Dorf on Law

by Michael C. Dorf Donald Trump's tweet in response to the testimony of Lieutenant Colonel Alexander S. Vindman on Tuesday was despicable; yet remarkably, it was not nearly as outrageous as comments by Trump-friendly talking heads. Below I'll connect the smear by former Congressman Sean Duffy, FoxNews host Brian Kilmeade and others to controversy over statements by Congresswoman Ilhan Omar as well as to the nature of partisanship in our current era.

by Michael C. Dorf My latest Verdict column discusses a brief eruption of the progressive Internet last week in response to the false claim that Pete Buttigieg announced that he would seek to name justices like Anthony Kennedy to the SCOTUS. As I explain in the column and as I also explained in a Twitter thread (which you can read "unrolled" here ) last week, that's not what happened. Rather, Buttigieg mentioned Kennedy in the context of his explanation of a proposal to depoliticize the Supreme Court. My Verdict column first criticizes the Buttigieg critics who jumped on him without bothering to read what he actually said; it then pivots to criticize Buttigieg's goal of depoliticizing the Court. I explain that the Court has pretty much always been political and that to the extent that it is now more clearly embroiled in partisan politics than in some other periods, the problem is not the appointments process but polarization in Congress. Here I want to return to

by Neil H. Buchanan One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter. Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's  infamous reference  to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me . As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also showing up i

by Michael C. Dorf It is difficult to know how to regard the news that US special forces killed ISIS leader Abu Bakr al-Baghdadi. The killing of Osama bin Laden in 2011 did seem to diminish the power and reach of of Al-Qaeda. Perhaps al-Baghdadi's death will bring similar benefits. However, there are reasons to worry. Al-Qaeda was already a weakened institution when bin Laden was killed. Moreover, it had begun to transform into a kind of franchising operation. In this respect, it is useful to remember that ISIS is a lineal descendant of Al-Qaeda in Iraq. Its initial leader, Abu Musab al-Zarqawi, pledged his loyalty to Bin Laden and was then killed by US forces in Iraq in 2006. The US killed successor leaders before al-Baghdadi emerged and transformed Al Qaeda in Iraq into ISIS. So maybe the killing of Bin Laden wasn't especially effective after all. And difficult as it is to imagine, maybe someone as bad as al-Baghdadi will soon emerge. Put differently, terrorist organiza

By Eric Segall On Wednesday, Professor Lawrence Solum kindly "recommended"  a forthcoming essay  of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument: I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And

by Neil H. Buchanan Last Sunday, the editorial board of The Washington Post  asked what they surely thought was an utterly reasonable question: "There’s an effective and progressive solution for climate change. Why won’t Democrats embrace it?"  The "effective and progressive solution" that enthralls them is a carbon tax.  The lack of self-awareness revealed by their question made my jaw drop. These editors, after all, are the very same people who have spent the last year or so gleefully joining in on the baseless attacks on Medicare-for-All by saying that such plans would "raise taxes."  As my most recent Verdict  column (and, to a lesser extent, my most recent Dorf on Law  piece ) explained at great length, this is utterly bonkers.  Whatever else one thinks about Medicare-for-All or about Senator Elizabeth Warren, she is absolutely right that the labeling debate about health care costs is a political trap. Why? As I said last week: "[S]h

by Michael C. Dorf Today I shall have the pleasure of debating Prof Josh Blackman on the challenge to Obamacare now pending before the Fifth Circuit. Prof Blackman and I recently agreed with one another about amicus briefs in the SCOTUS (me here and him here ). Today, I suspect we'll disagree--and not just because the event is billed as a debate. The Cornell Law School chapter of the Federalist Society is sponsoring the event, and I know from past experience that Fed Soc likes to promote its events as "debates," even when a term like "discussion" would be more accurate, because debates attract a larger audience than discussions. Accordingly, I have sometimes found myself announced as debating some speaker only to end up agreeing with most of what the speaker says. But this time I suspect we will find plenty about which to disagree (though not disagreeably, of course). Below I preview my argument, which leans heavily on the House reply brief  in the pendin

by Michael C. Dorf On Thursday of last week, the Supreme Court issued official guidance regarding the filing of amicus briefs. Most of it simply collects what's already in Supreme Court Rule 37, but even so it's useful. For a summary of the guidance (which is itself pretty short), here's a helpful article on Bloomberg. I'll offer some critical thoughts on a couple of points: (1) party consent; and (2) colors.

