Dorf on Law

by Neil H. Buchanan Adding to the list of things that ought to have been unnecessary to write, I recently offered this observation: "The Constitution is not a stupid document written by careless men."  Donald Trump's assaults on our system of government have been so fundamental that even the most crushingly obvious truths need to be revisited. The point of that particular observation was to respond to people -- even many of Trump's fiercest detractors -- who have been saying that the president's pardon power is absolute and unreviewable.  If those people were right, then the Constitution would be not merely a suicide pact but a self-negating exercise, a piece of paper that created a limited government in name but a dictatorship in fact. Even in the context of constructing a strong argument against the Arpaio pardon, for example, Professor Martin Redish recently claimed that "on its face the pardon power appears virtually unlimited."  This, fortun...

By Eric Segall Last Friday, Mike posted an essay titled “How Determinate is Originalism in Practice?” He essentially argued that the decisions of Justices Scalia and Thomas suggest that originalism is less determinate than originalists contend because both Justices reached more conservative results than one would expect from a neutral application of the doctrine. Professor Larry Solum, a scholar associated with New Originalism,  responded with a four-part series taking issue with many of the points raised in Mike's essay.  Mike and I are both critics of originalism, although we do not agree on everything. Thus, this post speaks only for me. It  is devoted solely to responding to the second part of Larry's response dealing with what he calls "public meaning and underdetermination." This aspect of Larry's response is important because it implicates the critique of many scholars that New Originalism is just living constitutionalism by another name (speaking of n...

by Sherry F. Colb In my column for this week , I discuss the recently passed Texas law prohibiting health insurance companies from offering general policies that also cover abortion. If they wish to cover abortion, they must have a separate policy with separate premiums and requiring a separate signature by the insured. In the column, I consider a potential argument in favor of such a law: perhaps Texas wishes to make it possible for people who disapprove of abortion to avoid feeling complicit in the abortions that their insurance premiums subsidize. The column analyzes the strength of that argument through analogies to different types of complicity-avoiding claims. In this post, I want to focus on the decision that a woman purchasing health insurance must make about whether to buy the supplemental abortion insurance plan on top of her regular plan. When purchasing ordinary insurance, one need not think about all of the unfortunate health events that might befall a person. One simp...

by Neil H. Buchanan In what might be his most terrifying move yet (although there is plenty of competition for that dubious distinction), Donald Trump further burnished his racist credentials last week by issuing a presidential pardon to the former Maricopa County (Arizona) sheriff Joe Arpaio. For those who have only the vaguest sense of how bad Arpaio's 24-year reign of terror was, Harper's provides a sobering list of outrages, including (but sadly not limited to) these offenses against human decency: "[Arpaio] shot footage of female inmates that could be viewed online; forced hundreds of inmates not yet convicted of any crime to march from one jail to another in pink underwear; oversaw guards who referred to Latino inmates as 'wetbacks' and 'Mexican bitches,' strapped to a chair a paraplegic inmate and then tightened the restraints until his neck broke, and forced a female inmate to give birth in shackles." (italics added) That is the ...

by Michael Dorf In my Verdict  column and an accompanying blog post last week, I proposed that Congress pass a statute imposing on internet domain registration, hosting, and other companies that provide essential services common carrier obligations, but that the statute ought to allow such companies, if they so choose, not to provide services to purveyors of hate speech, as defined by the statute. In both the column and the blog post, I acknowledged that the constitutionality of such an exception is unclear, given that, as construed by the Supreme Court , the First Amendment protects hate speech. Here I want to consider the question I bracketed last week: Would a common-carrier obligation with such an exception be valid? I confess that after devoting considerable thought to this question, I find myself torn. Here I'll explain why I find this question difficult, mostly by exploring examples that pull in opposite directions.

