Dorf on Law

In 2022, the Supreme Court of the United States handed down the most anti-originalist and irrational decision interpreting the Second Amendment in American history. In  New York State Pistol & Rifle Association v. Bruen ,  Justice Thomas, writing for the conservative Justices, struck down a 1911 New York law that gave government officials discretion to approve or deny permits for the open carry of firearms. The Court held that judges can no longer uphold gun reform laws unless the government affirmatively points to similar laws from 1791 or 1868. The Court said that judges are not allowed to balance gun rights against the public policy concerns (no matter how important) that states use to justify gun restrictions. This "text and tradition" only test will be used  by the justices this term to decide two major Second Amendment cases. One  case  that was argued late last month (Mike wrote a helpful summary here ), involves an Hawaii law banning the carrying o...

It has not been at all difficult to predict what Donald Trump would be willing to do when it comes to dismantling constitutional democracy in the United States.  Anyone listening to him for the past ten-plus years could easily see that he was willing to do anything -- obviously including breaking the law -- to obtain and hold onto power. The only reason so few of us have a nearly perfect record when it comes to Trumpian predictions is that we have not been deterred by the idea that "he couldn't possibly try to do that."  Yes he could, and he has.  All of which means that the difference between people who have predicted his actions correctly and incorrectly is the difference between people who are realistic and those who are too scared to say what they see with their own eyes. The one true outlier was Trump's temporary departure from the scene on January 20, 2021.  Those of us who correctly predicted that he would never leave peacefully were proved right on ...

How could any honest person fall for false equivalence at this point?  A true but incomplete answer to that question is simple: No honest person would.  Most of the time, people who say that the left is just as guilty as the right when it comes to anything and everything are Republican hacks.  And even if those people truly believe that Democrats are just as bad as Republicans, that is not based on an honest assessment of reality but on a firm belief that the other side must be as corrupt and evil as their side is.  The old "if you believe it, it's not a lie" defense is not in fact a defense but rather a relocation of where the dishonesty lies. My writing here on  Dorf on Law  and Verdict  has focused so frequently on the problem of false equivalence that I dare not even begin to offer a "see, for example, these columns" list of citations.  As it happens, however, yesterday's column by Professor Dorf ended with a link to two columns in ...

My latest Verdict column discusses the absurd lawsuit that Donald Trump, his two eldest sons, and the Trump Organization filed late last week against the IRS and the Treasury Department. The suit seeks damages for a former IRS employee having leaked the plaintiffs' tax data to the public. The case should be tossed out on a motion to dismiss because the statutes of limitations (SOLs) have run. Whether there will be a motion to dismiss is not clear, however, given that defending against the suit falls to the Department of Justice that Trump has weaponized against his political enemies and which has dropped solid cases against Trump allies. As I explain at the conclusion of the column, therefore, whether the case is tossed on SOL grounds will depend on whether the relevant SOLs are "jurisdictional" and thus not subject to waiver by the government as defendant. As I also explain in the column, the suit is grotesque for at least three additional reasons. First, Trump's c...

It is hard to think of a more extreme example of a federal government effort to "commandeer" state or local government action than the Department of Homeland Security's "Operation Metro Surge" in the Twin Cities. President Trump and AG Bondi disapprove of policy decisions made by Minnesota and Minneapolis elected officials, from the way they have chosen to prosecute federal benefits fraud cases to their limitations on cooperation with immigration enforcement agencies. So in order to coerce Governor Tim Walz or Mayor Jacob Frey to comply with its preferred policies, the Trump administration has deployed thousands of ICE and CBP agents to terrorize the people who voted for them (and who largely did not vote for Trump). On this reading , Minnesota's lawsuit alleging, among other things, that Operation Metro Surge violates the Tenth Amendment's prohibition on commandeering should be a slam dunk for the state. So why did Judge Katherine Menendez (a Biden app...

Because the frightening situation in the US and the world became even more harrowing over the last week, one part of which I discussed with some emotion two days ago, I want to end the week by talking about something else entirely.  My comfort zones are economics and tax policy, so today will involve a short foray into those welcoming spaces. As part of my self-healing, I will steer clear of the current US situation completely -- so completely that I will not even discuss current US tax or economic policies.  Instead, in this very short post I want to comment on yet another instance in which a very smart person who possesses genuine expertise about one subject took it upon themselves to opine about US tax and budgetary policy.  And why wouldn't they?  They are generally well informed, or so they think.  It all seems kind of easy, right? But just as things can go very wrong when (as I put it back in 2013 ) economists "commit politics," or when economists believe...

Let's begin with the obvious. The fact that Alex Pretti had a gun on his person in no way justified or excused the actions of the federal officers who murdered him because: he never brandished or reached for his gun; he was attacked before the federal officers even realized he had a gun; and he had been disarmed and was being held down when he was repeatedly and fatally fired upon. Even if Pretti had not had a legal license for his gun, and even if he had no Second Amendment right to carry a gun, the officers' actions would have been outrageous and utterly indefensible. Those facts make the arguments advanced by various Trump regime officials and apologists casting blame on Pretti for being armed utterly meritless. Moreover, as numerous people have noted, the blame-casting statements are extremely hypocritical coming from the political right in general--given their longstanding support for robust Second Amendment rights--and from the Trumpist right in particular--given their su...

I have no idea why, but lately I find myself thinking about May 4, 1970.  On that day, four young Americans were killed when government troops fired indiscriminately into a crowd of protesters.  Why would that pop into my head this week?  And other people seem to be talking about it as well.  Strange. Perhaps sarcasm is an inappropriate response to the latest horrors in the United States, but I cannot think of what would be appropriate.  In any event, I do think it is worth thinking about Kent State in today's context, because there are even more unpleasant/scary similarities than the obvious one.  More importantly, there is a massive difference that people are rightly taking as a possible reason for some hope in this darkest of hours in the United States. For those who were not alive at the time or who (like me) had simply forgotten most of the details, anti-Vietnam War protests were ongoing in 1970, especially on college campuses.  At Kent State, a...

For two decades, I have argued that the Supreme Court of the United States is not a real court of law and its justices do not perform their jobs like real judges. My argument is based on a perfect storm of factors: Our Constitution is almost impossible to amend and is incredibly old; we are the only country in the world with a two-century tradition of aggressive judicial review; our justices have life tenure; our justices are selected through an overtly partisan nomination and confirmation process; and most of the constitutional language the justices have to interpret is too imprecise to set logical limits on the scope of that interpretation. What all this amounts to is a tribunal that does not take prior law seriously enough to warrant the label “court of law.” I have set forth the detailed receipts for the conclusion that ideology, not law, dominates the Court's decisions in books, essays, articles, and blog posts. The main problem with the Supreme Court of the United States is t...