Dorf on Law

by Michael Dorf In the coming days and weeks, my co-bloggers and/or I will undoubtedly have a fair bit to say about Judge Gorsuch's record and what it likely portends for his tenure on the Supreme Court. That is inevitable. This is a blog about law, my own special focus is constitutional law, which is an interest of most of my co-bloggers as well, and a Supreme Court nomination is undoubtedly a big deal. It is also true that I regard Judge Gorsuch's confirmation as essentially unstoppable. Democrats can filibuster and perhaps they will successfully maintain party discipline, but a world in which Senate Democrats have that kind of party discipline is almost certainly a world in which Republicans invoke the "nuclear option" and use the same mechanism to invalidate the cloture rule for Supreme Court nominees that Democrats used a few years ago to invalidate it for executive branch and lower federal court nominees. Accordingly, as the proprietor of a quasi-news site

[Note to readers: We at Dorf on Law received the essay below from a lawyer who, because his job is not protected by the blessings of intellectual freedom, needs to worry about offending clients and angering thin-skinned politicians.  She or he thus wishes to remain anonymous, which we respect even as we note that there is something very wrong with a world in which such anonymity has become both prudent and necessary. [The essay is particularly prescient in that it was written before Sally Q. Yates was fired for having somehow "betrayed" the Justice Department -- because heaven forbid that the Acting Attorney General's first concern would be to the Constitution or justice! Yates had been disloyal to Trump's Justice Department, so she had to go. [Predictably, Trump treated this as just another political moment, using his familiar litany of demagogic insults and denunciations: "Ms Yates is an Obama Administration appointee who is weak on borders and very wea

by Neil H. Buchanan Anyone who was paying attention should have known that Donald Trump's presidency would be a disaster.  Only the particulars of that disaster remained to be determined.  Having predicted that bad things would happen, however, even pessimists like me are astonished by how quickly matters are spinning out of control. Just eleven days into his reign, Trump has managed to incite a petty (but revealing) spat with the press about his own popularity, which was embarrassing but mostly harmless.  (I say "mostly" because Trump's obsession with the popular vote will dovetail all too well with longstanding Republican efforts to suppress voting by minorities and young people.)  It was worrisome, but there was nothing especially scary about it. Now, however, we are confronted with a nascent constitutional battle that has begun with a fight over immigration policy but will soon spread to more and more areas of governance.  When an incident on the second we

by Michael Dorf After a weekend spent parsing President Trump's evil executive orders, it is a pleasure to consider one that is possibly merely stupid. Today Trump issued an EO that requires, to the extent permitted by law, that each time a federal agency promulgates a new reg, it must eliminate at least two old ones, and the cost of the new reg must not exceed the cost of the eliminated regs. On its face, the 2-for-1 requirement is easily evaded. Suppose you run NHTSA and you have on the books a reg requiring that new cars be equipped with airbags and another reg requiring that new cars be equipped with backup cameras. You want to add a reg requiring that new cars be equipped with vehicle proximity sensors that alert the driver of a nearby car that could lead to an accident. You scour the existing regs and can't find any that you think should be eliminated. As I read the EO, there is nothing to stop you from "eliminating" the airbag reg and the backup camera reg

By Michael Dorf In two recent posts, I called on Democrats (and by implication, principled Republicans who are horrified by Trump) to resist fighting with one another over how best to resist Trump ( here ) and what to aim to replace Trump with ( here ). Today, I want to offer some thoughts on how to go about both surviving the Trump presidency with one's mental health intact and also to play a part in working against Trump for the good of the nation and our local communities. On a personal level, people like me--straight, white, male, economically secure, and living in a very liberal enclave within a Democratic state--will probably be able to ride out a Trump presidency without much personal pain. True, the qualifier "probably" is there in recognition that Trump could start a trade war leading to a Depression or a shooting war leading to nuclear annihilation. At the very least, the cruelty and aggressive stupidity of Trump's bans on refugees and people from seven c

