Dorf on Law

Assuming that Donald Trump's goal is simply to delay his trial on federal charges of undermining democracy as long as possible, his claim that he has immunity for acts within the outer perimeter of his official duties as President and the further claim that his actions to overturn the result of the 2020 election fell within that perimeter have already succeeded. In granting certiorari and placing Trump's case on the plenary docket for argument rather than granting cert before judgment and summarily rejecting Trump's l'état-c'est-moi view months ago, the Court has given Trump a great gift. To be sure, one can argue, as Professor Buchanan has argued on this blog (here , with links to earlier versions therein) that delay does not actually benefit Trump politically, but that argument goes to what Trump should want, not what he does want. In taking seriously Trump's immunity argument, SCOTUS has given him what he wanted when it could and should have given his frivolo

Professor Jack Balkin's new book , "Memory and Authority: The Uses of History in Constitutional Interpretation," continues the author's longstanding efforts to merge living constitutionalism and originalism into a workable and normatively attractive theory of constitutional interpretation. In this book, Balkin supports his concept of "living or framework originalism" with a deep dive into how history, memory, and tradition should and should not be used by judges and other political actors interpreting our very old Constitution.  As I've written here  before, Balkin's overaching theory, similar to Justice Kagan's, is that when the text is clear and specific, e.g., the President has to be at least 35, constitutional intepreters must follow that command, but where the text is abstract and general, then interpreters must search for the principles underlying the text and apply them to changing circumstances. Balkin's new book is mostly devoted to

During the fallout after the racist rally in Charlottesville in 2017, and in particular after Donald Trump's infamous "fine people on both sides" defense of the pro-Trump bigots who marched there, one of the late-night shows (most likely "The Daily Show," but it hardly matters) addressed the question of whether there could possibly be some truly fine people who were there to protest what the bigots were also protesting.  Who might such a fine person be? The neo-Nazis' excuse for staging the protests was the planned removal of statues of Robert E. Lee and Stonewall Jackson from what was then called Lee Park, as well as the city council's decision to change the name of said public park.  One supposes that a protester could be a Civil War buff who sincerely (but wrongly, in my view) thinks that removing statuary "erases history," or something like that.  Such a person might rightly reject the Lost Cause myth and celebrate the true Civil War hero

My latest Verdict column discusses some of the most recent events in the ongoing conflict on college campuses in the wake of the October 7 Hamas terrorist attack and the ensuing extremely deadly Israeli military campaign in Gaza. The column focuses mostly on last week's news concerning and at Columbia University. As I note, one day after testifying before Congress in a way that seemed calculated to avoid the fates of former University of Pennsylvania President Elizabeth Magill and former Harvard President Claudine Gay, Columbia President Minouche Shafik invited the police to arrest student-protesters who had erected a pro-Palestinian encampment on campus. My column uses the Columbia events as a springboard for explaining what I regard as the central legal clash there and elsewhere. On one hand, Title VI (which applies to nearly all U.S. colleges and universities because of the broad definition of federal funding) obligates colleges and universities to ensure that students are not

Shameless lying has become such a standard part of Trump/Republican politicking that it is almost impossible to keep up.  And that, of course, is the point.  When they endlessly talk about "Biden's open borders" or "the economic disaster" supposedly befalling the US (which currently is enjoying an incredibly healthy economic boom, thank you very much), they do not make those lies the main point of their rants but rather treat them as common knowledge, which they then use to build toward whatever new lie they want to push forward. Sometimes, the misstatements are truly trivial, such as Trump's claim that Republicans had been trying to overrule  Roe for 54 years , rather than the 49 years that it was actually on the books.  Wrong, but not a lie in any meaningful sense, and certainly unimportant substantively. But the problem arises when Trump fire-hoses his way through even contentious interviews.  A few months ago on NBC's "Meet the Press," for

In his column yesterday, Professor Dorf summarized and critiqued the oral argument in Fischer v. US , aka the "SCOTUS Insurrectionist Case." He ominously concluded that, based on the oral argument, there is strong reason to suspect that the Supreme Court's Republican appointees are planning to mangle statutory interpretation in a way that will result in many January 6 insurrectionists (and Donald Trump) having some or all of the charges against them invalidated. I want to note here my agreement with Professor Dorf's larger takeaway from that hearing, which he summarized in concluding the column: Fischer  is a January 6 case with implications for the pending D.C. case against former President Trump.  [T]he Justices' partisan druthers, not their methodological or even ideological commitments, appear to be driving their dispositions towards the case. Is that surprising? More than two decades after the shock of Bush v. Gore , it shouldn't be--but somehow, ev

Here's the key portion of  the statutory provision (18 U.S.C. § 1512)  that was at issue in yesterday's oral argument in Fischer v. United States : (c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. The main argument offered by the lawyer for Fischer -- who is charged under § 1512(c)(2) with obstructing the counting of Electoral votes on January 6, 2021 by participating in the violent attack on the Capitol -- is that while his client's alleged conduct falls within the plain language of (c)(2) standing alone (because he allegedly "obstruct[ed]" an "official proceeding,") the language of (c)(2) takes its meani

Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law, and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the Court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June." As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, let's call it legal levity, as we wait for the Court to inflict pain on our people and our country. Here are ten fascinating facts about SCOTUS you might not know. 1.      MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS  POLITICAL Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice Joh