Dorf on Law

by Michael C. Dorf In philosophy, law, and other disciplines in which hypothetical examples play an important function as "intuition pumps," a familiar argument cautions against concluding too much from so-called marginal cases. You might think it permissible for people starving on a mountainside awaiting rescue to draw straws to determine whom to kill and eat, but it does not follow that you think cannibalism is morally permissible under ordinary circumstances. Or you might think an intuition pump so outlandish and unlikely--e.g., would you kill baby Hitler? --that it is simply not worth considering. We are unlucky enough to live in a time when many questions that could be dismissed in the past as outlandishly unlikely now routinely arise due to our narcissistic norm-breaker of a president. Thus, whereas in the past we would not have worried about how to fortify our institutions against, say, a president who loses an election but refuses to accept defeat, now we must gra

by Michael C. Dorf ( cross-posted on TakeCare ) Thus far, most of the press coverage and political discussion of Donald Trump's July 25 conversation with Ukrainian President Volodymyr Zelensky has understandably focused on Trump's request that Zelensky accept the help of Attorney General William Barr and Trump's personal lawyer Rudy Giuliani in digging up dirt on Joe and Hunter Biden. Yet that was only the second of two favors for which Trump asked. ("Favor" and "asked" are used here generously. Despite the comical joint appearance of Trump and Zelensky at the UN on Wednesday in which Trump denied applying any "pressure," in light of what the whistleblower complaint states --at p.2 of the formerly classified appendix--it would be more accurate to say that Trump attempted to extort cooperation from Zelensky, using US military funding as leverage.) However, Trump didn't try to extort cooperation only with respect to investigating Biden p

Note to Readers: My new Verdict  column ,  Could Biden’s Promise to Return to ‘Normal’ End Up Being Even Worse for the Country? , was published this morning.  There, I consider the possibility that a Biden win in 2020 might be a very temporary victory for sanity.  Most importantly, I suggest that Biden's status as the ultimate Washington insider whose longtime default instinct has been not to rock the boat -- an attitude that summarizes his current reason for running, that is, getting back to "normal" -- could backfire spectacularly if his crippling caution turns off voters looking for real solutions.  I might have more to say on that topic in future columns on Dorf on Law or on Verdict , but today's column here is on a different topic entirely. by Neil H. Buchanan Over the summer, I tried to find a reason -- any reason at all -- to be optimistic about how the Trump presidency might play out.  I noted in one column that Republicans, who in most ways seem to

by Michael C. Dorf Yesterdays' unanimous ruling by the UK Supreme Court was breathtaking in its rebuke of PM Boris Johnson for proroguing Parliament. Technically, the Queen, not the PM, prorogued Parliament, but as paragraph 3 of the judgment notes, she did so pursuant to a century-old practice by which the sovereign acquiesces in a PM's request to prorogue. Accordingly--and properly in my view--the judgment treats the case as posing the question whether the PM, not the Queen, acted lawfully. The answer was an unequivocal "No." In fact, the high court answered four questions--all against Johnson--to get to that bottom line: (1) Did the challenge pose what we here in the US would call and what the judgment in fact calls a nonjusticiable political question ? Answer: Nope; it's justiciable. I'll have a fair bit to say about this aspect of the judgment, along with some comparisons to SCOTUS political question doctrine in my Verdict column next week. (2) The

by Neil H. Buchanan Ed Rendell is a former mayor of Philadelphia and governor or Pennsylvania, a major Democratic power broker, and a strong supporter of Joe Biden.  He recently wrote: " I like Elizabeth Warren. Too Bad She’s a Hypocrite ."  The piece, which carries a dateline of September 11, was for some reason published (or maybe republished) in The Washington Post  on September 22.  That timing matters, because Biden is beginning to weaken , and the establishment is panicking. Since Rendell is all but unknown except to political junkies, I did not use his name in the title of this column, choosing instead to focus on the real explanation behind his empty attack piece.  For what it might be worth, I can say that my original title of this column was: "Ed Rendell Might or Might Not Be a Hypocrite, But He Is Certainly a Hack." And he is.  Among many other examples, it is worth noting that Rendell in 2013 "wrote a big newspaper piece praising 'fracki

By Eric Segall Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea. Much of the book is about how originalistm and textualism are great while living constitutionalism

by Neil H. Buchanan The news cycle has long since moved on from Donald Trump's false national emergency declaration  in February, which he used to take funds that had been appropriated for other purposes and instead redirect them to build his pointless and wasteful wall.  That issue, however, might be about to come back into the spotlight. There was a bit of interest over the summer in a terrible decision by Trump's Five Enablers on the Supreme Court (whom I will refer to as T5E, because it is too onerous to try to come up with different ways of saying "hyper-conservatives who were put in place through various forms of once-unthinkable political dirty tricks and who now are helping to complete the rightwing takeover of the country, democracy be damned"), who allowed Trump to redirect funds to build parts of the wall while a case is pending to determine whether the redirection of funds is permitted under the relevant statute in the first place. As Professor Do

