Sam J. Merchant
@sammerchant.bsky.social
Law Prof: Con Law, Crim Pro, Sentencing, Habeas at Minnesota Law
Pinned
Sam J. Merchant
@sammerchant.bsky.social
· Nov 13
Plug for my book, Revolution in Redline! (February 2025) In it I trace the ideas that led to the Founding Documents, then show drafts of those documents in "redline" and show the drafters debates over the documents. It's a concise and accessible way for students and scholars to explore the Founding.
Reposted by Sam J. Merchant
New Paper: Presidential Control of the Civil Service.
Conventional wisdom holds that the civil service sits safely beyond the president's reach. Does it? (1) Not nearly as much as legal scholars think. (2) That's a problem for the execution of the law. 1/12
papers.ssrn.com/sol3/papers....
Conventional wisdom holds that the civil service sits safely beyond the president's reach. Does it? (1) Not nearly as much as legal scholars think. (2) That's a problem for the execution of the law. 1/12
papers.ssrn.com/sol3/papers....
Presidential Control of the Civil Service
<p>Conventional wisdom treats the federal civil service as largely beyond the president’s reach. This Article challenges that assumption. Legal scholars too oft
papers.ssrn.com
November 25, 2025 at 4:07 PM
New Paper: Presidential Control of the Civil Service.
Conventional wisdom holds that the civil service sits safely beyond the president's reach. Does it? (1) Not nearly as much as legal scholars think. (2) That's a problem for the execution of the law. 1/12
papers.ssrn.com/sol3/papers....
Conventional wisdom holds that the civil service sits safely beyond the president's reach. Does it? (1) Not nearly as much as legal scholars think. (2) That's a problem for the execution of the law. 1/12
papers.ssrn.com/sol3/papers....
There is added absurdity to this. Businesses/importers/whoever are refunded by the gov't if/when the Trump Administration loses. But the consumer, who had to pay the higher price due to the tariff, gets no refund. So it's ultimately a huge windfall to companies at the expense of consumers.
This viral tweet, reposted nearly 2k times so far, reflects the reach of Trump’s lies about tariffs.
Barrett was asking how the government would refund people in the *US* if Trump loses.
Because that’s who pays Trump’s import taxes. www.allrisenews.com/p/scotus-tar...
Barrett was asking how the government would refund people in the *US* if Trump loses.
Because that’s who pays Trump’s import taxes. www.allrisenews.com/p/scotus-tar...
November 6, 2025 at 12:02 AM
There is added absurdity to this. Businesses/importers/whoever are refunded by the gov't if/when the Trump Administration loses. But the consumer, who had to pay the higher price due to the tariff, gets no refund. So it's ultimately a huge windfall to companies at the expense of consumers.
Reposted by Sam J. Merchant
Katyal just referred to "French Revolutioning" all statutes.
November 5, 2025 at 4:55 PM
Katyal just referred to "French Revolutioning" all statutes.
SCOTUS to decide constitutionally of criminal prohibition against gun possession by an “unlawful user” of drugs. This case will either prove the goofiness of the strict “historical analogs” test (there are none here) or the justices will make up a new test.
The case is one of at least two major gun disputes the Supreme Court is set to decide this term.
Supreme Court Will Consider Overturning Federal Ban On Drug Users Owning Guns
The case is one of at least two major gun disputes the Supreme Court is set to decide this term.
www.forbes.com
October 20, 2025 at 2:49 PM
SCOTUS to decide constitutionally of criminal prohibition against gun possession by an “unlawful user” of drugs. This case will either prove the goofiness of the strict “historical analogs” test (there are none here) or the justices will make up a new test.
Enjoyed workshopping a piece at Georgetown Law today, and thank you Michael Klarman for commentary!
October 10, 2025 at 9:36 PM
Enjoyed workshopping a piece at Georgetown Law today, and thank you Michael Klarman for commentary!
Here I try to break down this controversial sentence without getting distracted by shiny objects.
Sam J. Merchant posts "Sentencing Transgender Assassins of Supreme Court Justices."
On the sentencing of Sophie Roske, who planned to assassinate Brett Kavanaugh... and why sentencing is hard.
crimprof.blog/sentencing-t...
