Dorf on Law

-- by Neil H. Buchanan Donald Trump's recent attacks on the press -- calling the news media "the enemy of the American people" -- are appalling and Stalinesque , and people are right to criticize him harshly for taking his attacks as far as he has.  The degree to which he is willing to vilify a free press is indeed alarming. Degree does matter, but we must not forget that none of this is new as a matter of kind.  Indeed, this is simply another example of Trump doing what Republicans have been doing for years.  It is just that he is willing to do so at a higher volume and even more crudely. Republicans have been attacking the press for decades, perhaps out of a group-reinforced belief that the press is truly biased but also because they have found that they can "work the refs" and constantly succeed in securing generous coverage from cowed reporters who bend over backward to prove their open-mindedness. This is all part of a larger strategy in which Repu...

by Margaret A. Moody [Editor’s Note: The following post is by Margaret A. Moody, who practices immigration and international law. In 2015, she served as a full-time consultant to the UN High Commissioner for Refugees (UNHCR) Northern Europe, in Stockholm, Sweden. In an earlier post on her own site, Ms. Moody explained how and why the ostensibly temporary measures contained in President Trump's (stayed) January 27 immigration Executive Order 13769 would likely end up being permanent. Because the anticipated EO that will supersede EO 13769 might incorporate the latter's reliance on the list of seven predominantly Muslim countries (also discussed in a recent DoL post by Diane Klein), Ms. Moody's analysis of EO 13769 will remain highly relevant. As a lawyer in private practice, Ms. Moody does not speak for UNHCR.] ---------------- Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is When I arrived in Stockholm, Sweden, in the fall of 2013, th...

By Diane Klein If your television viewing habits are anything like mine, you have seen, and wondered at, what appears to be a commercial for Judge Neil Gorsuch.  The 30-second spot, called "Jane,"  features Jane Nitze, identifed as someone who "Clerked for Judge Gorsuch" and a "Former Obama Administration Attorney."  Bathed in golden light, she speaks in reassuringly persuasive and dulcet tones about her former boss, now Trump's nominee for the Supreme Court. Like so many other political events of the past year, this is "unpresidented."   Who is behind this ad, and what could be its purpose?  It's not as if television viewers can vote for or against Gorsuch's confirmation.  That's up to the U.S. Senate.  So what's going on? At a glance, once you realize Gorsuch is not a "candidate," the ad is most reminiscent of those now-ubiquitous pharmaceutical ads, the ones that generally include the words "ask your do...

By Eric Segall Readers of this Blog, or those who follow me on Twitter or elsewhere, probably know that I've devoted much of my career, and a full length book, to the argument that the Supreme Court is actually not a "Court," as we generally define that term. My essential thesis is that judges, in addition to not taking bribes and not hearing cases involving themselves or their family, must at a bare minimum take prior law seriously and in good faith when deciding cases. A person who resolves a dispute "all things considered" and without any regard for prior positive law would not be a judge but some other kind of governmental official. My view is that the Supreme Court, not being bound by prior law, and usually interpreting vague text and contested history, has over time and as an institution not taken prior legal materials seriously enough or consistently enough to warrant the label "Court." Needless to say, this thesis has not made me popular am...

by Michael Dorf According to a story in The Hill on Wednesday, the White House has decided to wait until next week to release a revised Executive Order (EO) to (presumably) replace EO 13769 , which has been stayed in the courts. Exactly what the new EO will say remains to be seen, although, according to White House Adviser Stephen Miller, apparently it will have magical properties. As recounted in  The Hill  story, on Tuesday Miller told Fox News that there will be “mostly minor technical differences” between the new EO and EO 13769, even as the new EO will be "new and different." The minor technical differences will somehow be "fully responsive to the courts," which, it bears remembering, have found that the challenges to EO 13769 are likely to succeed on the merits because the flaws in EO 13769 are substantial, not merely technical. Miller, who has no legal training, believes the magical new EO will square the circle because, as he told The Hill  in an email,...

