Dorf on Law

Yesterday, President Trump signed an executive order titled Restoring Equality of Opportunity and Meritocracy . It aims to eliminate liability for race-neutral (or otherwise relevantly neutral) policies that have a disparate impact based on a protected characteristic. Wait, can he actually do that? The short answer is no. Title VII of the 1964 Civil Rights Act is the federal statute that forbids employment discrimination based on race, color, religion, sex and national origin. It includes a provision,  42 U.S.C. § 2000e-2 (k), that expressly recognizes disparate impact liability. An executive order cannot repeal a statute. The longer answer, however, is "maybe Trump can do this with the aid of a conservative activist Supreme Court." In a concurrence in Ricci v. DeStefano  (2009), Justice Scalia warned of a coming evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act ...

President Donald Trump recently took to social media to call  Federal Reserve Board Chair Jerome Powell a "major loser" for failing to lower interest rates "NOW." Read against the backdrop of Trump's statement that Powell's "termination cannot come fast enough" and National Economic Council Director Kevin Hassett's confirmation that the administration is studying whether Trump can fire Powell, Trump's broadsides against Powell wreaked further havoc on Wall Street. Understandably so. The Fed is insulated from direct political control because of the worry that politicians will favor loose monetary policy in order to goose the economy, even at the risk of causing damaging inflation--or, in extreme circumstances, catastrophic hyper-inflation. There is every reason to worry that this is exactly what Trump would unleash were he to oust Powell in favor of a more compliant lackey who would do his bidding and lower interest rates NOW (assuming the ...

  So far, every time the Supreme Court has considered a challenge where conservative religious rights and LGBTQ rights were at odds, it has favored conservative religion. That is likely to be the case again in Mahmoud   v. Taylor, whose oral arguments were held Tuesday morning. In Mahmoud, parents argued that it violates their religious liberty if their children in public school read books with LGBTQ characters. The trouble started when the Montgomery County Public Schools in Maryland added LGBTQ-inclusive books to its English curriculum. The alphabet primer Pride Puppy , for example, follows a little puppy who gets lost in a Pride Parade. In Uncle Bobby’s Wedding, a child attends her much-loved uncle’s same-sex wedding. Instead of losing an uncle, she gains another one! Although the district originally allowed parents to pull their children when these books were read, it changed its mind on the grounds that the option proved too onerous and led to too much absenteeism. I...

Suddenly, knowing some things about the Federal Reserve is very important.  The latest gyrations in the financial markets were caused by Donald Trump's rediscovery of Fed Chair Jerome Powell as a political target.  Trump's previous Fed-related rhetoric had generally followed the timeworn pattern set by most presidents: Blame the Fed for whatever bad thing was happening, make noises about how the Fed should stop being so obtuse, and then move on. Not this time.  Now, Trump is openly talking about firing Powell, which is plainly illegal and is terrible in every substantive way as well.  At some point, I will write at length about those substantive matters, but today's discussion is about a narrow slice of this story, which is how Trump's top economist is aiding and abetting Trump's economically destructive impulses.  I wrote on April 10 about Trump's two highest profile economists, Peter Navarro (the anti-trade trade advisor) and Kevin Hassett.  Hassett's jo...

Just before 1 AM on the morning of Saturday, April 19, the Supreme Court issued an order directing the U.S. government not to remove (i.e., send to El Salvador) any member of a group of Venezuelans currently detained in Texas pending the Court's further order. The Court acted early Saturday morning because it appeared that the Trump administration was about to violate the limits on removals set forth in its  April 7 per curiam opinion . That opinion made clear that if the government wishes to remove the Venezuelans, it must provide them with notice of that intention "a reasonable time" before doing so "and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs." The Venezuelans in detention had received papers in English (which many do not read or speak) notifying them of imminent removal. Nowhere did these notices state that a hearing via habeas was an option. The ACLU promptly sued, and when the distr...

As John Oliver says at the top of each episode of Last Week Tonight , it has been a busy week. So busy, in fact, that for today's essay, I'm going to do a lightning round of observations on three of the major developments in just the last couple of days. 1. Contempt Let's start with Judge Boasberg's opinion in J.G.G. v. Trump , which "concludes that probable cause exists to find the Government in criminal contempt" for its willful failure to comply with his orders to halt and reverse flights carrying Venezuelans to El Salvador. Contempt sanctions run against individuals, not the government as a whole, however, and so Judge Boasberg is now trying to pry from the government information about who exactly made what decisions. Will that work? Assuming the proper defendants can be identified--which could require cooperation from the government that may not be forthcoming--there's good news and bad news. The good news is that in a criminal contempt proceeding, a ...

On Tuesday, President Donald Trump threatened to revoke Harvard's tax exempt status, posting on Truth Social: Perhaps Harvard should lose its Tax Exempt Status and be Taxed as a Political Entity if it keeps pushing political, ideological, and terrorist inspired/supporting ‘Sickness?’ Put aside the absurd suggestion that Harvard is pushing "sickness" (in scare quotes even in Trump's original for no apparent reason) that is inspired by or in support of terrorism. What ground would Trump or his administration have for this action. In other words, . . . wait, can he actually do that? Professor Buchanan is the resident tax law expert here at Dorf on Law , but he is off this week. Ordinarily, I would just leave the issue for him to address when he returns next week, but given the pace of our stranger-than-fiction reality, by then we will no doubt have moved on to discussing an even more insane proposal from the Trump administration, like whether the president can, by execut...

[N.B.   My latest Verdict column,  Fighting the Last (Trade) War: Trump Ignores the Coming AI Revolution , was published yesterday. It explains that even in the unlikely event that President Trump's tariffs--or even more rational tariffs--boost U.S. domestic manufacturing, they will not lead to very substantial increases in domestic manufacturing employment, due to automation. Meanwhile, I describe how the prospect of imminent AGI (artificial general intelligence) would lead a responsible presidential administration to focus on preparing for an enormous resulting economic disruption. Trump's 19th-century version of industrial policy is thus extremely poorly suited to our times. I urge interested readers to click on the link above. For today's essay here, however, I turn to a different subject.] Harvard Had No Choice ( cross-posted in The Chronicle of Higher Education ) Harvard University's rejection of the Trump administration's April 11 demand letter (styled as a ...

The Trump regime has chosen defiance over compliance with the federal court order to facilitate the return of Kilmar Armando Abrego Garcia from the inhumane El Salvadoran prison to which he was mistakenly sent. Yesterday, during an Oval Office meeting between Presidents Donald Trump and Nayib Bukele, both stated that Abrego Garcia would not be coming back. There was no indication whatsoever that Trump had asked Bukele for Abrego Garcia's return and that Bukele had then said no. If that had happened, the DOJ could perhaps plausibly argue in court that it had done what it could to rectify its mistake but had failed. However, Trump appeared perfectly content with--and for all we know may have actively sought--Bukele's decision to keep Abrego Garcia. Meanwhile, Trump regime immigration hardliner Stephen Miller declared , without any evidence, that the regime had not made a mistake by sending Abrego Garcia to El Salvador in violation of a 2019 administrative judge's ruling forbi...