Dorf on Law

by Neil H. Buchanan For my final column of 2020, I am putting a slight twist on the Dorf on Law "classic" idea by reprinting what is actually a Verdict classic.  Specifically, I have reproduced here a two-part column that first ran on Justia's Verdict on May 14 and May 18 of this year.   In that column, I discuss a topic that will again become a major policy issue almost immediately in the new year, with state and local governments in desperate need of infusions of federal aid to prevent an even greater economic and humanitarian catastrophe.  Amazingly, more than seven months after I published the column, Mitch McConnell and the Republicans are sticking to their absurd "blue-state bailout" rhetoric.  Even more amazingly, I and nearly everyone else turned out to be wrong in predicting that aid to states and cities would be provided before the election, simply as a matter of political self-interest by Donald Trump and his cult.  (In my mild defense, I said o...

by Michael C. Dorf [Following my custom, below I provide the exam I recently administered to my first-year constitutional law students. It's not as funny as usual. Actually, it's not funny at all. But I do think it covers a lot. The exam consists of one question with a 2500-word limit. Write your answers in the comments if you like. I shall not grade them, however, as I have no interest in a busman's holiday.] The year is 2023. Thanks to effective vaccines, treatments, and public health measures, COVID-19 is no longer widespread. In order to improve preparation for any new threats, Congress enacts and the President signs the Pandemic Response Authorization Act (“PRAA”). Its key provisions, include: Notwithstanding any other provisions of law,      1. There shall be created a Public Health Emergency Action Commission (“PHEAC”) consisting of five medical doctors to be appointed by the Secretary of Health and Human Services (Secretary)  to serve for five-year terms at s...

This is my final new column of 2020.  Professor Dorf will, as is his custom, post his ConLaw final exam tomorrow, and I plan to run a Dorf on Law classic on the 31st.  I considered writing a column for today that was shorter than usual, but it is not as though I am in a hurry to get anywhere.  In any event, Happy New Year, everyone!     by Neil H. Buchanan     What to write about at the end of this horrible, horrible year?  Although there are plenty of important topics -- two of the most prominent being the probably-temporary preservation of the rule of law in the United States and the racial justice movement that rocked the country in the middle of the year -- it seems obvious that the COVID-19 pandemic will define 2020 in all of its awfulness. It is difficult to know how many fewer people would have died this year had the United States been run by a non-sociopath, but credible estimates range well north of 200,000 unnecessary deaths.  Mu...

  by Michael C. Dorf On Christmas Eve, the European Union and the United Kingdom reached a trade deal that prevents the latter from "crashing out" of the former, albeit by a so-called "hard" rather than "soft" Brexit. The UK will still be able to export and import goods to and from the EU without tariffs or quotas, but because the deal does not cover financial or other services, London will lose a good deal of business, which in turn will undercut economic growth for the whole of the UK. Nonetheless, under the circumstances, the deal is about the best that the UK could have hoped for. Had EU leaders allowed the UK to exit on more attractive terms, it would have thereby encouraged other countries to do the same--to obtain the benefits of union without paying any of the costs--and that could have spelled the unraveling of the EU. The EU may yet fail anyway. The continued membership of Hungary and Poland despite their ongoing devolution into autocracy poses a...

By Eric Segall & Sara Segall Now that Christmas is around the corner, my daughter and I thought it was time to adapt a famous Christmas carol to our times. If you'd prefer hear to hear this performed live, Sara sings it here . On the first day of Trumpism, POTUS gave to me, a con man who starred on TV; On the second day of Trumpism, POTUS gave to me, chants of lock her up, and a con man who starred on TV; On the third day of Trumpism, POTUS gave to me, three Fox News Justices, chants of lock her up, and a con man who starred on TV; On the fourth day of Trumpism, POTUS gave to me, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV; On the fifth day of Trumpism, POTUS gave to me, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV; On the sixth day of Trumpism, POTUS gave to me, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, thre...

Note to readers: The Dorf on Law classic column below was published on August 29, 2017.  It seems particularly pertinent in light of recent events.   For those of you who celebrate Christmas, may your holidays be much happier than the rest of 2020 was.  For all others, may your Thursday be much happier than the rest of 2020 was! 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 m...

  by Michael C. Dorf My latest Verdict column considers a complaint that has sometimes been voiced by lawyers representing Donald Trump in post-election litigation: It's not fair, they say, that the Pennsylvania and Wisconsin Supreme Courts dismissed various of their claims on grounds of laches --that is, for coming too late--when earlier assertion of those claims would have been dismissed as unripe--that is, for coming too early. I explain that while Trump and his lawyers are shameless hypocrites, the complaint could fairly be voiced by others in different circumstances. The window for litigation really can be too tight--like an avocado that goes from hard to rotten with only the briefest period when it is edible. Here I shall take my commentary on Trump's post-election litigation in a somewhat different direction. I offer what might at first appear to be a counterintuitive suggestion: that it was a gift to conservative jurists. By giving conservative jurists the opportunity ...