by Neil H. Buchanan The rest of the world has been looking on with a combination of bemusement and horror as Donald Trump has made the transition from cartoonish reality-TV star to even more cartoonish American president.  By all accounts, Trump has managed to fascinate people around the world, although not in a good way. As it happens, this is the last day of my most recent visit to Australia.  I was invited to be a research fellow at the Business School of the University of New South Wales in Sydney, where I have been living for the last six weeks.  Plans for this visit began to take shape last summer, when nobody thought that Trump would be president. The timing of this worked out such that I left the U.S. on January 9, eleven days before President Obama's term ended.  The insanity of the presidential transition had not yet given way to the utter chaos of the Trump presidency.  Although I have been following the news in the same ways that I would if I h...

by Michael Dorf The events of the last several days suggest that the Trump White House, while not exactly the fine-tuned machine that the Maximum Leader touts, is behaving a bit more professionally than in its first chaotic month. On Monday, President Trump named a well-respected, not-at-all-insane general, H.R. McMaster, as National Security Adviser. Yesterday  Trump acknowledged the existence of a spike in antisemitic attacks and unequivocally condemned them, while also condemning bigotry more generally. To give Trump credit for these acts is, of course, to grade on an unbelievably generous curve, but it's still a major improvement. One hopes that the McMaster appointment means that there will be another voice of reason in the higher echelons of the administration so that policy is not made entirely by people in way over their head (Kushner) or working for the Dark Lord (Bannon). Time will tell, but there is reason to be skeptical. Tuesday also saw the release of two appalli...

by Neil H. Buchanan Notwithstanding Candidate Trump's promises not to cut Social Security, his enablers in the Republican Party have long salivated at the idea of privatizing our retirement system.  Given the utter chaos of the one-month-old Trump presidency, will the Republican true believers finally get their way? If they do, there will be an endless number of questions that will need to be answered.  But the biggest question is what will happen when millions of Americans will suddenly be forced to deal with for-profit financial marketing companies that will be selling advice and products in the brave new world of private retirement accounts. The experiences of other countries can give us some sense of what Americans would have to deal with in a post-Social Security world.  Here, I will explain the basics of what a privatization plan would entail, and I will then look at Australia and New Zealand to highlight one particularly costly aspect of any retirement system...

by Neil H. Buchanan If guilt can be inferred from a suspect's efforts to cover his tracks, the Trump tax returns must surely be incriminating.  The very fact of Donald Trump's insistence on breaking with decades of precedent by refusing to release his tax returns -- starting when he originally announced his candidacy, and continuing even after his non-majority electoral win -- cannot help but raise suspicion. Even so, we are necessarily left with little more than speculation as to what he actually has done that he thinks is worth hiding.  And because of its political salience, people who are not tax experts are wading into unfamiliar territory and making unsupportable claims about the Trump tax returns. For example, in an otherwise solid analysis of Trump's authoritarian impulses, the conservative writer David Frum recently questioned Trump's claim that releasing the tax returns is unnecessary because Trump's required annual financial disclosure report includ...

By Eric Segall A brief inside baseball interruption for law nerds from the horrors of the real world and our nightmare-producing clown of a President. I was at the University of Chicago on Wednesday defending my thesis that the Supreme Court should be an eight-person Court evenly divided among Democrats and Republicans. I was talking at a Judicial Behavior Workshop hosted by Judges Richard Posner and Frank Easterbrook as well as by Bill Landes, Lee Epstein and Dennis Hutchinson. Also in the room were such constitutional law heavyweights as Geoffrey Stone, Gerald Rosenberg, and Tom Ginsburg.  I had been told by folks who had been invited to the workshop before to expect serious grilling. The warning was accurate. After I was introduced, I mentioned how flattered I was to be there when Lee Epstein asked me what specific problems I was trying to solve with my proposal. For the remainder of the ninety minutes, I fielded at least three questions at a time piled on top of on...

by Michael Dorf Suppose you were a professional mediator and two parties came to you to help them resolve a dispute. As Professor Colb explained after completing her training as a mediator, you would quite properly resist the temptation to impose a solution on them. The goal of mediation is to enable the parties to have an honest conversation in which they choose a resolution that suits them. That is fundamentally what distinguishes mediation on the one hand from litigation and arbitration on the other. Thus, someone with no prior knowledge of the Israel/Palestine conflict or of Donald Trump's profound ignorance about nearly every subject relevant to the duties of the presidency might think that his pronouncement in the company of Israeli Prime Minister Benjamin Netanyahu was simply an expression of neutrality by an honest broker. Also sprach Trumpathustra : I'm looking at two-state and one-state and I like the one that both parties like. I'm very happy with the one...