On the sentencing of Sophie Roske, who planned to assassinate Brett Kavanaugh... and why sentencing is hard.
crimprof.blog/sentencing-t...
Sentencing Transgender Assassins of Supreme Court Justices – Crimprof Blog
crimprof.blog
October 9, 2025 at 6:20 PM
Here I try to break down this controversial sentence without getting distracted by shiny objects.
Reposted by Sam J. Merchant
Sam Merchant posts "Explained: Sean 'Diddy' Combs Sentenced to 50 Months in Prison."
Unpacking one of the most high-profile applications of the Federal Sentencing Guidelines in years.
crimprof.blog/explained-se...
Unpacking one of the most high-profile applications of the Federal Sentencing Guidelines in years.
crimprof.blog/explained-se...
Explained: Sean “Diddy” Combs Sentenced to 50 Months in Prison – Crimprof Blog
crimprof.blog
October 8, 2025 at 1:59 PM
Sam Merchant posts "Explained: Sean 'Diddy' Combs Sentenced to 50 Months in Prison."
Unpacking one of the most high-profile applications of the Federal Sentencing Guidelines in years.
crimprof.blog/explained-se...
Unpacking one of the most high-profile applications of the Federal Sentencing Guidelines in years.
crimprof.blog/explained-se...
I analyze the Sean "Diddy" Combs federal sentencing proceeding.
crimprof.blog/explained-se...
crimprof.blog/explained-se...
Explained: Sean “Diddy” Combs Sentenced to 50 Months in Prison – Crimprof Blog
crimprof.blog
October 5, 2025 at 9:09 PM
I analyze the Sean "Diddy" Combs federal sentencing proceeding.
crimprof.blog/explained-se...
crimprof.blog/explained-se...
Reposted by Sam J. Merchant
Prof. Sam Merchant was quoted by @nytimes.com about the length of sentence that rapper Sean Combs will receive at a hearing this Friday, saying that while guidelines often act as an “anchor” in sentencing, judges have significant leeway when deciding a defendant’s ultimate punishment.
z.umn.edu/ar8c
z.umn.edu/ar8c
October 2, 2025 at 2:14 PM
Prof. Sam Merchant was quoted by @nytimes.com about the length of sentence that rapper Sean Combs will receive at a hearing this Friday, saying that while guidelines often act as an “anchor” in sentencing, judges have significant leeway when deciding a defendant’s ultimate punishment.
z.umn.edu/ar8c
z.umn.edu/ar8c
"Wake up, babe, new @nicholasbednar.bsky.social article just dropped." [Genuinely me this morning.]
Unless the Senate acts, the government will shut down midnight on Wednesday.
@nicholasbednar.bsky.social evaluates OMB Director Russ Vought's plan to use this shutdown as a springboard for permanent federal workforce cuts.
@nicholasbednar.bsky.social evaluates OMB Director Russ Vought's plan to use this shutdown as a springboard for permanent federal workforce cuts.
Reductions in Force During Shutdowns
The Trump administration plans to use the pending shutdown as justification for additional RIFs.
www.lawfaremedia.org
September 30, 2025 at 10:10 PM
"Wake up, babe, new @nicholasbednar.bsky.social article just dropped." [Genuinely me this morning.]
Our drift from Thomas Paine:
“The word ‘republic’ means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only object of the government.”
“The word ‘republic’ means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only object of the government.”
August 27, 2025 at 2:52 PM
Our drift from Thomas Paine:
“The word ‘republic’ means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only object of the government.”
“The word ‘republic’ means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only object of the government.”
It reminds of the Articles of Association (1774) (which Lincoln credits in his First Inaugural as "forming" the "Union").
Clause 8: "We will . . . encourage frugality, economy, and industry . . and will discountenance and discourage every species of extravagance and dissipation."
Clause 8: "We will . . . encourage frugality, economy, and industry . . and will discountenance and discourage every species of extravagance and dissipation."
August 23, 2025 at 6:07 PM
It reminds of the Articles of Association (1774) (which Lincoln credits in his First Inaugural as "forming" the "Union").
Clause 8: "We will . . . encourage frugality, economy, and industry . . and will discountenance and discourage every species of extravagance and dissipation."