by Michael C. Dorf Numerous commentators (including yours truly ) have condemned President Trump's precipitous withdrawal of US forces from northern Syria as a betrayal of our erstwhile Kurdish allies. It was and remains such a betrayal. Despite yesterday's announcement of a 5-day "pause" in operations--which was predictably and inaccurately hyped by Trump as a "great" deal that resulted from his "tough love"--Turkey apparently has no current plans to withdraw forces from its self-declared "safe zone" in northern Syria. Thus, Turkey's incursion leaves alive the possibility of clashes between Turkish and Syrian and/or Russian troops. Such clashes in turn might result in a call for NATO involvement. Suppose Syria crosses the border and counterattacks. Suppose Russia, which has troops stationed in Syria about 20 miles south of the Turkish border, assists in such a counterattack. Would that constitute an "armed attack" under

by Neil H. Buchanan Pete Buttigieg, it turns out, is a bit of a dick.  This was not supposed to be his brand.  He presented himself to the world as a thoughtful, modest uniter with Midwestern quietude and restraint who would move our politics forward -- the avatar of a new generation of people who have had enough of the old ways of doing things.  We wanted to like him.   I certainly wanted to like him. Apparently, however, Buttigieg decided that this was no longer working.  It seems that his initial success in moving into the second tier of candidates who might  break through -- not among the Three Septuagenarians leading the pack, but also clearly in a different category from Cory Booker and Amy Klobuchar -- gave him a taste for more.  Unfortunately for him, his boomlet ran its course as he faded out of double digits in national polls and has been muddling along in a land where people assume his future is as a Vice Presidential pick. How to get out of that rut?  Figure out

by Michael C. Dorf It is better to be shocked with a taser than shot with a gun, but a shock from a taser is nonetheless extremely unpleasant. So too with economic sanctions, which unleash less destructive force than armed conflict but nonetheless can be nasty. I'll explore the point today with reference to Trump policies and the current controversy embroiling the National Basketball Association.

by Neil H. Buchanan As the world tries to understand why Republicans have not abandoned Donald Trump, despite his violation of so many of their supposed principles -- Hint: It cannot be that he "does what conservatives want him to do" (and certainly not only that), because any Republican president would be substantively identical to Trump on taxes, the environment, labor law, and so on -- it is worth remembering once again that many of those principles themselves are indefensible. And understanding what makes the modern conservative movement indefensible in turn calls for us to remember that the same symbiosis that currently exists between the US and UK in their political malfunctions (Brexit simply being Trumpism carried out by a number of mini-Trumps rather than one mega-corrupt Trump) existed at the onset of what American Republicans think of as the dawn of a new day under Ronald Reagan when he took office in 1981. I am referring, of course, to Margaret Thatcher, wh

By Eric Segall Last Tuesday, the Supreme Court heard three cases raising the issue whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "on the basis of sex," protects gays, lesbians, and transgender persons. During the oral argument , Justice Neil Gorsuch conceded that the textual issues were very close and then asked Professor David Cole, one of the plaintiffs' attorneys, whether a judge should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it ...  That's it. It's a question of judicial modesty." This paen to "judicial modesty" is consistent with many passages in Gorsuch's new book, "A Republic If You Can Keep It," which I reviewed here . For example, in that book, Gorsuch says he has two rules for his law clerks: 1) "Don't make stuff up," and 2) " When p

by Michael C. Dorf Let's begin with what's clear. 1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Lik

by Michael C. Dorf Last week, Federal District Judge Allison Burroughs issued a 130-page opinion  rejecting a challenge to Harvard College's admissions program. The lawsuit on behalf of Students for Fair Admissions charged that Harvard discriminates against Asian American applicants in violation of Title VI. Because the Supreme Court has construed the prohibition on racial discrimination in Title VI as coextensive with the Fourteenth Amendment's Equal Protection Clause, the ruling in the case has implications for public as well as private colleges and universities--assuming it stands up on appeal. Much of the press coverage of the Harvard case has treated it as a test of the legality of race-based affirmative action. And indeed, it may prove to be that. Although Judge Burroughs applied existing SCOTUS case law allowing the consideration of race as a plus factor but not a quota and allowing colleges to seek diversity but not racial balancing, the most recent articulation of

