Dorf on Law

By Eric Segall The scene is the Oval Office. The date is January 21, 2017. President Trump is swinging a golf club when his intercom goes off. A soft female voice says: “The Chief Justice is here to see you Mr. President, Sir.” Trump responds, “Okay, let him sweat for a few minutes.” Trump continues to swing the club and on his fourth effort takes a chunk out of the wall. He shakes his head and goes back to the intercom. “Sarah, make an appointment with my golf pro for 2:00, and send the Chief in.” Roberts walks in, looks around the room, sees the dented wall. Trump returns to his desk and with great indifference says, “Good morning, Chief, sit down. How are you?” Roberts sits in a very small chair in front of the huge desk. “Fine, Mr. President .” “Good, you're fired.  I am displeased with your work as Chief Justice. You have no managerial skills or experience. I wouldn't hire you to clean a courthouse in Poughkeepsie!" Roberts pauses...

by Michael Dorf So much of what Donald Trump says is nonsense that taking his pronouncements seriously feels like a sucker's game. But as the likelihood that he will secure the GOP nomination has recently increased, simply ignoring him is untenable for anyone interested in public policy. One approach would be to point out the nonsense, vapidity, and internal contradictions in what Trump says. That is a full-time job by itself. Consider Trump's speech on foreign policy on Wednesday. The biggest piece of nonsense was the following statement: "I was totally against the war in Iraq, very proudly, saying for many years that it would destabilize the Middle East." Politifact rightly rates this statement "false." At best, Trump's pre-war stance could be called ambivalent. That's better than having been an enthusiastic supporter, but it doesn't draw the contrast he apparently intends to draw with Hillary Clinton, who, as a Senator, voted to authoriz...

by Neil H. Buchanan In the midst of the ongoing drama of the presidential campaign, it is easy to forget that there already are people who have been sworn in as elected officeholders, and that those people are doing their jobs almost completely without public scrutiny.  Because the House of Representatives has been rigged to have a nearly permanent Republican majority, the House has essentially become like an incurable rash: annoying and sometimes even dangerous, but not worth thinking about very often.  Even without the presidential primaries to distract us, focusing on the House might not seem like a high priority. In fact, unless Paul Ryan agrees to leave the Speaker's chair to run for president after an open Republican convention this summer, the chances are that we will not hear about the House again for the rest of the year.  Even before Ryan oh-so-reluctantly took the gavel from John Boehner, however, the regular activity of the House had become more than a bit...

by Michael Dorf A little less than two weeks ago, Cornell Law School hosted a "book celebration" for Professor Colb and me, in recognition of the publication of our book Beating Hearts: Abortion and Animal Rights . I have used scare quotes to reflect the fact that, as one of the speakers explained, in the academy scholars celebrate a book by engaging--and in some ways disagreeing--with the claims made in the book. That was certainly the case here. Each of the panelists, including moderator Brad Wendel , mixed (overly generous) praise for our book with substantive challenges. We are very grateful for that engagement by Prof. Wendel and by the two main commentators: philosopher Mylan Engel and law professor Deborah Tuerkheimer . Readers interested in the panel can watch it below or by clicking this link . The format of the event had Professors Wendel, Engel, and Tuerkheimer speaking first, followed by responses from Prof. Colb and me. (There was also audience Q&A ...

by Neil H. Buchanan Last week, I explained why I am supporting Hillary Clinton for president, rather than Bernie Sanders.  Although I did not state the argument in this way, I was ultimately saying that too many Americans do not understand adjectives, specifically the modifier "democratic" in front of the word "socialist."  Sanders's quite accurate self-description as a Democratic Socialist should not scare people , but it does.  And that could cost Democrats both the White House and the Senate, in a year when Republicans are doing everything possible to lose on an epic scale. Therefore, when Newsweek titled my piece, " Nation Isn't Ready for What Bernie Sanders Supports ," that was accurate partly as a matter of substance but mostly of form.  As much as I would like people to be in favor of single-payer health care and the rest of Sanders's agenda, and as much as it appears that majorities or pluralities of people do favor the progressiv...