Clause 8: "We will . . . encourage frugality, economy, and industry . . and will discountenance and discourage every species of extravagance and dissipation."
Honored to be appointed to the U.S. Sentencing Commission‘s Advisory Group on Research and Data Practices. This group combines sentencing scholars with experts from other fields to inform criminal sentencing policies and practices.
www.ussc.gov/about/news/p...
www.ussc.gov/about/news/p...
August 18, 2025 at 10:15 PM
Honored to be appointed to the U.S. Sentencing Commission‘s Advisory Group on Research and Data Practices. This group combines sentencing scholars with experts from other fields to inform criminal sentencing policies and practices.
www.ussc.gov/about/news/p...
www.ussc.gov/about/news/p...
The courts’ delays lead to normalization/rationalization, then SCOTUS will be reluctant to unwind all of this.
(Same theory for a lot of this Admin’s policies.)
(Same theory for a lot of this Admin’s policies.)
What kind of "news analysis" (I use the word advisedly) would fail to note that these tariffs have been imposed unconstitutionally, a few days after the hearings in the Federal Circuit Court strongly conveyed the same conclusion?
www.nytimes.com/2025/08/03/b...
www.nytimes.com/2025/08/03/b...
Trump’s Tariffs Are Making Money. That May Make Them Hard to Quit.
www.nytimes.com
August 3, 2025 at 2:54 PM
The courts’ delays lead to normalization/rationalization, then SCOTUS will be reluctant to unwind all of this.
(Same theory for a lot of this Admin’s policies.)
(Same theory for a lot of this Admin’s policies.)
SCOTUS grants cert in another crim case involving supervised release (RICO v. US). D served her time, was on supervised release, but stops checking in (absconds). Terms of SR expire in 2021. She possesses drugs in 2022, which would violate SR terms. Is SR tolled? www.supremecourt.gov/orders/court...
www.supremecourt.gov
June 30, 2025 at 2:37 PM
SCOTUS grants cert in another crim case involving supervised release (RICO v. US). D served her time, was on supervised release, but stops checking in (absconds). Terms of SR expire in 2021. She possesses drugs in 2022, which would violate SR terms. Is SR tolled? www.supremecourt.gov/orders/court...
SG Prelogar also teed up the constitutionality of universal injunctions when NDTX was enjoining Biden left and right, and SCOTUS passed.
IANAL but looks to me like the Biden administration asked SCOTUS to take up the universal injunctions question in Texas Top Cop Shop:
www.supremecourt.gov/DocketPDF/24...
www.supremecourt.gov/DocketPDF/24...
June 27, 2025 at 6:41 PM
SG Prelogar also teed up the constitutionality of universal injunctions when NDTX was enjoining Biden left and right, and SCOTUS passed.
I know that there are new shiny objects to analyze, but for Crim people this is a good primer breaking down Esteras v. US.
I agree that the Court punted on the only real issue: considering “retribution” when revoking a federal offender’s supervised release.
open.substack.com/pub/sentenci...
I agree that the Court punted on the only real issue: considering “retribution” when revoking a federal offender’s supervised release.
open.substack.com/pub/sentenci...
Esteras v. United States Answers Half the Question Presented
This week marks the end of the U.S.
open.substack.com
June 27, 2025 at 4:00 PM
I know that there are new shiny objects to analyze, but for Crim people this is a good primer breaking down Esteras v. US.
I agree that the Court punted on the only real issue: considering “retribution” when revoking a federal offender’s supervised release.
open.substack.com/pub/sentenci...
I agree that the Court punted on the only real issue: considering “retribution” when revoking a federal offender’s supervised release.
open.substack.com/pub/sentenci...
Reposted by Sam J. Merchant
A huge amount of tech regulation is about to get done through child protection law. And, unlike in the 90s, when age verification was very difficult to do, it's a lot more feasible to do even through automated means. This is going to be a huge change for the tech industry.
The Supreme Court's fifth decision is Free Speech Coalition v. Paxton. By a 6–3 vote, the court UPHOLDS age-verification laws for online porn, holding that they are only subject to intermediate scrutiny. All three liberals dissent. www.supremecourt.gov/opinions/24p...