by Michael C. Dorf A provision of the Clean Air Act  requires the EPA Administrator to waive federal regulatory authority over vehicle emissions for states that wish to enforce their own standards if those standards are "at least as protective of public health and welfare as applicable Federal standards" and necessary "to meet compelling and extraordinary conditions." The waiver provision only applies to states that regulated pre-March 30, 1966 or to states that adopt the standards of such states. As nearly all readers of this essay undoubtedly realize, in practice that means that California and states that adopt California's standards regulate air pollution more strictly than does the federal government. Various versions of the waiver for California and other states that voluntarily choose to participate have been in place for decades, under both Republican and Democratic administrations. But Donald Trump and EPA Administrator Andrew Wheeler find clean air

by Michael C. Dorf In my latest Verdict column , I discuss the recent announcement by EPA Administrator Andrew Wheeler of a new initiative to reduce government-funded and government-mandated testing of chemicals on animals. I consider objections of environmental and public health groups. I say these groups have good reasons to question the motives of Wheeler and the Trump administration, given their record on environmental protection more generally. Perhaps Wheeler and Trump do not care about reducing animal use and suffering but are only using animal protection as a pretext to deregulate the chemical industry. I conclude that while the subjective motives of Wheeler and Trump provide a reason to take a very close look at whether the policy is justified, after taking that look, the policy should be supported. In the column, I distinguish between two sorts of bad motives. (1) Merely pretextual motives might be bad in a policy sense but not inherently illicit. Deregulation is an exam

by Neil H. Buchanan This past weekend, I was in Boston for the first time in a few years.  Because I had never gone to any of the local tourist attractions during the ten years that I lived there, my brother and I decided to go to a few of the Revolutionary War-era sites that are scattered around the area.  I was not expecting to end up with fodder for a column here on Dorf on Law , but I guess this proves that I am never truly off the clock. In any case, I found it interesting to compare and combine the information provided at two historic sites.  The Boston Tea Party site includes a replica of one of the merchant ships involved in that historic moment, which was included as part of a guided tour of an onsite museum/tourist attraction.  A few miles away, the Bunker Hill site in Charlestown included a demonstration of musket firing along with narrated information about the battle there in 1775. As I will explain below, there is an interesting difference between the way the two h

 by Michael C. Dorf "It's not [that poor parents] don't want to help. They don't — they don't know quite what to do. Play the radio, make sure the television — excuse me, make sure you have the record player on at night, the — the — make sure that kids hear words. A kid coming from a very poor school — a very poor background will hear 4 million words fewer spoken by the time they get there." -- former Vice President Joe Biden at the Sep 12, 2019 Houston Democratic Presidential Debate in response to the question "what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?". Hey America, it's me, Joe Biden, Uncle Joe as a lot of the young folks call me. So listen, I've been reading where people say I'm out of touch, but the truth is I'm only a hair older than Bernie and uhm, the Senator from, uhm, the woman from, my friend . . . Elizabeth! . . . and of course Donald B. Trump. What

by Neil H. Buchanan When I linked to  The Washington Post 's website moments ago, a bright red CNN-like banner above the name of the newspaper announced: BREAKING:   Inside the drug industry's plan to defeat the DEA: Newly unsealed documents offer clues to an enduring mystery in opioid epidemic   The linked article 's sub-headline reads: "Faced with pressure to curtail suspicious opioid shipments, an alliance fought back with every weapon at its disposal." Another day, another example of grotesque corporate greed and soullessness.  There is a reason that Big Pharma has joined Big Banks, Big Airlines and the more general Big Business as bogeymen for any American with even a mild dollop of populist sentiments. And all of those Big institutions, in turn, have been responsible for some truly awful things, most especially including a sustained and highly successful political attack on labor unions, which led to companies underpaying workers and backing (and

by Michael C. Dorf From time to time I hear from former students. Whether they are reporting on their successes (or much less frequently, their challenges), seeking a reference for a job, or asking for my advice on a case on which they're working, I'm almost always glad to hear from them--although my policy with respect to advice on cases is to help only with matters that they are handling pro bono and then only if they've cleared my involvement with the client and/or the lead attorney. Occasionally, a student will write a simple note of thanks, which is invariably gratifying. Sometimes the note of thanks is a backhanded compliment, as in "I'm surprised that something I learned in your class turns out to be useful in practice." Very occasionally I receive a note like the one I was incredibly gratified and humbled to receive last week, from a recent graduate just generally thanking me for my guidance. When that sort of thing happens, I usually feel some reg

by Michael C. Dorf What should a reasonable person think about the departure of John Bolton as National Security Adviser? In just about any other administration, it would be very welcome news. Bolton is a Strangelovian hawk who learned nothing from the US misadventure in Iraq that he and others of his ilk promoted. Trump reportedly fired him (or was at least happy to see him go) for the right reason: Bolton was a source of resistance to one of Trump's few sensible impulses--his preference for diplomacy over force in foreign affairs. And yet . . . Bolton probably provided a useful check on Trump's not-at-all-sensible foreign-policy impulses: his emphasis on showmanship over substance; his elevation of personal relations with foreign leaders over details; his embrace of authoritarians at the expense of liberal democratic values and human rights; and his desperation to "make a deal" so that he can claim victory even when the deal at hand is a bad one or at best

