find that, during their short absence, something — apparently a bear — had visited camp and rummaged about among their things, scattering the contents of their packs and, in sheer wantonness, destroying their lean-to. The footprints of the beast were quite plain, but at first they paid no particular heed to them, busying themselves with rebuilding the lean-to, laying out their beds and stores, and lighting the fire.

While Bauman was making ready supper, it being already dark, his companion began to examine the tracks more closely, and soon took a brand from the fire to follow them up, where the intruder had walked along a game trail after leaving the camp. When the brand flickered out, he returned and took another, repeating his inspection of the footprints very closely. Coming back to the fire, he stood by it a minute or two, peering out into the darkness, and suddenly remarked: “Bauman, that bear must have been walking on two legs.”

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