Dorf on Law

by Michael Dorf On Tuesday, a 2-1 decision of a panel of the U.S. Court of Appeals Fifth Circuit affirmed the district court's preliminary injunction against President Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. According to various news accounts (including this one in the NY Times ), the Justice Dep't does not plan to seek a stay of that ruling from the Supreme Court. Consequently, if the case even gets to the Supreme Court during President Obama's remaining time in office, it won't be until next Term, and probably wouldn't be decided until nearly the end of next Term, in June 2016. As I told a reporter who asked me about the timing before the Fifth Circuit ruled, that puts any SCOTUS ruling in the middle of the presidential election campaign. (Although the conventions will take place in July, by late June 2016, the presumptive nominees will likely be known .) Consequently, as the Times story linked abo...

by Neil H. Buchanan For a relatively minor and unheralded case, Comptroller of the Treasury of Maryland v. Wynne presents a surprisingly large number of interesting issues, in both constitutional law and tax policy.  Because constitutional and tax issues are the bread and (vegan) butter of the Dorf on Law team, we have been having some fun analyzing that case.  Professor Dorf has written a Verdict column and a Dorf on Law post discussing Wynne , while I have written a short piece for The George Washington Law Review and a Dorf on Law post .  Meanwhile, I published a new Verdict column yesterday that addresses additional issues raised by the decision.  Here, I will complete our blanket coverage of Wynne with some discussion of two further issues, one a simple (but unappreciated) concept in tax policy, and the other a broad question about the Commerce Clause. Suppose that you have received $1 million in taxable income in a given year.  That does not...

By Michael Dorf Article III grants federal judges life tenure and salary protection. Nonetheless, Congress may assign some business that could be assigned to an Article III court to adjudication by personnel who lack life tenure and salary protection. For example, under the so-called Madisonian Compromise, Congress need not have created any lower federal courts in the first place, and Congress has never granted the lower federal courts the full jurisdiction allowable by Article III. For example, Title 28 generally requires "complete diversity" and a minimum of $75,000 in controversy for diversity jurisdiction, even though Article III would permit jurisdiction based on minimal diversity with no minimum amount in controversy. Likewise, under Title 28 as construed by the SCOTUS, federal district courts only have federal question jurisdiction in cases in which the federal question appears on the face of the plaintiff's well-pleaded complaint, even though Article III would a...

by Neil H. Buchanan Last Wednesday, Professor Dorf's Verdict column and Dorf on Law post responded to Justice Scalia's dissent in the Supreme Court's 5-4 decision in Comptroller of the Treasury of Maryland v. Wynne .  Professor Dorf chose to focus on that dissent, in which Justice Scalia had offered one of his trademarked overstatements about the Dormant Commerce Clause (DCC), calling it "a judicial fraud."  Professor Dorf concluded that it is not, and that if Justice Scalia thinks that it is, then much of Scalia's work (re, say, anti-commandeering or state sovereign immunity) must similarly be fraudulent. Nonetheless, Professor Dorf constructed his column and post last week not as defenses of the DCC itself.  As he put it, "[o]ne might reasonably think that the DCC is on balance a bad idea or has taken a wrong turn or something of that sort," and he concludes that "[n]one of this is to say that one cannot criticize any particular DCC ru...

by Michael Dorf Ireland's decisive referendum vote in favor of recognizing same-sex marriage is obviously important, indeed historic, in its own right. But inevitably one finds it hard not to see this through one's own lens . What lessons will and should be drawn here from the Irish experience? During the oral argument last month in Obergefell v. Hodges , Chief Justice Roberts cited the example of rapid changes in public opinion in Maine and said: "People feel very differently about something if they have a chance to vote on it than if it's imposed on them by ­­. . . the courts." He thus suggested that it would ultimately be better for the marriage equality movement itself if the plaintiffs lost in the courts but won through legislation and ballot initiatives in the states. In one sense, the Chief was right. As a matter of basic psychology, having a say matters to people. Tom Tyler 's work confirms this general proposition specifically with respect to l...

