Dorf on Law

Critiques of judicial supremacy and proposals limiting the Supreme Court's power are common on the left side of the legal academy these days. For most of the last sixty years, similar calls to control the Court came from conservatives upset about the liberal decisions of the Warren and early Burger Courts. Even during the Rehnquist Court era, from 1986-2006, most scholars on the American left were willing to roll the dice on the Supreme Court largely due to scholars like Laurence Tribe, Erwin Chemerinsky, and Akhil Amar, among many others, who came of age in the shadow of the Warren Court. But with the Roberts Court erasing many of the most important liberal decisions of the last 60 years and instituting a Republican Party list of priorities on the country, serious institutional critiques of the Court now come almost exclusively from liberals and progressives.  Given the political nature of constitutional law, this academic role reversal should not surprise anyone. We like to think...

Last week, Professor Dorf reminded us of "the risk of getting distracted by the relatively inconsequential nonsense emanating from Trump and his administration."  The day before, I wrote a column in which I focused on one of the most important issues of our time -- the Trump regime's dystopian deportation system -- writing that "at the very least, it is clear that the US is acting in ways that we once would have described as only imaginable under an authoritarian regime like China's."  Agreeing with the point that Professor Dorf would make the next day, I added: People like me follow the minutiae of US news cycles, and we chase shiny objects like Trump's failing health, his obviously false promise to pay people $5000 each if Republicans win the midterms, his obsession with erecting monuments to himself, and so on.  But while all of those stories are important in their own ways, the touchstone when assessing the current government should be that the US ...

To the relief of Greenlanders, Danes, and everyone who counts on NATO's continued existence, on Tuesday President Trump, Danish Prime Minister Mette Frederiksen, and Greenland Prime Minister Jens-Frederik Nielsen signed a three-party agreement that effectively and, by its terms, permanently, resolves the crisis Trump precipitated by his threats to use any means, including military force, to seize control of Greenland. As has been widely reported (e.g., here ), the agreement falls well short of the "ownership" Trump claimed that the United States needed in order to ensure the national security advantages of a military presence in Greenland. Indeed, it is hardly clear that the agreement represents any significant change from the status quo ante. So, naturally, the White House is touting the deal as a "historic," "unprecedented," and "landmark agreement" that "comes at no cost to American taxpayers." No cost, that is, except for the ...

In New York State Rifle & Pistol Association, Inc. v. Bruen , the Supreme Court set forth a new test to determine whether a particular firearms regulation is in accord with the original meaning of the Second Amendment: “history and tradition.” At the critical step of the inquiry, the Court would essentially look to whether the challenged firearms regulation has a historical analogue. This “history and tradition” test is the new rage—it has found footing in Second Amendment jurisprudence, but the Court also employed this type of reasoning in Dobbs (reproductive rights) and Kennedy v. Bremerton (the Establishment Clause). Several scholars have criticized the “history and tradition” inquiry as unworkable and as not appropriately capturing the contours of legislative power . I agree with these criticisms, but I write to make a separate observation—about the relationship between the newest form of originalism and textualism. My claim is that the “history and tradition” inquiry of or...

On Friday of last week, President Trump announced via Truth Social that he was "banning . . . CNN, MS NOW . . . and Politico . . . from the White House" in response to what he regards as their allegedly inaccurate reporting about him and his administration. Needless to say, the ellipses and words outside the quotation marks mask the much more piquant way in which the president expressed himself. To wit: In short order, reporters for the three news organizations found that their "hard passes" granting access to the areas of the White House ordinarily open to properly credentialed journalists with security clearances had been deactivated. Wasting little time, yesterday the three news organizations filed a lawsuit. The complaint is compelling. It sets forth three distinct legal claims: (1) because there is a liberty or property interest in the hard pass, it cannot be canceled without notice and an opportunity to be heard (i.e., procedural due process), both of which w...

I'm pre-writing today's post on Sunday because by the time you read this, it will be Yom Kippur, and I'll be atoning for my various sins. Accordingly, I'll keep it short. I have a new article that addresses two related phenomena: (1) Trump's attacks on three categories of nongovernmental institutions that are essential to democracy (media organizations, universities, and law firms); and (2) the ways in which constitutional case law pays lip service to the importance of such institutions but in practice gives them no distinctive protection. I also explain the dual-edged nature of an institution's size: it to some extent can insulate an institution from attack but it also makes an institution more vulnerable because the larger an institution the more it depends on good-faith interactions with the government. The article concludes with some reform proposals. The article won't be published in final form for nearly a year. Such are the vagaries of law journal pub...

My latest Verdict column was published on Tuesday. It addresses President Trump's proposal to pay every adult U.S. citizen $5,000. To summarize: Trump has no power to do this without congressional authorization; such authorization would be a very bad idea because injecting over a trillion dollars into the economy would fuel inflation that would likely eat up any benefits; the giveaway would be regressive because inflation is felt more by the poor than by the wealthy. The new column follows on the heels of my previous Verdict column , accompanying essay on this blog and then a follow-up essay on the blog on Trump's renaming of Lake Ontario. In the Trump-is-stranger-than-fiction category, my first blog post on the Lake Ontario issue was titled When Will Trump Try to Change "New Mexico" to "New America?" The answer turned out to be six days later . It is no doubt entertaining to ponder the legal and policy questions posed by some of Trump's most outlandi...

Not long ago, traveling to the United States for business or academic purposes was a relatively simple matter for non-US citizens.  Perhaps more accurately, despite all of the complexities involved in obtaining the relevant documents, bookings, funding, and so on, there was at least one question that was so basic and obvious that it simply never came up: Will I be turned away at the border, or even detained for days, weeks, or months? Those days are long gone, ending on January 20, 2025.  And although most of the Trump regime's activities are aimed at poor people and people who are not White Christians, there have been notable examples of people who do not fit the profile, including a 35-year-old Canadian actress who was held in detention   for twelve days  after applying for a temporary visa to work in the US.  She had no criminal record. Similarly, a British couple in their sixties were both held in detention for 42 days, with the wife held even though only h...