By Eric Segall Law Professors all over social media have been trying to figure out if we are in a "constitutional crisis" or heading towards a "constitutional crisis." Of course there is no standard definition of what that means, and therefore, not surprisingly, there is also much disagreement among the experts on what constitutes a "constitutional crisis."  Here is what I know: I am 59 years old, and never in my lifetime has there been such a prolonged national ache-not after Watergate, not after Lewinsky, not even after 9/11.

by Michael Dorf (cross-posted on Take Care ) Donald Trump's pardon of Joe Arpaio has been widely condemned as a threat to the rule of law. For example, Senator John McCain tweeted: McCain is right. Arpaio was convicted of contempt for intentionally violating a court order forbidding him from detaining people solely on suspicion of having entered the country illegally. Trump's pardon is despicable because, as McCain notes, Arpaio's policy centered on illegal and immoral racial profiling of Latinos. It is a a threat to the rule of law because contempt is the means by which courts enforce their orders. The use of the pardon power to undo contempt convictions poses a threat to the independence of the judiciary and thus, as McCain says, the rule of law.

by Michael Dorf When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent , which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under t...

by Neil H. Buchanan [August 26, 2017: This column has been updated to fix some editing errors.] There are serious concerns that Donald Trump's ceaseless rhetorical attacks on the news media could lead to very non-rhetorical violent attacks on reporters.  Trump hates to be the subject of negative coverage, so he attacks the messenger rather than changing his message. One of the reasons that Trump is angry is that news organizations have made some efforts to prevent Trump's outrages from seeming at all normal.  The word "lie," which used to be all but taboo in American journalism when discussing politicians (and certainly presidents) has been forced into service in response to a president who lies constantly. Even so, habits of mind persist.  There is, for example, a running list of Trump's lies in The Washington Post , yet the most recent update , "President Trump's List of False and Misleading Claims Tops 1000," uses all of the euphemisms f...

by Michael Dorf On Verdict , my latest column addresses the free-speech implications of the denial by various internet companies of hosting, registration, and other services to the neo-Nazi website The Daily Stormer . To summarize and over-simplify, I argue: (1) Such companies (such as GoDaddy and Google) did not breach their contractual Terms of Service; (2) they did not violate the First Amendment, because as private actors, the Constitution (with the exception of the 13th Amendment) does not apply to them; (3) we ought nonetheless worry about an internet in which private censorship can deny a platform to unpopular speech, if not for the sake of neo-Nazis then for others; (4) Congress could address that issue with a statute imposing common carrier obligations on internet companies in most circumstances; and (5) such a statute could probably carve out an exception that allows such companies to refuse service to purveyors of hate speech. (I hedge by saying "probably" here ...

by Neil H. Buchanan The day after a Klan sympathizer drove a car into a crowd of counter-protesters in Charlottesville, killing one person and injuring nineteen others, I received an email from a friend: "The driver who killed the counter protester in Charlottesville is from Maumee (Ohio). I think there's something extra awful about northerners defending the confederate cause." This was personal, because I grew up in Maumee, which is a suburb of Toledo, near the northern border with Michigan and only about an hour from Detroit. I responded that I knew of one guy from my high school class who had joined the KKK, and I thus assumed that there have always been white supremacist groups in that area.  Indeed, there are right-wing extremist groups all over the country, from New York State to Michigan to Montana and beyond.  In a way, therefore, there was no reason to be surprised that my home town -- any home town -- could have produced this kind of monster. As it tu...

by Michael Dorf ( cross-posted on Take Care ) Since the white supremacist march, rally, and mayhem in Charlottesville, some civil libertarians have begun to question whether the white supremacists were entitled to march and rally at all, in light of the fact that they were armed. For example, the Executive Directors of three large ACLU affiliates in California stated : “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.” Given the organization's history of defending the constitutional rights of unpopular, even repugnant, speakers, that position has been controversial . It shouldn't be. As a simple matter of common sense, a march or rally by people who are heavily armed is not an exercise of what the First Amendment calls "the right of the people peaceably to assemble" (emphasis added). Even a child  knows that. So what explains the contro...

