Dorf on Law

Because of the endless churn of the news cycle, the capitulation by three lame-duck Republican Senators to the Todd Blanche nomination not even three weeks ago is now very old news.  In a Dorf on Law   column last week, I discussed those three poseurs -- Bill Cassidy, John Cornyn, and Thom Tillis -- who preened about for a few weeks claiming that they might possibly, maybe oppose the obviously corrupt and dangerously anti-constitutional Blanche as (non-Acting) Attorney General.  They all made plenty of noise and then, completely predictably, fell in line. Why come back to that today?  After all, the world now must contend with a declared trade war between Canada and the United States, as well as [quickly reloading the main page of the  New York Times  website to see what fresh hell awaits] the evil expansion of ICE activities to deport record numbers of powerless people (now specifically targeting people who are not criminals, thus no longer even pretendi...

Author Disclaimer : The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of  our school of thought.                                                                 ************************************** In a provocative new essay  forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimat...

Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday  the Court issued a per curiam opinion  in Trump v. California  allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received. Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais   ( further ) gutted the Voting Ri...

Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a  federal civil rights suit , and Roy Cohn, who  schooled Trump  in the art of never admitting defeat while personally savaging and countersuing opponents.   But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.      In his legendary biography of New York’s master builder,  The Power Broker , Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders.  No matter the losses in cou...

The lead news story for most of the day at  The New York Times on Wednesday was: " U.S. Debt Hits $40 Trillion as America’s Borrowing Binge Continues ."  Again, that was a news story, not an editorial.  The US is on a borrowing binge , you see, and if we are to believe that  The Times  upholds its professed standards of journalistic objectivity, that is a factual and neutral statement. I will not bury the lead/lede here. There is no reason to panic about the US debt situation.  I will return to that conclusion in some detail below, but the key point up front is that there is nothing new in what The Times reported on Wednesday, other than the number $40 trillion itself, which Paul Krugman correctly described as "a number that is big and round, but otherwise has no special significance." The last time The Times went back to the debt fear-mongering well (on May 9 of this year), I offered a prediction: "The next trillion in gross debt that the US will...

In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here . Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes. But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable. In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in r...

One of the smaller dramas of recent weeks was the US Senate's confirmation of Todd Blanche as Attorney General of the United States (AG).  I must emphasize that virtually no Trump-era stories are small by historical standards, meaning that "small er "in the previous sentence should be understood in an even more relative sense than usual.  It was a drama that provides some important lessons, however, especially in explaining the continued refusal of Republicans in political office to stand against the Trump regime. It is unlikely that anyone reading this column needs to be reminded that Blanche was a truly terrible choice to be anywhere near the Department of Justice (DOJ).  Even so, a few lowlights will set the appropriate context.  The man who failed while defending Trump against felony charges in New York was rewarded with the runner-up job at DOJ, during which time he took the lead in derailing the Epstein investigation.  His efforts there included meeting i...

In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola. Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to tur...