by Neil H. Buchanan Virtually nobody talks about how responsible and well behaved millennials are, not even millennials themselves. As with all younger generations, there are complaints from oldsters like me (but not including me) about how shallow and pampered "kids today" can be.   Why can't they be like we were ... perfect in every way? Even so, there is a subset of millennials who have suddenly become the poster children for the argument not to do anything about student debt and high tuition costs.  As I noted in my most recent  Verdict  column last week, there is a new refrain from those who are looking for an excuse not to have the government fix the mess that higher education financing has become in the last generation, which is that some  young people did it right, and it would be unfair to those responsible young heroes to make it easier for anyone else. This is, of course, a shamelessly opportunistic argument on the part of the Republicans, who think that

By Eric Segall A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article: Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.' There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference),

by Neil H. Buchanan Means-tested program participation .  Could any words bring more joy to the heart of a neoliberal policy wonk?  Sure, he will tell you, it is important to provide for the needy, but we must be prudent and make sure that every such program is targeted EFFICIENTLY.  Ergo: means-tested program participation.  Oh, the thrill! Why this dollop of extra sarcasm to start the day?  The debate within the Democratic Party, which is sometimes described as Center-versus-Left or Establishment-versus-Insurgents, is in many ways ultimately a debate about neoliberalism's inherently incremental approach to everything.  More to the point, it highlights just how much the supposedly Reasonable Moderates ™  buy into the logic of flinty conservative presumptions about how government should work. To take but one example, Joe Biden was on "The Late Show with Stephen Colbert" two nights ago, and Colbert asked him if he favors Medicare for All.  Biden's response

by Michael C. Dorf In my latest Verdict column , I discuss a recent 10th Circuit opinion  finding that the Electoral College protects so-called faithless electors--who vote in the Electoral College for a candidate other than the one to whom they were pledged--against post-appointment state interference. I describe the opinion as a plausible reading of Article II and the Twelfth Amendment but one that undervalues the democratizing trends of the last two centuries. I also suggest in the column that while the opinion does not directly implicate National Popular Vote (NPV), an effort to circumvent the Electoral College, the 10th Circuit's combination of wooden formalism and reverence for the anti-democratic design of the Constitution could lead to invalidation or chilling of NPV. That's unfortunate, I argue, because the Electoral College is a suboptimal means of selecting a president. I favor its elimination or, failing that, its circumvention. A fair number of Democratic po

by Michael C. Dorf (N.B.: My latest Verdict column discusses a recent Tenth Circuit ruling about so-called faithless electors, tracing a possible implication for a longstanding effort to circumvent the Electoral College. Today's blog post, however, is unrelated. It is also cross-posted on Take Care .) Unless the Supreme Court dismisses New York State Rifle & Pistol Assoc Inc. v. City of New York as moot (as the respondents have urged ), some time between now and the end of June 2020 the justices will decide their first major Second Amendment case in nearly a decade. Since the Court's landmark rulings in the Heller (2008) and McDonald  (2010), the lower courts have allowed a wide range of prohibitions on firearm possession. The Supreme Court's refusal to review any of those decisions on its plenary docket--prior to the cert grant in NYS Rifle & Pistol-- even led Justice Thomas, in a 2018 solo dissent from cert denial , to accuse his fellow justices of treating

by Neil H. Buchanan Let us say, for the sake of discussion, that you were perfectly happy with the Republican Party until well into the 2016 primary process, and you somehow convinced yourself that 16 of the 17 candidates in your party were a "deep bench" of presidential-level talent.  You would have voted for Ted Cruz, and you actually thought that the guy who turned out to be the weaker Bush brother was somehow impressive.  You turned away only when it became clear that a corrupt, vulgar, opportunistic liar whose only deep commitments were to racism and protectionism took over your party. The protectionism part was easy, because so-called free trade has always been a supposedly conservative commitment.  (I say "so-called free trade" because there is no such thing as a rule-free trading system , but I digress.)  Saying that Donald Trump is not a true conservative or Republican on that basis makes perfect sense.  (The Big Government stuff, and especially the h

by Michael C. Dorf For the eleventh consecutive year, on Saturday September 7 I shall participate in the annual AIDS Ride for Life, a 102-mile bike ride around Cayuga Lake to raise money for a wonderful local organization -- the  Southern Tier AIDS Program , Inc. (STAP) -- that provides resources and services to people in my community dealing with or concerned about HIV/AIDS and related matters. (That's not intended as an ask for donations, but if you  want  to donate via  my sponsorship page , of course I'd be grateful. Below, I shall make some asks for different causes.) The ride proceeds rain or shine. In some years, the weather is ideal. In other years, it can be chilly in the morning, hot in the afternoon, intermittently wet, and/or windy. An entirely sensible person would check the weather forecast on the morning of the ride to see whether to bring rain gear, arm warmers, etc. I do that, but I am not entirely a sensible person, so I start checking the weather forecast