By William Hausdorff and Eric Segall Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.   And that some people got killed. I’m so glad they can’t do that anymore. Can you explain this to me?   Because I really didn’t understand it.   Is all that really true?     Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago.  

by Neil H. Buchanan We have long since passed the point where it makes sense to try to compare Donald Trump's outrages.  "A new low."  "Most depressing."  "Even more dangerous." "Unprecedented in its depravity."  The inventory of negative superlatives has been depleted.  Everything, it seems, is the worst. I will not, therefore, try to claim that there was one Trump statement in the last week that shocked me more than any other.   I will, instead, take one of his moments of awfulness as a starting point to make a larger argument. As most observers know, Trump claimed in his indescribable press conference on Tuesday, August 15, that there were "some very fine people on both sides" of the Charlottesville protests. Trump's claim seemed to be that some fine people marched alongside groups of men carrying Nazi and Confederate flags who were chanting anti-semitic slogans, but the company they kept does not reflect badly on th...

by Sherry F. Colb In my Verdict column for this week , I discuss an Alabama law regulating the judicial bypass hearing that minors get if they cannot or will not go to their parents to obtain consent for an abortion. The purpose of the judicial bypass hearing is to allow minors who are uncomfortable approaching their parents about their unplanned pregnancy (or whose parents refuse to consent) to approach a judge instead. The judge will then decide (1) if the minor is mature enough to make the decision on her own, and (2) assuming that the minor is not mature enough, whether an abortion is in the minor's best interests. The Alabama statute was unusual in that it provided that the minor's parents, the local District Attorney, and a Guardian Ad Litem for the embryo or fetus could or would also be parties to the bypass hearing. A federal court held this unusual statute unconstitutional, and I elaborate that holding in my column, which then discusses the communicative significance...

by Michael Dorf Baltimore's overnight removal of Confederate statues and similar actions elsewhere raise the question also raised by President Trump in his remarks yesterday  expressing solidarity with the "many fine people" who just happened to participate in explicitly racist and antisemitic events in Charlottesville: "Is it George Washington next week? And is it Thomas Jefferson the week after?" The short answer to Trump's question is that we honor Washington and Jefferson despite the fact that they owned slaves, whereas memorials to the likes of Robert E. Lee, Jefferson Davis, and Stonewall Jackson honor them because they fought for the Confederacy, a secessionist movement that had the preservation of slavery as its organizing principle. Yet the longer answer is more complex. The nationwide movement to strip honors from people who participated in slavery and institutional racism has as its object some people whose contemporary honors can fairly be...

by Neil H. Buchanan No one who has been paying even a little bit of attention to Donald Trump could have been surprised by his abject failure of leadership after the violent white supremacist rallies in Charlottesville this past weekend. Trump's White House staff includes people who have built their careers by fomenting racist hatred, and Trump has enthusiastically embraced their themes and resentments.  He had no inclination to criticize a part of his base that he has actively courted. There has already been an outpouring of excellent commentary regarding Trump's contemptible evasions.  Jennifer Rubin, a conservative columnist for The Washington Post , posted a blizzard of insightful blog entries, including one in which she decried "Trump's moral idiocy."  (On the other hand, some nominally respectable right-wingers are now busily trying to create false equivalence between Trump and Barack Obama.) But by far the best responses thus far have come from th...

By William Hausdorff I’m a little ashamed to admit that I already miss the Mooch.   Unlike Spicer, Huckabee Sanders, Conway, and the rest of that robotically mendacious crowd, Anthony Scaramucci, the effervescent but sadly evanescent White House communications director, appears to be occasionally capable of unprogrammed, human-like opinions . Nevertheless, only after the Mooch was dismissed for delivering his must-read interview-rant , could I (momentarily) pull myself out of reach of the daily splattering of untreated sewage that passes for White House communication.   I decided to try to think about where Trump and the Republicans are heading.  

by Michael Dorf In response to the Charlottesville violence at a white supremacist rally, President Trump condemned the "egregious display of hatred, bigotry and violence on many sides"--a statement that can be read to place primary responsibility on the white supremacists but that falls short of doing so expressly. Even if we acknowledge that some counter-demonstrators were responsible for some of the violence, does Trump mean to suggest that the hatred and bigotry come from many sides? Why does he not unequivocally condemn and separate himself from white supremacists? The answer may well be political. Perhaps Trump fears alienating his alt-right base. If so, nothing I can say here will persuade him to do anything other than continue to issue ambiguous platitudes. Still, on the off-chance that Trump wishes to say something presidential, I humbly offer a speech for him to deliver. To be clear, this is not the speech that I would write for a president whose views I found ...