By Eric Segall Last week, I published a piece in Salon arguing that our current even-numbered, equally divided (as a matter of political party affiliation) Supreme Court is not only not a bad thing for the country but in fact a very good thing. With eight Justices divided along party lines, I argued, the Justices on both sides would be far less capable of carrying out a partisan agenda, would need to compromise much more with each other to get things done, and, in the long run, would likely issue more moderate decisions less infused with personal politics and values. I pointed to the current RFRA litigation, and the Court’s supplemental order desperately trying to achieve a compromise to avoid a four-to-four tie as an example of that kind of behavior. I knew I was arguing against the conventional wisdom. Interestingly, I received generally positive feedback from folks of quite different political persuasions, such as Sandy Levinson and Ed Whelan, who both thought it was worth...

by Neil H. Buchanan One of the most talked-about topics of the past week has been the Treasury Department's announcement that former President Andrew Jackson's image will no longer appear on the front of the $20 bill.  Starting in 2030 (or, one hopes, much sooner than that), the face of Harriet Tubman will instead be reproduced on the front of the twenty. Understandably, most of the commentary on the issue has revolved around questions of race and American history.  The Democratic Party has recently been involved in a reassessment of its icons, with the long tradition of "Jefferson-Jackson Day" political events coming under special scrutiny.  Jefferson's slave ownership and related matters are troubling, while his defenders claim that his views were more complicated and need to be evaluated in their time.  (I take no view on that issue here, because I have not read enough of the relevant history to form an opinion.) But Jackson's history is much more st...

by Neil H. Buchanan I do not generally think of myself as being in the prognostication business, but it turns out that I do often write down what amounts to predictions.  "If Congress does this, then the following good or bad things will happen."  "President Obama's decision on that other issue will have no effects one way or the other."  And, in my economist mode: "Given what we now know, the economy will tank within the year." Sometimes these predictions are right, and sometimes I am wrong.  (On the economy, I tend to be very pessimistic -- or, to paraphrase Paul Samuelson's line from a famous Newsweek column , I have successfully predicted nine out of the last five recessions.)  I have rarely been as off-base, however, as I was on March 1 of this year, which was Super Tuesday.  In an essay that was mostly about Donald Trump's dishonesty and the Republican Party's dysfunction, I took only a few moments to comment on the much-more-pred...

by Michael Dorf In my Verdict column for this week, I discuss Monday's SCOTUS  oral argument in United States v. Texas . After discussing standing and the merits, I argue that, in the event that the Court does not simply divide 4-4 and affirm without opinion, the case provides an opportunity for some well-chosen dicta affirming that there are constitutional limits on the president's exercise of prosecutorial discretion. I explain why both progressives and conservatives should be able to get behind such a proposition. Here I want to address a different question about unilateral executive power, concerning the president's authority with respect to foreign affairs. Let's begin by recalling that a little over a year ago, 47 Republican Senators, led by Oklahoma's Tom Cotton, issued an open letter to the leaders of Iran warning that the nuclear deal that was then being negotiated was a mere executive agreement, and thus subject to revocation by a future president w...

by Michael Dorf Last week, Federal District Judge John Gerrard issued a very thoughtful opinion in the strange case of Cavanaugh v. Bartelt . Cavanaugh is a Nebraska inmate who sued various prison officials on grounds that they had discriminated against him on the basis of his religion: FSMism (for Flying Spaghetti Monster) or Pastafarianism . Judge Gerrard rejected Cavanaugh's claims, which were based on the state and federal constitutions. Although Cavanaugh's complaint did not specifically cite the Religious Land Use and Institutionalized Persons Act (RLUIPA) as a basis for relief, Judge Gerrard construed it as also raising a RLUIPA claim, but dismissed that claim as well. The opinion addresses a number of issues, but the central point is that Pastafarianism is not a religion; instead, it is a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a ser...