by Michael Dorf In addition to being appalled at the gratuitous cruelty and almost certainly counterproductive stupidity of President Trump's executive orders concerning refugees in general, Syrian refugees in particular, persons attempting to enter the U.S. from seven ( not exactly randomly selected ) majority-Muslim countries, and the thinly disguised religious discrimination underlying the favoritism for "minority" (i.e., Christian) refugees, lawyers and law professors in the circles in which I travel have been stunned by the incompetence of the lawyering or lack of lawyering that went into the formulation of these and other orders. For example, the executive order that cracks down on so-called sanctuary cities withholds federal funds from localities that do not do the administration's bidding, even though South Dakota v. Dole --which was decided nearly thirty years ago and has been repeatedly reaffirmed since then--makes clear that only Congress can attach condi

  by Neil H. Buchanan There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters. If only these journalists had "gotten out there" and interviewed Real Americans, rather than holding them in contempt, they would have felt -- really felt -- the pain of these voters.  This story then holds that those angry voters naturally voted for Trump because he is the ultimate outsider, and they felt in their guts that his solutions were just what is needed to reverse the pain in their lives.  Sticking it to those annoying elitists was an added bonus. But what if that received wisdom is wrong?  More importantly, what if this new conventional wisdom is actually more condescending to voters -- more the result of the liberal bubble inhabitants' biases and groupthink than of actually applying

by Michael Dorf In my latest Verdict column , I discuss the Supreme Court's recent cert grant in Davila v. Davis . The case presents the admittedly technical question of whether a criminal defendant's state habeas lawyer's ineffectiveness counts as "cause" sufficient to excuse the default of a claim that his state direct appeal lawyer was also ineffective, such that a federal habeas court can hear his petition for relief. Got that? No? Okay, go read the column, where I explain the details as well as I can for laypeople. Also, if you're still a law student, take Federal Courts and/or an advanced class in federal habeas corpus. The law still won't make sense, but at least you'll know exactly how it doesn't make sense. In the Davila case the issue is how narrowly or broadly to read two prior precedents ( Martinez v. Ryan  and Trevino v. Thaler ), which held that ineffectiveness of state habeas counsel is "cause" that can excuse defaultin

Guest Post by Diane Klein Earlier this month, unnamed representatives of the Trump Administration commissioned Washington, D.C.’s Buttercream Bakeshop (and its owner, Tiffany MacIsaac), to make a cake for Trump’s “Salute to Our Armed Services” ball on Friday, January 20, 2017.  As bakery clients frequently do, they brought in a photograph of another cake.  But this prior cake was not merely to be used as “inspiration” - the instructions were to “replicate” it, as precisely as possible.  And what cake was to be copied?  A nine-tier showstopping cake made by Food Network celebrity chef Duff Goldman - for the Obama Administration “Commander-in-Chief” inaugural ball in January, 2013. Goldman described the cake to the Washington Post on January 20, 2013 , this way: “a silver, 18-inch base that becomes light blue, then navy blue, as it tapers to the top. The bottom layer will boast red stripes, while another layer will feature red, white and blue bunting. The cake will include not jus

by William Hausdorff Give 'em the old razzle dazzle Razzle Dazzle 'em Give 'em an act with lots of flash in it And the reaction will be passionate Give 'em the old hocus pocus Bead and feather 'em How can they see with sequins in their eyes? What if your hinges all are rusting? What if, in fact, you're just disgusting? Razzle dazzle 'em And they’ll never catch wise! ( sung by the character Billy Flynn, from Chicago, the Musical ) At least 40% percent of Americans currently retain a favorable opinion of President Donald Trump.   He is even more popular within the Republican Party, as shown by the unwillingness of any Republican official to call him to task for his blatant personal conflicts of interest, or for any Senator to declare they will vote against ANY of his cabinet nominees, no matter how unqualified, mendacious, or corrupt.   Why? 1.   It’s not because President Trump has an attractive personality.   His deme