Dorf on Law

Note to readers: I am more than a bit worn down by writing about the ongoing political insanity in the US (see, for example, my columns from this past Thursday and Friday ), so today's column reflects my conscious decision to take  a brief respite  by disappearing into policy wonkitude.  And what could be wonkier than fiscal policy and retirement in the United States?  Join me, won't you?     A large amount of my academic work has focused on the Social Security system.  More accurately, I have (with one exception, noted below) analyzed only one part of what are in fact three separate parts of Social Security.  The acronym OASDI stands for Old-Age, Survivors, and Disability Insurance, which is the official name of the Social Security system.  Those three parts -- traditional retirement benefits, benefits paid to eligible family members after a worker's death, and benefits connected to specific disabilities -- support millions of peo...

Last week, in Mirabelli v. Bonta , the Supreme Court by a 6-3 ideologically divided vote invalidated (on a nominally interim basis) a California law forbidding schools from providing parents with the information that their children are engaged in gender-transitioning unless their children consent or there is a compelling need to do so. For parents who have religious objections to their children transitioning, the Court relied on last term's decision in  Mahmoud v. Taylor . For parents whose objections are not rooted in religion, the Court relied on the substantive due process (SDP) right of parents to direct the upbringing of their children, which, it said, "includes the right not to be shut out of participation in decisions regarding their children's mental health." I'm going to focus mostly on the application of Mirabelli to parents whose objection to their children transitioning is not rooted in religion, even though I recognize that it would not be difficult f...

A headline from yesterday's  New York Times initially seems shocking but, after even a moment's reflection, is not surprising at all: " Republican Senator Attacks Protester ."  Also unsurprising, but for a very different reason,  is that  The Times  has now changed its headline to this: "Senator Helps Officers Forcibly Remove Protesting Veteran From Hearing."  How was the good senator being helpful ?  The news article under that anodyne headline offers this alarming description: Video footage of the episode shows  [Brian] McGinnis, dressed in a Marine uniform with his arm hooked around a door in the Hart Senate Office Building during a subcommittee hearing on military readiness . Three Capitol Police officers struggle to grab Mr. McGinnis and pull him from the door when Senator [Tim] Sheehy, a former Navy SEAL, dives into the fracas and pulls Mr. McGinnis by the leg. “No one wants to fight for Israel,” Mr. McGinnis shouts before an audible ...

Approximately thirty news cycles have passed since people were talking about Donald Trump's State of the Union address on February 24 (only nine days ago, incredibly).  The post-speech chatter covered a variety of issues raised by that rambling flood of lies , with one controversy erupting over US Rep. Ilhan Omar's shouted response during one of Trump's staged moments.  More accurately, virtually all of the discussion of that controversy focused on the fact that Omar said something  and that Republicans responded to the fact that she said something.  What was not among the talking points was what Omar in fact said.  And that matters. Trump's stunt was yet another attempt to try to paint the Democrats as anti-American,  saying : "The first duty of the American government is to protect American citizens, not illegal aliens."  When the Democrats did not play into that nonsense and refused to stand and applaud, as the trained seals Republicans were doing,...

In my latest Verdict column , I discuss Anthropic's refusal to bow or bend to pressure from the Trump administration to allow its AI products to be used for mass surveillance or in autonomous weapons. Most of my column addresses the following multi-step puzzle: (1) Anthropic was seeking carveouts from a contract that would allow the Department of War  Defense to use its AI products for "any lawful purpose"; (2) but mass surveillance is not lawful, whereas the use of autonomous weapons under current conditions would do so little to minimize civilian casualties as to likely violate international law; (3) thus, these activities are already arguably excluded by the general provision; (4) so why did Anthropic believe it need the carveouts? In the column, I offer a number of possibilities. The short of it is that Anthropic rightly distrusted the Defense Department to correctly construe the law and steer clear of violations. In the column, I also discuss the circumstances in whi...

Yesterday, the Supreme Court heard oral argument in United States v. Hemani ,  which raises the issue whether a federal law prohibiting the possession of guns by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment. The defendant in  Hermani  admitted to using marijuana about every other day. The FBI searched his home and found a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. The prosecution's case rested solely on the defendant's “habitual use” of marijuana, which is how the government currently defines “unlawful user.” As I previously wrote here , this case should not be decided under the Second Amendment but on the basis that the government’s definition of “unlawful user” is too vague to give fair notice as to who is and who is not subject to the law. But, alas, the Roberts Court seems poised to decide this case under the infamous Bruen test, which allows the state and federal governments to...

In my last essay for this blog , I explained why the U.S. violated international law by initiating its war on Iran. I did not directly discuss whether Israel also violated international law by initiating the war, but I arguably implied that it did. Israel faced (and continues to face) more serious threats from Iran than the U.S. did (or does), but under the truce that more or less held until a couple of days ago, Iran's proxy Hezbollah was not attacking Israel, so that Israel wasn't being attacked or under threat of imminent attack. (Likewise with respect to Hamas, which has also received support from Iran). Therefore, Israel could not claim self-defense under Article 51 of the U.N. Charter. However, if I was mistaken about that assumption and Israel acted in lawful self-defense, then the U.S. attack would also have been lawful under Article 51 as collective self-defense. To be clear, I don't believe the war is lawful. Moreover, even if we could regard Israel as under actua...

Donald Trump's attack on Iran violates both international law and the U.S. Constitution. In this post and a subsequent one, I'll take seriously some arguments that, if accepted, could undercut those conclusions, not because there's any real doubt about them but because I expect Trump's supporters and apologists to make such arguments. In March 2003 I wrote a column explaining why the then-imminent attack on Iraq would violate international law but probably not violate the separation of powers under the U.S. Constitution because President Bush sought and received congressional authorization. Trump's attack on Iran is equally a violation of international law but also a clear violation of the U.S. Constitution. Today I'll discuss international law. In a follow-up essay , I'll discuss the U.S. Constitution. The U.N. Charter--which is a multilateral treaty to which the U.S. is an original party--authorizes the use of military force in precisely two circumstances...

Wikipedia tells us that "Eeyore is generally characterised as pessimistic , depressed , and anhedonic ."  Being a political Eeyore is complicated, however, for someone like me who is in fact stubbornly optimistic.  I can write something like, say, " Happy Birthday, America: 249 Years Was a Pretty Darned Good Run ," any day of the week.  I can even criticize other people's attempts to see an upside: I have honestly admired the giddy optimism of those who have consoled themselves with the idea that the Democrats can ride the anti-Trump wave of public sentiment to victories in this year's midterm elections, so much so that I have occasionally allowed myself to imagine that such a thing could happen.  But a clear-eyed pessimist is still a clear-eyed pessimist.   Yet despite such sterling Eeyorean credentials, I cannot stop myself from wondering whether there is still a way for the world to turn around.  I thus offered " Top Priorities for a Harris Pr...