Dorf on Law

Last week, the Supreme Court granted   certiorari  in   Trump v. Barbara . A federal district judge in New Hampshire preliminarily enjoined  President Trump's Executive Order  (EO) purporting to deny citizenship to children born in the United States to non-citizen parents unless at least one of those parents is a permanent resident. In accord with every other ruling by lower court judges who have addressed the merits of such claims, the judge concluded that the plaintiffs (as representatives in a provisionally certified nationwide class action on behalf of all children who would be affected by the EO) had established a likelihood of success on the merits of their claim that the EO violates both the Fourteenth Amendment's Citizenship Clause and   8 U.S.C. § 1401 (a), which, in language that mirrors the Fourteenth Amendment, makes "a person born in the United States, and subject to the jurisdiction thereof" a "citizen[] of the United States." The governm...

Having wasted  spent two and a half hours of my day listening to yesterday's oral argument in Trump v. Slaughter , I have less time than I typically spend writing up my musings for this blog, so I'll confine my commentary to four bullet points: •    Bottom Line : As I explained yesterday , given the Court's recent actions on the emergency docket, I went into the oral argument expecting that at least five and very likely six Justices intend to overrule Humphrey's Executor and thus invalidate good cause removal protection for Federal Trade Commissioners, with implications for most if not all independent agencies, subject to an ad hoc exception for the Federal Reserve. Nothing that happened during yesterday's oral argument changed that expectation. •     Respondent's Counsel Boxed Himself In : A key piece of the respondent's argument is that Humphrey's Executor is a 90-year-old precedent that should be preserved absent the sorts of considerations that just...

Today the Supreme Court will hear oral argument in Trump v. Slaughter , which presents the question whether the statutory prohibition on presidential removal of a Federal Trade Commissioner except for good cause is constitutional. The federal district court said it is and thus enjoined the defendants from giving effect to President Trump's purported firing of FTC Commissioner Rebecca Slaughter without cause. The D.C. Circuit then declined to stay the injunction, because, as that court explained, "ninety years ago, a unanimous Supreme Court upheld the constitutionality of the Federal Trade Commission Act’s for-cause removal protection for Federal Trade Commissioners. See  Humphrey’s Executor v. United States . " The outcome of the case is thus essentially a foregone conclusion, right? Yes, but in the wrong direction. The Supreme Court has twice signaled that it intends to use the Slaughter case to overrule Humphrey's . In its per curiam opinion in May, in Trump v. Wilc...

The Republicans on the Roberts Court love to lecture us on the importance of history to constitutional interpretation. But as almost everyone knows, the conservative justices use history only when it suits their purposes and ignores it or distorts it when history cuts against GOP goals and priorities. When it comes to voting rights and redistricting to ensure partisan advantage, the Court acts like our blatantly racist past that prevented racial minorities from being elected to state and federal legislatures never happened. History for me but not for thee. All of which brings us to Thursday's two-page "opinion" in Abbott v. League of  United Latin American Citizens.  overruling a 160-page lower court decision written by a Trump nominated judge after a nine-day evidentiary hearing finding that Texas illegally used race to give the GOP maximum partisan advantage in the state. Texas decided to redistrict in advance of the important 2026 mid-terms only after President Trump ...

In this relatively short week-ending column, I return once again today to the doom loop destroying US higher education.  Rather than analyzing yet another "deal" that yet another hapless university administrator has announced while smiling wanly for the cameras, however, it recently occurred to me that it might be a good idea to step back and ask a fundamental question: Does this truly matter, or is it merely what I happen to care about? After all, it is always possible for people to become convinced that everyone else also cares about something that is in fact quite unimportant or at least niche.  When my nephews were tweeners, for example, they could go on and on (and on and on and on) about Star Trek weaponry in excruciating detail.  Plenty of their peers -- and even more overgrown former tweeners -- cared passionately about those things as well.  I am not on any social media, but I hear that people spend hours discussing TikTok dance videos.  Even ...

Last week, Costco filed a lawsuit  in the Court of International Trade (CIT) against U.S. Customs & Border Protection (CBP), its Commissioner, and the United States, seeking declaratory and injunctive relief from the same tariffs currently at issue in the Supreme Court cases that were argued last month . Costco doesn't make any new arguments for the tariffs' unconstitutionality, instead relying on the CIT's own prior ruling in one of the cases now up at SCOTUS. Why now? Costco explains in its brief that the deadline for "liquidation" of Costco's tariffs is rapidly approaching. Costco acknowledges that CBP itself has the discretion to delay liquidation. It also acknowledges that even after liquidation, it has another 180 days in which to file a protest but, citing Federal Circuit precedent, its complaint alleges that a CBP liquidation might not be protestable even if unlawful. Judicial relief before liquidation, Costco contends, is necessary to preserve its...

For many years now, I have started just about every day of my first-semester-first-year Constitutional Law class with 5-10 minutes of "Con Law in the News." I encourage students to report on some story in the news that raises a constitutional issue, and we discuss it. Some days there is so much regularly scheduled material to cover that I skip Con Law in the News, but I have difficulty recalling any day over the course of the period in which I have been following this practice in which there were no newsworthy con law issues that we could have discussed. During the past semester, I had to put an arbitrary end to the discussion of Con Law in the News because, if I didn't, we would never get to the regularly assigned material. Even so, and even though the current semester started in late August--when we were already seven months into the second Trump administration--I was surprised at just how much fodder we had to discuss. To be sure, in the spring 2025 semester, I taught ...

In this column, although I will first make an announcement that is all about me, I will quickly explain the potential broader significance of the news, which will then allow me to return to a question that I posed last week about the absence of a " higher education gold rush " in 2025.  In short, I am still trying to figure out why -- even in the most promising environment in history for non-US universities to pick off American researchers and thus boost their own absolute and relative stature -- no one seems to be pursuing that winning strategy. But first, the personal news.  Some  Dorf on Law  readers will surely recall that I have been moving around the non-US world for the past few years, most recently moving to Dublin, Ireland, this past Spring.  There will soon be some updates about all of that, but today's news is not about permanently relocating to a new place.  Instead, I am happy to announce that I have accepted an offer to become a Senior Researc...

In a well-known scene in the well-known (but not very good) 1997 movie Air Bud , the protagonist golden retriever is permitted to play in a league game alongside his human teammates because the rule book contains no rule forbidding dogs from playing. The logic is absurd, of course. There is likewise almost certainly no rule forbidding agents of a team from surreptitiously spiking the opponents' water bottles with sedatives that sap their energy, but that doesn't mean that such tactics are permitted. Despite the silliness of its premise, Air Bud led to four sequels and a remarkable nine spinoffs: seven "Air Buddies" movies featuring the original Air Bud's puppies; and two Christmas-themed "Santa Paws" movies. Remarkably, a fifteenth Air Bud movie is slated to be released next year . But perhaps that film should be considered the sixteenth in the franchise, because there is an Air Bud drama currently playing out in Missouri--just not on film. It is the l...