By Eric Segall Donald Trump might be the last person on the planet I would trust with making reasonable decisions concerning what to do about North Korea's nuclear capability. Having said that, we shouldn't trust any President with the unilateral power to commit a non-emergency, no-need-for secrecy, act of war without congressional consent. The founding fathers wanted to separate the war declaring function from the war fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

by Michael Dorf My most recent  Verdict column  (now also available via Newsweek ) discusses the recent announcement that the DOJ is committing resources to investigating and potentially suing American colleges and universities over their affirmative action programs. I describe the potential peril that the announcement--if the DOJ follows through--holds for colleges and universities that push the edge of the envelope of what the SCOTUS precedent currently permits and even for those that hew strictly to the line between permissible "plus-factor" affirmative action and impermissible de facto quotas. For the latter, the greater danger would be another SCOTUS appointment for President Trump (or, in the event of his removal, any other Republican president). Here I want to discuss a related issue. Defenders of affirmative action--and even some of its critics--frequently criticize Justice Lewis Powell's controlling opinion in the Bakke case on the ground that it rejected th...

by Neil H. Buchanan The Democratic Party, we are forever being reminded, has had a bad run recently.  Although I continue to believe that commentators have overstated their troubles and that Democrats' fortunes will soon improve, there is certainly no denying that Republicans are in charge nearly everywhere. If great power implies great responsibility, however, then no power might imply no responsibility.  Are the Democrats off the hook?  When Barack Obama was in the White House, congressional Republicans exercised their irresponsibility not just during the two years that they were the minority party in both houses but even after they took back the House in 2010 and the Senate in 2014. From budget showdowns to repeated meaningless votes to repeal the Affordable Care Act to filibustering executive and judicial nominees, the Republicans acted entirely for political gain.  And, as sad as it is to say, they were not punished for their irresponsibility.  Indeed...

by Michael Dorf Tomorrow I will be speaking on a series of panels at the 19th annual Practicing Law Institute (PLI) Supreme Court Review session in NYC, with simulcasts in various locations as well as a webcast. I have been a panelist at this event since its inauguration and am, as always, eagerly looking forward to it. In addition to returning panelists Erwin Chemerinsky, Joan Biskupic, Burt Neuborne, Ted Shaw, Sherry Colb, Marty Schwartz, Leon Friedman, and myself, this year we add Judge Sandra Ikuta. (Although co-organizers Chemerinsky and Schwartz always ask us to provide fair accounts of the Court's work, the lineup slants liberal, so they make sure to include at least one recognizable conservative. Last year we had Judge Jeffrey Sutton and Jeffrey Wall, who is now acting Solicitor General. This year Judge Ikuta will be doing the work of the two of them!) The day is organized around various topic areas and the cases the Court decided in each topic area. I'm responsibl...

by Neil H. Buchanan It seems almost impossible to read about the Trump Administration without coming across yet another author who is worried about Trump's threat to the rule of law.  This threat is very real, and it is a good thing that so many commentators are shining a spotlight on Trump's lawlessness. In the midst of Trump's maelstrom of misdeeds, however, there is a danger that we will forget exactly what is at stake when we are talking about the rule of law, a term that can all too easily become a vague abstraction (like democracy).  When we say that the rule of law is under assault, what do we mean?  Why does it matter?  What happens if it is eroded or lost?