by Neil H. Buchanan I suppose that, in early 1933, there must have been intellectuals scattered about the world thinking about relatively lightweight topics like popular music.  They surely knew that important things were afoot politically, especially in Germany, but they likely had no idea that the Reichstag fire was imminent.  Today, at least we have reason to know that something like that is all too possible. Wikipedia helpfully explains that "[t]he term 'Reichstag fire' has come to refer to false flag actions facilitated by an authority to promote their own interests through popular approval of retribution or retraction of civil rights."  Today, as Donald Trump's political nightmare deepens and he becomes increasingly untethered to even his abnormal version of normal day-to-day behavior, it seems more than reasonable to wonder what extreme and desperate measures he will take to save himself. Groups of his supporters -- possibly even including so

by Michael C. Dorf Today the SCOTUS will hear oral argument in two cases apparently presenting the questions whether Title VII's prohibition on sex discrimination thereby forbids discrimination based on sexual orientation and gender identity. As Prof  Marty Lederman explained in a blog post last month, the framing of the cases as involving categorical policies excluding LGBT persons from employment is wrong on the facts, but he also argued (and I agree) that if the cases are framed that way the plaintiffs still should win. (Interested readers can find the brief by Marty, me, and three other law professors in support of plaintiff Aimee Stephens in the  Harris Funeral Homes case here ). Today I want to address two arguments made against recognizing gender identity discrimination as sex discrimination. Both have the flavor of a parade of horribles and feature in various briefs by the defendants and their amici. The arguments are that if gender identity discrimination is deemed un

by Neil H. Buchanan This past Friday, I wrote with some bemused astonishment about the supposedly horrible consequences that Republicans would face if they were ever to ... shudder ... take a public position that was critical of Donald Trump.  Most directly, I was responding to a  Washington Post   article that described the fallout for four elected Republicans who have recently mouthed mildly not-pro-Trumpian comments -- Rep. Adam Kinzinger and Sens. Chuck Grassley, Mitt Romney, and Ben Sasse. Why was it so laughable?  The unpleasant consequences mostly amounted to nothing more than name-calling (Kinzinger was called a "spineless sellout" -- ouch!) along with some attempts by Trump's troll army to invent new conspiracy theories about Romney.  To his credit, Romney had more negative things to say about Trump over the weekend, so apparently Romney is not too worried about whatever he is reading and hearing. The larger context for this, of course, is that the mainst

[Note: Yesterday on Verdict , I published: " Economics in Deserved Decline: The Comeuppance of a Profession That Took Itself Far Too Seriously ."  I will allow that column to stand on its own without further comment, at least for now.  The column below addresses a very different subject.] by Neil H. Buchanan Every now and then -- okay, almost every day -- I join thousands (if not millions) of people around the world in asking the same question: "What is it that makes Republicans so subservient to Donald Trump?"  There are facile answers, which I plan to rehash below before moving to something potentially more interesting, but it is nothing short of astonishing that we still have no answer to that very basic question. After all, Trump was (we remind ourselves for the umpteenth time) not a Republican power player for most of his life.  Indeed, he was not even a Republican.  Yes, he has long held various views that overlapped with many key components of Republic

By Eric Segall Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "T he Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges).  Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of th

by Michael C. Dorf My Verdict column for this week continues my praise (begun on the blog here ) for the UK Supreme Court's ruling last week invalidating PM Boris Johnson's recommendation to the Queen to prorogue Parliament. I defend the ruling against the charge that courts--whether in the US or the UK--oughtn't to get involved in politics by invoking the limits of the political question doctrine in the US and John Hart Ely's justification of judicial review on "representation reinforcing" grounds. The charge that judicial review is counter-majoritarian or, worse, undemocratic, rings hollow, Ely argued, when the courts intervene to ensure that the People have their say. That, I contend, is what the UK Supreme Court quite expressly did. My column also points to the irony that the UK--one of the last bastions of legislative supremacy--would embrace full-throated representation reinforcing judicial review at a moment when its pioneer (the SCOTUS) is retrea

by Neil H. Buchanan I am choosing not to write about impeachment today, opting instead to discuss fantasy and history.  Specifically, I want to offer some thoughts inspired by the TV show "Downton Abbey" and its new sequel movie of the same name, the latter of which I saw this past weekend.  But fear not: You do not need to have seen (or liked) the show to follow the argument here. After briefly summarizing the relevant aspects of the show and film, I will focus on a particularly odd theory that the writers invoke to justify the class-based aristocratic system that they celebrate so fondly.  Whatever else one might say about it, the economic system in "Downton Abbey" is not capitalism.  It is not socialism either, but it might be something akin to communism.  The Dowager Countess would be shocked!