Dorf on Law

The Trump Administration should lose the birthright citizenship case that the Supreme Court heard last Wednesday.  Full stop.  Professor Dorf's analysis  last Thursday of the oral argument in that case made it very clear why the government should lose, and he did so even while giving the other side every benefit of every doubt.  Moreover, he is hardly alone in that conclusion.  Again, this is not a close call. This is very much like the Court's recent decision in the tariff case, on which both Professor Dorf and I weighed in  a bit more than a month ago.  The Trump side's argument was so ridiculous that the 6-3 decision against him was merely evidence that there are at least three Republican appointees on the Supreme Court who are willing to toss logic, law, and evidence aside to enable their political leader's worst instincts. But what are the non-legalistic stakes in those cases?  That is, what if two of the six votes had switched in the...

Last week Florida Attorney General James Uthmeier sent a letter to the NFL claiming that the League’s Rooney Rule , aimed at increasing diversity in the top ranks of NFL teams, is “blatant race and sex discrimination.” Concurrently, Uthmeier posted a video to X contending that the Rooney Rule violates Florida law. The Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney, requires among other things that a team “interview at least two external minority candidates in person for open head coach and GM positions and at least two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women. Uthmeier’s challenge is ostensibly to the NFL’s efforts to increase minority representation in its management ranks, but in reality it goes so much further. This kind of interview set-aside to promote diversity is common. For example, law firms have also implemented similar types of rules —e.g., M...

I hope that this Friday is good for everyone.  Or should I say Good?  Anyway, pleasantries aside, this will be a relatively short column to end the week, focusing on what has come to be called bothsidesism, sometimes also known as false equivalence, a topic on which I have written frequently on this blog (most recently here ). More accurately, because the term bothsidesism was coined specifically to highlight a fundamentally dishonest political move -- "I'm bad for wanting to end democracy?  Well, you once tried to get a parking ticket fixed by a friend at City Hall.  Samesies!" -- I want to explore what we might call onesideism.  The number of possible examples is enormous, but I will focus on only two here, one quite simple and the other slightly more complicated. Have Democrats as a group, or even a large subset thereof, ever glommed onto anything similar to the "Obama is a Muslim" move by Republicans?  It is true that John McCain, in the late stages of ...

There was a curious apparent methodological reversal during yesterday's oral argument in Trump v. Barbara . At one point, Justice Alito asked ACLU National Legal Director Cecillia Wang, arguing for the plaintiffs/respondents, the following question: When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up? Later, Justice Barrett asked a version of the same question, and Justice Kavanaugh referred to it. I think Justices Barrett and Kavanaugh are unlikely to side with the Trump administration in this case but that Justice Alito is very likely to do so. The rest of his questioning made clear that he thinks that, at least when it comes to the meaning of "subject to the jurisdiction thereof" in the Fourteent...

Many legal scholars and others interested in the law, including me, will undoubtedly be paying attention this morning to the oral argument in Trump v. Barbara , the SCOTUS birthright citizenship case. You can find my latest Verdict column on the case . In the column, I defend birthright citizenship as a matter of fundamental principle, not just as a matter of the Fourteenth Amendment's meaning. I'll almost certainly weigh in on the case again after the oral argument (probably on Friday), but at this point it feels like everything worth saying by way of preview has been said. Accordingly, I thought I'd start the day off with a less weighty, but more bizarre foray into the latest news. A forthcoming book about HHS Secretary RFK Jr. makes use of previously unknown private diaries to reveal all sorts of interesting tidbits, such as this gem : "In his diary, [RFK Jr.] writes about cutting off the penis of a road-killed raccoon in 2001, while his 'kids waited patiently i...

Imagine that you regularly receive notification after notification asking you to upgrade from an unpaid subscription to "premium" or some such thing on an app, a streaming service, or some other joyful convenience of modern life.  Yes, I know that this strains credulity, and perhaps I am the only person who receives such persistent messages.  No one ever complains about such things, right?  But please stay with me. After receiving a flood of such messages trying to get them to pay for supposedly superior service, a person might think: "Gee, I'm tired of these messages, but they won't go away.  But wait!  Maybe if I finally give in and buy it, this will all stop happening, right?"  If you are a person who would harbor such a hope, you might be a Democrat.  You also might be an academic.  Allow me to explain. Giving in and buying the product will obviously not stop the onslaught.  In fact, it will make matters worse, because you have now reveal...

In the Spring of 2012, the most publicly discussed constitutional law question of the day was whether the Supreme Court would strike down the Affordable Care Act. The justices had scheduled three days of oral argument--an unprecedented event in modern times. There were numerous issues in the case but almost all the attention was focused on whether Congress had the power to require Americans to buy health insurance under its Article I authority to regulate “commerce among the states.” Virtually every liberal law professor to discuss the issue publicly thought the answer was easy: health care and health insurance were trillion-dollar industries affecting the commerce of every state and among the states. Moreover, there is not a syllable in the Constitution prohibiting Congress from using economic mandates to regulate commerce. Most pundits agreed. The wonderful Dahlia Lithwick told me that she would publicly eat my book Supreme Myths if the Court said the law was beyond Congress’ com...

There are three categories of birthright citizenship recognized around the world. Two of these, citizenship based on place of birth and citizenship inherited from parents at birth, have roots dating back hundreds of years . The third category, hybrid citizenship rules, evolved in the twentieth century.  The United States recognizes inherited citizenship for children born abroad to U.S. citizens , but it has always relied primarily on birthplace citizenship. For over a century, the Fourteenth Amendment of the U.S. Constitution has, with limited exceptions, granted citizenship to everyone born in the United States . Congress assumed this simple birthright citizenship rule when it enacted and later amended the Immigration and Nationality Act (INA). That assumption now permeates our immigration and citizenship statutes . This reliance on birthplace citizenship is now being questioned. On the first day of his second term, President Trump issued an Executive Order that would overturn...

In recent months, I have again become obsessed with (and depressed by) the phenomenon of self-styled manly men exulting in acts of cruelty.  As the Trump immigration crackdowns spiraled out of control, one of the most notable aspects of right-wing propagandists' response was their vulgar desire to ridicule and dehumanize their victims, all the while delighting in the spectacle of the ugly meanness of it all. Kristi Noem (aka "ICE Barbie") may be gone, but the image of Noem standing in front of caged prisoners in El Salvador -- prisoners who had received no due process, meaning that she (and we) could not possibly know whether they were guilty even of immigration violations (which are civil, not criminal , absent additional facts) -- is permanently etched into my mind as an example of how toxic masculinity can metastasize and be embraced even by non-men.  Worse still, rather than claiming that what was happening in that photo was somehow not terrible, Noem's social me...