by Michael Dorf The warp-speed news cycle has moved on, but I want to linger a bit over what now seems like ancient history: President Donald Trump's speech to the Boy Scouts Jamboree two weeks ago. I shall contrast Trump's speech with one the previous month to a similar (albeit smaller) crowd: The ninth-grade commencement address that Chief Justice John Roberts delivered at the Cardigan Mountain school, where his son Jack was among the graduates. The Roberts speech was everything that the Trump speech wasn't: self-deprecating; well-crafted; compassionate; and wise. The contrast tells us something profound about the differences between the men who respectively head the judicial and executive branches of our national government.

by Neil H. Buchanan Donald Trump provides so many examples of blatant and overt racism that it almost seems unnecessary to focus on less obvious evidence of bigotry.  Even so, there are important lessons to be learned from the choices that Trump makes about which issues to highlight and which fights he picks, almost all of which come back not only to his own narcissism but to his deeply racist worldview. Ever since the 2016 election, Trump has been obsessed with proving that he won BIG.  He continues to insist that his 44th-biggest out of the 56 margins of victory in Electoral College history was a landslide, and many of his surrogates (including the ones whom he has fired) have dutifully repeated this nonsense. But at least that particular claim can be dismissed as mere puffery, yet another example of Trump's willingness to claim that his buildings are taller than they are, that his businesses are more successful than they are, or that his "words" and "brain...

By Neil H. Buchanan Republicans in Congress and their allies in the Trump Administration should have one overriding priority right now, and that is to repeal the debt ceiling statute.  Note that I did not say that their goal should be to increase the debt ceiling, although that is the more likely -- and, absent an outbreak of sanity, necessary -- path that they must follow. The one thing that they cannot do is nothing, because that would lead to an unprecedented disaster.  The problem is that there is so much misinformation and ideological posturing about the debt ceiling that it is only too easy for fake populists to pretend that the debt ceiling is not a big deal or that other issues take priority.  They are dangerously wrong. Even though we have been through debt ceiling standoffs multiple times over the past six years, there is still a great deal of misunderstanding about the issues and the stakes involved.  Here, I will explain what is happening, what ...

By Eric Segall Next term the Supreme Court will hear a case brought by a baker who refused to sell a wedding cake to a same-sex couple. The baker argues that a Colorado non-discrimination law which makes it illegal to refuse to do business with people because of their sexual orientation violates his first amendment rights to freedom of speech and religion. Most scholars agree that the speech claim raises more difficult questions than the religion one, but this post focuses on the baker's claim that the Colorado non-discrimination law as applied to him is inconsistent with his right to the "free exercise of religion."

by Sherry F. Colb Charlie Gard died last week. In my latest  Verdict column  I discuss his tragic life and the legal battle the ending of it occasioned. Charlie's parents disagreed with the boy's doctors because the former wanted to keep him alive to try an experimental treatment but the latter (the doctors) wanted to disconnect the boy from life support and give him a dignified death. In my column, I discuss what I regard as an optimal way to approach parental decision-making regarding a child's treatment, given that parents are generally the most likely people to have their child's best interests in mind. In this post, I want to consider a different issue that emerges from Charlie's case. It is the "death versus never having been born" issue. Charlie was born with a genetic disease. His illness, mitochondrial DNA depletion syndrome, is a horrible disease that is incurable and typically kills children in infancy or early childhood. Assuming that Charl...

by Michael Dorf The beginning of August for me heralds the new academic year. The registrar sends out reminders to post syllabi. The annual supplement to my casebook arrives in the mail. Despite the heat, my thoughts turn to the new batch of eager 1Ls that will shortly arrive for me and my colleagues to corrupt. The coming semester will mark the first time I have taught constitutional law during the Trump presidency. I taught federal courts in the spring, for which various Trump policies--especially the Travel Ban-- provided grist for discussion. But the federal courts issued raised by the Trump administration, like the subject in general, were somewhat technical. By contrast, thinking about Trump and the Constitution writ large provides an opportunity to think about the very nature of constitutional democracy. Things long taken for granted--like the fact that a president would not attempt to cancel an election or refuse to accept the result of one--may now be discussed as more...