By Eric Segall Last week on this blog, Mike and I  debated the role that personal values and prior law play in Supreme Court decision-making. This issue, of course, has been a major source of contention among legal academics, political scientists and Court watchers for generations. This discussion is important because we accept the Court’s authority, at least in part, because the Justices claim to be judges making legal decisions, not politicians making policy decisions. I have spent the better part of the last decade, however, trying to demonstrate that our Supreme Court is not really a court at all, and thus we should re-examine the premises that allow these governmental officials we call judges to so often make such important decisions that affect us all. One way to think about the question is to ask, “What would you do if you were a Supreme Court Justice?” But, first some background. The Supreme Court of the United States is a unique political institution. Our Justic...

by Neil H. Buchanan After the tragic Amtrak train crash in Philadelphia last week, questions arose about whether the railroad's budget cuts contributed to the deadly accident.  This, sadly, quickly became a partisan issue, and with Republicans in control of both houses of Congress, they quickly passed yet another round of Amtrak cuts.  Asked at a press conference to comment on the possible connection between funding cuts and the crash, House Speaker John Boehner responded : "Are you really going to ask such a stupid question?!"  What made the question stupid, in Boehner's stated view, was that the train had been going too fast, so there could not possibly be a connection between Amtrak funding and the accident.  If the engineer had slowed the train down, that would have been that.  Problem solved. There are a lot of ways to describe Boehner's comments.  Illogical.  Evasive.  Ignorant of the evidence.  Maybe even deliberately indifferent ...

by Michael Dorf My most recent Verdict column discusses the dissents of Justices Scalia and Thomas in Monday's SCOTUS decision in Comptroller of the Treasury of Maryland v. Wynne . They argue there that the Dormant Commerce Clause (DCC) "is a judicial fraud." As I explain in the column, this claim is quite overstated. One might reasonably think that the DCC is on balance a bad idea or has taken a wrong turn or something of that sort, but the notion that it is a "fraud" rests on the further supposition that textual extrapolation and structural inference are an illegitimate, indeed fraudulent, means of constitutional interpretation or construction. But Justices Scalia and Thomas do not make that further supposition in other contexts--e.g., with respect to federal commandeering of the states and state sovereign immunity--so it is hard to take seriously their invocation of it in this context. Here I want to address another argument made by Justice Scalia in his ...

by Sherry F. Colb In my Verdict column for this week , I examine the case of Glossip v. Gross , in which the Supreme Court is considering the Eighth Amendment validity of Oklahoma's three-drug lethal injection protocol, given that midazolam, the drug intended to prevent consciousness during the otherewise-excruciating part of the process, may not be able reliably to maintain  the inmate's unconsciousness throughout the entirety of the execution process.  In the column, I focus on Justice Alito's apparent view that the protocol--which might yield pain comparable to that associated with being burned alive--is fine (in part because the unavailability of a more reliable unconsciousness-maintaining drug is a result of pressure on drug companies by death penalty opponents), but actually burning a prisoner alive would not be fine, even if a drug were administered to the prisoner beforehand that would guarantee unconsciousness and the absence of pain throughout the process. In ...

by Neil H. Buchanan Early last month, I wrote a post here on Dorf on Law critiquing the misnamed "sharing economy" concept, in particular the business model behind the taxi-substitute company Uber.  My bottom line in that post was that Uber and companies like it are not at all examples of a new way of doing business, but are instead rather blunt methods of evading the law and shifting costs onto workers. If we continue to allow Uber and similar firms to evade laws regarding insurance, consumer protection, employee protection, and so on, then the companies that try to compete under the laws that actually exist will, of course, be at a severe disadvantage, and could be destroyed.  That will not, however, be a triumph of the internet-based economy, any more than bringing a gun to a knife fight proves that one is a superior fighter. That post elicited two especially interesting ideas on the comments board.  One commenter noted a further way in which the Uber business m...

By Michael Dorf As Professor Buchanan noted in his post on Thursday, there is a lot of agreement among the DoL bloggers. But not 100% agreement. Although the blog bears my name, I give my bloggers the freedom to disagree with me, and sometimes they do. For example, Professor Segall is more of a legal realist about the SCOTUS than I am. This is admittedly a difference of degree rather than kind. I agree with his basic characterization of the Court in his weekend post as mostly driven by values rather than law. I might quibble with the characterization of values and law as separate modalities but that would indeed be quibbling. I understand that when he says law he means formal legal materials that would lead all competent professionals to the same result. I also agree with Professor Segall's explanation for why the ratio of values to law is higher in the SCOTUS than in lower courts: the SCOTUS controls its own docket, selecting cases that have divided the lower courts or are o...