June 27, 2025 at 3:47 PM
A huge amount of tech regulation is about to get done through child protection law. And, unlike in the 90s, when age verification was very difficult to do, it's a lot more feasible to do even through automated means. This is going to be a huge change for the tech industry.
I haven't seen much unpacking of Hewitt, so here it is in layman's terms:
Sentenced in 2009, under *bonkers* sentencing enhancements (300+ years for bank robberies with a gun). Sentences get vacated for various reasons. Now it's 2025 and the First Step Act does away with the bonkers enhancements.1/3
Sentenced in 2009, under *bonkers* sentencing enhancements (300+ years for bank robberies with a gun). Sentences get vacated for various reasons. Now it's 2025 and the First Step Act does away with the bonkers enhancements.1/3
First (but *not* last) #SCOTUS ruling today is in Hewitt.
For what is basically a 5-4 majority (with some fracturing), Justice Jackson (joined by the Chief Justice and the three Democratic appointees) largely sides with federal criminal defendants in a complex sentencing dispute:
For what is basically a 5-4 majority (with some fracturing), Justice Jackson (joined by the Chief Justice and the three Democratic appointees) largely sides with federal criminal defendants in a complex sentencing dispute:
www.supremecourt.gov
June 26, 2025 at 9:01 PM
I haven't seen much unpacking of Hewitt, so here it is in layman's terms:
Sentenced in 2009, under *bonkers* sentencing enhancements (300+ years for bank robberies with a gun). Sentences get vacated for various reasons. Now it's 2025 and the First Step Act does away with the bonkers enhancements.1/3
Sentenced in 2009, under *bonkers* sentencing enhancements (300+ years for bank robberies with a gun). Sentences get vacated for various reasons. Now it's 2025 and the First Step Act does away with the bonkers enhancements.1/3
Reposted by Sam J. Merchant
The posse comitatus was uncontroversial until Congress made it an enforcement mechanism for the Fugitive Slave Law of 1850 and said “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required.”
June 10, 2025 at 1:58 PM
The posse comitatus was uncontroversial until Congress made it an enforcement mechanism for the Fugitive Slave Law of 1850 and said “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required.”
I agree with the Trump Administration that sometimes superimposing text on an image can add helpful context. Adding just a few words here makes for a very accurate summary of the SCOTUS decision today.
May 17, 2025 at 12:30 AM
I agree with the Trump Administration that sometimes superimposing text on an image can add helpful context. Adding just a few words here makes for a very accurate summary of the SCOTUS decision today.
We are, apparently demonstrably, post-truth.
Computational analysis of speeches given in US Congress shows a strong decline in evidence based language at the expense of intuitive language that starts in the early 80s. Trends parallel developments in income inequality, polarization and congressional productivity.
www.nature.com/articles/s41...
www.nature.com/articles/s41...
May 10, 2025 at 8:52 PM
We are, apparently demonstrably, post-truth.
One of Scalia's most fiery opinions was in Hamdi v. Rumsfeld, essentially screaming that (1) only Congress can suspend habeas (it's in Art. I), and (2) Congress didn't do so, so the detentions were unlawful.
May 9, 2025 at 8:19 PM
One of Scalia's most fiery opinions was in Hamdi v. Rumsfeld, essentially screaming that (1) only Congress can suspend habeas (it's in Art. I), and (2) Congress didn't do so, so the detentions were unlawful.
Reposted by Sam J. Merchant
Sam Merchant posts a "Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments."
He includes a wonderful summary table and more detailed commentary.
lawprofessors.typepad.com/crimprof_blo...
He includes a wonderful summary table and more detailed commentary.
lawprofessors.typepad.com/crimprof_blo...
CrimProf Blog: Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments
On April 11, the U.S. Sentencing Commission adopted proposed amendments to the Federal Sentencing Guidelines. The amendments will become effective November 1, 2025, unless Congress passes a statute ch...
lawprofessors.typepad.com
May 3, 2025 at 1:51 PM
Sam Merchant posts a "Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments."
He includes a wonderful summary table and more detailed commentary.
lawprofessors.typepad.com/crimprof_blo...
He includes a wonderful summary table and more detailed commentary.
lawprofessors.typepad.com/crimprof_blo...