Dorf on Law

The neo-Nazi party polled better than ever in Germany's federal elections yesterday, but the overall results will allow the two mainstream parties to form a coalition government that is much more stable than the uncomfortable alliance of three parties that is now going out the door.  More importantly, this means that the " firewall " that Germany's anti-Nazi parties have created around the far-right AfD will apparently continue to hold, making both President Elon Musk and Vice-Vice President J.D. Vance both very unhappy.  (Musk, in fact, decided to call the losing AfD leader to congratulate her, despite falling short.) That is very good news, relatively speaking, and I will use it as a reason to spend today not thinking exclusively about the wave of awfulness that threatens to crash over the world.  What to talk about instead?  Economic policy, of course! The one deep truth about market economies is that they are only partially manipulable by dictators, in large pa...

I have been trying for years to warn people about the dystopia that is now upon us, but now that it is here, I find myself surprisingly non-despondent.  That is partly because we are learning the answer to the fundamental question of our time -- What's the worst that could happen? -- and no longer have to imagine something even worse.  In addition, however, there are in fact small glimmers and faint flashes of what I vaguely recall is called hope. Two weeks ago, I offered some reasons to believe that all is not lost, both in a Verdict column and a companion column here on Dorf on Law .  I have now added to that body of work in a new Verdict column that was published yesterday: " More Reasons to be Guardedly Optimistic ."  That piece was somewhat longer than usual, so I will spare my readers by being relatively brief here. Probably the most important point that I make in yesterday's column has to do with whether Donald Trump's supporters will become disaffected ...

In an Executive Order (EO) signed on Tuesday of this week, President Trump sought to undercut the independence of independent agencies. The EO, titled "Ensuring Accountability for All Agencies," imposes various restrictions on such agencies. As I'll explain, some of these restrictions are permissible. Others aren't, or at least shouldn't be--unless Congress lacks the power to create independent agencies in the first place. Although the Trump 2 administration pretty clearly thinks that's the case, it isn't the current state of the law. After parsing the order, I'll explain a pathway to challenging it in court. As a preliminary matter, I've seen some online chatter to the effect that the EO purports to make the president and the AG the universal final authorities on the meaning of federal law, superior even to the courts. That's plainly not what it says. Rather, the EO makes them authoritative within the executive branch. But is even that more l...

One of the esteemed South African Constitutional Court's most famous decisions is President of South Africa v Hugo . To celebrate the new democracy, President Mandela pardoned all imprisoned women, with children, who committed non-violent offenses. Then a similarly situated male prisoner sued, claiming he had a child and this violated his right to equality. But the Court first had to answer whether the claim was justiciable. The Court said yes, though the man still lost. The Court emphasized that it could likely not adjudicate a single pardon, but this was a group pardon favoring a subordinated gender. The Court referenced other countries where pardons could be examined and looked at British law. So if Republicans feel free to argue that birthright citizenship under the Fourteenth Amendment is much narrower than heretofore understood, why aren't Democrats even more justified in asking courts to question the irrationality of pardoning those individuals who committed violence o...

My latest Verdict  column discusses the wave of resignations by Department of Justice lawyers following the demand by acting Deputy Attorney General (and until very recently Trump defense lawyer) Emile Bove that SDNY prosecutors file a motion seeking dismissal of the corruption charges against NYC Mayor Eric Adams. In addition to praising the integrity of the lawyers who resigned, I locate the issues at stake in the confrontation within the larger context of the Trump 2 administration's efforts to induce SCOTUS to adopt a super-strong version of the unitary executive theory. Here I want to address a related question: Did the DOJ lawyers who resigned rather than do Trump's dirty work accomplish anything thereby? To cut to the chase, the answer is a resounding yes. Even if some utilitarian calculus could show that by doing Trump's bidding the DOJ lawyers could have mitigated the awfulness of other aspects of the administration's actions, it would still have made sense to...

As soon as Donald Trump signed his executive order last month purporting to end birthright citizenship, the smart money was on the Supreme Court finding a way to ignore more than a century of settled constitutional law and give Trump what he wants.  The same Court that abetted his reelection at every step and then shocked everyone by inventing an excuse to give him presidential immunity would surely not disappoint him on an immigration-related issue.  Who cares how much rewriting of the law would be required?  And who cares that finding in favor of Trump would inflict gratuitously cruel harm on vulnerable people in the real world? Any time it becomes obvious that the Court will soon be looking to invent new law, people will come out of the woodwork to offer some "innovative" take on the issue.  That is one way that "off the wall" ideas become "on the wall," in Jack Balkin's famous formulation .  That it took a full 26 days for a Trump-friendly effort t...

Is Trumpism doomed?  In " How the Tide Might Turn: The Inevitable End of Trumpism ," which I published today on Verdict , I say that it is.  Many readers will probably not find my analysis to be especially comforting, however, because I do not put an end-date on the Trumpist phenomenon.  In some larger sense, of course, everything is doomed, if not when the Sun becomes a red giant then when the universe reaches the state of heat death .  Literalism is such a cheap escape hatch. My predictions of Trumpism's demise are a bit more short-term than that, of course, but in some sense my optimism-inducing historical example of an astonishingly positive political breakthrough is also achingly disheartening: the end of the Jim Crow era, a reign of terror that lasted for about ninety years before the Civil Rights movement's historic advances.  That is a very long time for human beings (other than cosmologists) to contemplate, and a lot of horrible things happened during ...

OPENING DISCLAIMER:  In addition to apologizing for the not-so humble brags in the following post, I also want to state clearly that, given our heinous and scary current events, this personal tale of legal scholarship is "small potatoes" at best. But Mike, Neil, and a few guest bloggers are doing a tremendous job bringing sanity to an insane world, and my current need is to express my truth, which happily is also the point of this post. But I do realize that these are desperate times and maybe this post is ill-timed. If so, no worries, this blog will return to normal programming soon. Also, whether the Court is a real court or not, this is not the time to question its authority, and nothing in this blog post should be taken to suggest otherwise. *********************************************************************************** On a cold winter day in early 2011, I put the finishing touches on a 50-page essay arguing that the Supreme Court of the United States does not take p...

Over the weekend, Elon Musk--who knows nothing about the law--and Vice President Vance--who certainly knows better--suggested that the Trump administration need not comply with judicial orders limiting its ability to withhold congressional appropriations (and other judicial orders) on the ground that courts lack power to interfere with "legitimate" executive action. That's a question-begging truism, however. The litigation resulting in the orders to which Musk and Vance object aims to determine whether the underlying executive actions are legitimate. In context, Musk and Vance were clearly suggesting that the administration would simply defy duly entered judicial orders. And there is good evidence that the administration is already disobeying some court orders. To be sure, it is possible that, as Professor  Ilya Somin suggested yesterday , the non-compliance we have seen so far results from "incompetence or disorganization." But I agree with Somin that the signs...