Dorf on Law

At  Dorf on Law , we have taken to using the word "classic" when we republish columns, cheekily referring to television networks'  rebranding of the word "rerun"  earlier this century.  Typically, we do this over a holiday break or in the rare situation in which a day's scheduled author becomes ill and cannot write a new piece.  I in fact had a plan to publish a new column today, but revisiting the past seems much more important in this moment. Today's column is thus not a "classic" in any cheeky sense.  It is the short piece that I wrote exactly four years ago today, the morning after the world witnessed the deadly violence of the Trump-incited attack on the US Capitol as his supporters tried to end the Constitution.  There is nothing that I could write today that would better capture the essence of what happened four years ago than to share again with readers the raw shock that I tried back then to channel into something coherent. The most no...

Today--on the four-year anniversary of an attempted overthrow of the U.S. government--Congress meets to confirm the election of that insurrection's intended beneficiary and one of its leading instigators. It is a stunning turnaround that will likely be followed in two weeks by pardons for the participants. Much can and should be said about this momentous anniversary. But not by me, at least not today. Instead, for your amusement and consistent with my longstanding practice, below I reproduce the exam I gave my first-year constitutional law students last month. With four years of constitutional crises rapidly approaching, I decided I didn't need to try to anticipate hypothetical calamities from the second Trump administration just yet. So instead, I set question 1 at the end of the Biden administration (just a few weeks from now in fact) and question 3 in an imagined future Buttigieg administration with a Democratic Congress. Sandwiched in between, I used a genuine North Dakota ...

My family and I spent three days in Florence and four in Rome last week. The sights were spectacular, the food stupendous, and the people more than wonderful. My wife and I also met a close social media friend in person for the first time, and we all had a wonderful time. We also visited too many magnificent churches and places of worship to count, including, of course, the Vatican. So I had a fair amount of time to reflect on law, religion, history, and morality. Many years ago, I litigated a major parochial school aid case while at the George H. Bush DOJ, and I have written and spoken about the religion clauses throughout my career. I have what some would consider unorthodox views on the subject, but thought I might share some of them here. First, as I tweeted in what might be (no promises) my last controversial tweet ever, I said this: Leaving Rome in the morning and can’t help thinking, hopefully causing no offense, that if all the money and labor that went into the magnificent pla...

One of the most universal human cognitive defaults is the out-of-sight-out-of-mind phenomenon.  Even after passing the stage as infants where we are no longer confused about object permanence, we can quickly forget about something that is not immediately salient on an ongoing basis.  In fact, many of the cognitive biases that make up the messy field of behavioral economics (and its subfield in legal scholarship) are based on people's tendency not to think about anything that is not in front of them (or has not been there very recently). I will get back to writing directly about the ongoing collapse of the US constitutional system next week, but I thought I would begin the new year by recalling that the much-decried "divisiveness" in American political and social culture can be traced in some part to the ability of favored minorities of people to separate themselves from Others.  This has happened in every major culture at every point in history, at least based on my li...

The Roberts Court’s major question doctrine, which seriously limits the ways Congress may delegate power to the Executive, is libertarian living constitutionalism at its worst. If you don’t believe me, please read this long quote from a 1984 Supreme Court decision, Bob Jones v. United States , ruling 8-1 that the IRS was well within its discretion to prohibit tax exempt status for private educational institutions which discriminate on the basis of race.  Ever since the inception of the tax code, Congress has seen fit to vest in those administering the tax laws very broad authority to interpret those laws. In an area as complex as the tax system, the agency Congress vests with administrative responsibility must be able to exercise its authority to meet changing conditions and new problems. Indeed as early as 1918, Congress expressly authorized the Commissioner "to make all needful rules and regulations for the enforcement" of the tax laws. Revenue Act of 1918. The same provisi...

For today's classic, I'm reposting my new year's post from last year , which mostly expressed my anxiety that the Supreme Court and other actors were facilitating a second Trump presidency. I take no pleasure in saying that I was proven right. Below you'll find most of the post as it originally appeared. (I've omitted points 5 and 6.) --------------------------------- A Few End-of-Year Loose Ends -- Mostly Featuring You-Know-Who As the year draws to a close, I wanted to add a few final thoughts to the holiday and new year's wishes provided by my co-bloggers last week. (1) As readers may have seen, on Friday of last week, my Verdict column implored the Supreme Court to grant Jack Smith's petition for cert before judgment to reject Donald Trump's claimed immunity to prosecution and to summarily affirm the Colorado Supreme Court's ruling that Trump is ineligible for the Presidency under Section 3 of the Fourteenth Amendment. Barely were the electrons dr...

I don't want to let pass the death of President Jimmy Carter without notice. In my lifetime, there have been three presidents I found truly inspirational. In reverse chronological order, they were Obama, Clinton, and Carter. I continue to think extremely well of Barack Obama, but because I knew (and already very much liked) him personally when we were both law students, he doesn't count for me as a hero exactly. Bill Clinton revealed himself as a deeply flawed human being whose presidency's most notable legislative accomplishments moved the law and the country to the right, so it is easy to forget the JFK-style passing-of-the-torch excitement that his candidacy engendered. However, one cannot overlook his personal and policy failings, and so whatever glow Clinton once generated has long since faded. Carter too was an exciting candidate. Although I was a twelve-year-old during his campaign, "Jimmy Who?" was not at all a term of mockery but amazement. Meanwhile, I s...

Whether it is ending affirmative action, invalidating gun laws, or over-supervising Congress’s authority to  delegate power to the Executive, the Justices of the Roberts Court, like those who served on all the Supreme Courts before it, have played an oversized and dangerous role in our politics and our country by acting much more like legislators than judges. To put it bluntly, the Court is not a court, and its justices are not judges, and in this Dorf on Law classic ( originally published under a different title in August 2022), I summarize why. Happy Holidays! ----------------------------------------------------------------------------------------------------------------------------- Readers of this blog likely know that I wrote a book in 2012 arguing that the Supreme Court is not a court and its Justices are not judges. My thesis was and is based on a perfect storm of factors, including the institutional design of the Court and our country, historical practices, and human natur...