Dorf on Law

This will be my third and final rerun for the week, but, as with the other two, it comes with a preface based on current events. On February 11, I published "Wait, Can He Actually Do That? Part 5: Transgender Athletes Under Title IX," in which I described and critiqued President Trump's Executive Order  banning transgender girls and women from participating in girls' and women's sports at federally funded educational institutions, ostensibly under the authority of Title IX. I have reproduced that essay below. But first, there's an update in the ongoing backlash against trans rights. Yesterday, in United States v. Skrmetti ,   the Supreme Court, by a 6-3 vote on ideological lines, upheld Tennessee's ban on gender-affirming care (puberty blockers and hormones) for minors against an equal protection challenge. In principle, the case does not have direct implications for the interpretation of Title IX. Indeed, the Court goes out of its way to say that it need...

I continue to be on break, so today I'm running another "classic" column from my "Wait, Can He Actually Do That?" series--my first foray into the Trump administration's unlawful funding cutoffs to universities. This one concerned Columbia and originally ran on March 10, 2025 . It was then also published (with a slightly different title) in The Chronicle of Higher Education . Ten days later, the NY Review of Books published a letter  from an ideologically diverse set of signatories decrying the Columbia funding cutoff as a violation of the First Amendment and federal statutes., David Cole, Eugene Volokh, and I spearheaded that letter, which borrowed most of its statutory analysis from the column reproduced below. Columbia then capitulated to the administration's demands--more or less. But the AAUP, on behalf of its members whose grants were cut, sued. On Monday, a Trump-appointed federal district judge denied the preliminary injunction that the AAUP sough...

Both Professor Buchanan and I are otherwise occupied this week, so we'll be posting "classic" columns rather than providing new content--except to the extent that breaking news is too tempting to resist, Prof Segall posts new content, and/or, as today, I preface the reprise with a brief update. Below you'll find a column that originally ran on the blog on January 24 of this year under the title "Wait, Can He Actually Do That? Part 1: Overview and the TikTok Executive Order." I'll begin with a brief updating preface. President Trump's illegal suspension of the TikTok ban described below expired in April. Thus, on April 4, Trump issued another Executive Order extending the ban's suspension until June 19, which is three days from today. There is every reason to expect that the ban's suspension will be extended yet again, in light of the latest truce in Trump's on-again-off-again trade war with China. The fact that we simply take for granted...

Last week, the Supreme Court denied a petition for  certiorari  in  Snope v. Brown   despite the fact that four Justices appeared to want to grant review. That's curious because it takes only four votes to grant a cert petition. In today's essay, I speculate about the voting dynamic before briefly turning to the merits of the case, which raises the question whether the Second Amendment invalidates state restrictions on possession of assault rifles. As I'll explain, the Justices who apparently wanted to answer that question in the affirmative--and thus recognize a right to "keep and bear" assault rifles--have a pretty good argument under existing precedent. That conclusion illustrates what's wrong with the existing precedent. A Maryland law   bans the sale or possession of assault weapons, including AR-15s, AK-47s, and similar semi-automatic rifles. (Federal law not challenged in the case bans fully automatic rifles, i.e., machine guns.) Some Maryland residents...

Paul Krugman's daily substack post this morning ended with this: "If you’re a Democrat who wants to ignore the ongoing assault on democracy so we can talk about Medicaid — important as it is — you’re hiding your head in the sand.  This is the moment. Everything is on the line, right now."  That post landed in my inbox only moments after I had groaned my way through an op-ed in today's  New York Times : " Elizabeth Warren: Trump Is Right About This One Thing ."  And that one thing is: "Abolish the debt limit." Obviously, the Warren op-ed was in the works for awhile, so the near-perfect coincidence of timing is nothing more than that.  Even so, it is not as though the debt ceiling should have been anyone's priority five, seven, or ten days ago.  At best, Warren might have been trying to get  The Times  to run her piece for a long time, and the opportunity happened to arise just when the debt ceiling might be the least consequential issue that an...

The central thesis of Professor Leah Litman’s wonderful new book , “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes,” is stated succinctly on page two: The Supreme Court is running on conservative grievance, fringe theories, and bad vibes. A majority of the justices are convinced that Republicans are being treated unfairly by the increasingly diverse society that no longer shares their views and as their party demands more and more to make up for this travesty … the Republican justices are more than happy to give that to them. Professor Litman's book covers most of the important constitutional law issues of our day. She argues that Republicans believe they are victims when it comes to the separation of church and state, gay rights, voting rights, reproductive justice, the role of money in local, state, and national elections, as well as the GOP’s desire to create a strong and unitary Executive. In addition to comprehensively discussin...

One unanticipated blessing of being a policy nerd is that it is allowing me to turn my attention away from the ongoing rise of American fascism, at least for small amounts of time.  Today, therefore, I will not address Trump's militaristic display of dictatorial intent in Los Angeles, leaving that topic to other  Dorf on Law  columnists (starting with Mark Kende’s piece yesterday, and perhaps others yet to be written).  Here, I want to return to one of my favorite rant-inducing topics: debt and deficit hysteria.  Trust me, this will be comparatively soothing.  (And I've even received emails from readers asking me to write more often about economics, so you're welcome.) Two weeks ago (May 30), I asked (only semi-rhetorically): " Is It Time to Become a Deficit Scold? " Had I been in a better mood, I might have changed the title to: "Good Deficits Are Good - Duh!" I ran through the usual points that are mostly likely familiar to many long-time readers, ex...

On CNN , former Department of Homeland Security official, and conservative politician, Ken Cuccinelli echoed the Trump Administration talking points to justify National Guard deployment in Los Angeles. Normally, the Posse Comitatus Act, 18 U.S.C. Sec. § 1385 (1878), would not allow the federalized military to engage in ordinary law enforcement activities. Indeed, it makes use of the military for domestic law enforcement a crime. One major exception, however, is the Insurrection Act of 1807, 10 U.S.C. §§ 251-255 . That Act would need to be invoked to support Defense Secretary Pete Hegseth's outrageous suggestion that the Marines could be called in to supplement the Guard's presence. But for now President Trump is not using the Insurrection Act to deploy the Guard troops. Instead, he has federalized the National Guard under 10 U.S.C. § 12406 . This provision theoretically allows the National Guard to execute federal laws. Cuccinelli said that Guard enforcement implements our imm...

Here on the blog last week , I expressed puzzlement over the Department of Justice's investigation into allegations that the Harvard Law Review (HLR) has been practicing race-based and sex-based affirmative action for some of its membership slots and in its selection of articles for publication. I explained that Titles VI and IX of federal civil rights law don't apply to HLR because it is a separate entity from Harvard Law School and Harvard University. Under the case law as I read it, there are insufficient financial ties (essentially none) between those federally funded institutions and HLR to trigger federal civil rights law, and HLR itself does not receive any federal funds. I also explained that because HLR editors are unpaid and not "employees," Title VII also doesn't apply. A number of my fellow constitutional scholars (including Vikram Amar and Eugene Volokh) expressed to me the view that HLR might be covered by  42 U.S.C. § 1981 , which was enacted during...