Note to readers: Before turning to my column for today, I want to provide a link to Professor Dorf's new Verdict column, which was published this morning: " Odysseus, Avocados, and Election Litigation Timing ."  The column discusses yet another after-the-fact Supreme Court filing by the losing Trump campaign, with Professor Dorf focusing in particular on the doctrine of laches, which denies relief when a case was filed unreasonably late.  He also argues that the opposite doctrine, ripeness, should be loosened, for reasons that I encourage readers to discover by reading the piece. I cannot resist adding a comment that is consistent with Professor Dorf's analysis.  The Trump team's current claim is that they are not too late because Biden has not yet been inaugurated.  Only then, they say, will it be too late.  But why should we take them seriously?  They spent the first five weeks after Election Day saying that they had plenty of time before the Electoral Co...

by Sidney Tarrow On December 11th, 126 Republican members of the House of Representatives signed an amicus brief to the United States Supreme Court in support of the State of Texas’s complaint that the votes of four states in the Presidential election should be declared invalid because of supposed electoral irregularities. Texas’ suit was quickly slapped down by the Court . Two Justices, Alito and Thomas, thought the Court should have docketed the case because, in earlier, lower-stakes cases, they had expressed the quirky view that the relevant statute confers on the Court no discretion to reject such “original jurisdiction” suits.  But even Alito and Thomas joined the other seven justices in voting to deny Texas the extraordinary intervention it sought. Although Texas cited The Heritage Foundation’s study of electoral fraud (cit., pp. 11-12) as an authority, even conservative lawyer Hans Von Spakovsky wrote shortly after Texas filed its case, “this is the legal equivalent of a H...

Note to readers: This is the first of this year's "classic" columns, allowing Dorf on Law 's pixel-stained wretches to take some scattered days off during the holidays while giving interested readers an opportunity to read or re-read some of our favorite columns.   We do not entirely go on vacation for the holiday season, however, so you can expect to see many new columns as well as a few classics over the next two weeks. Although we typically choose somewhat older columns for our classics series, the column below is rather recent, published on October 20, two weeks before Election Day.  Since then, as the column predicts, there has been even more pro-Trump violence and threats of violence.  Some states were forced to deploy extraordinarily high levels of security simply to allow their electors to vote on December 14.  Trump's dead-enders will lose their challenges on January 6.   What will his most bellicose supporters do after that gambit fails? by Neil H. Bu...

 By Eric Segall The doctrine of standing has been in the news recently because the Supreme Court dismissed the lawsuit by the State of Texas against the four swing states due to lack of standing, and because Donald J. Trump tweeted about how unfair it was that the case was dismissed because of the doctrine. Of course, there is no reason to think Trump understands anything about standing law, but then again few people do, and for good reason. Of all the constitutional issues I have studied over my 30 years as a law professor, the Court's standing doctrine is the most incoherent. I have yet to meet a federal jurisdiction scholar, liberal, moderate, or conservative, who defends the various aspects of standing doctrine as currently articulated by the Supreme Court. This post discusses one corner of that doctrine because it illuminates well its utter incoherence and provides a behind-the-scenes account of how one landmark standing case was decided. We can see how at least one standing s...

by Neil H. Buchanan Mitch McConnell made news yesterday by acknowledg ing on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past six weeks.  Even so, it is important because McConnell could have chosen to continue to be silent -- or even suddenly to adopt a vocal stance in favor of Trump's madness.  So this is good. Of course, McConnell used some strategic wording.  I was particularly annoyed that he described the election in this way: "The Electoral College has spoken."  I am not saying that this is false.  Indeed, the Electoral College's vote was the precipitating event for McConnell's long-delayed acknowledgement of reality.  Even so, he could instead have said: "The people have spoken."  Or at least something like this: "The...

  by Michael C. Dorf Yesterday, Stephen Miller crammed himself into the clown-car of sycophants making absurd claims on behalf of the would-be Clown-Tyrant-King Donald I. With a claim as deranged and dangerous as any to have oozed out of the skull of Rudy Giuliani or to have emerged from the depths where Sidney Powell's Kraken lurks, the immigrant-hating Goebbels look-alike   announced on FoxNews that in multiple states that Trump lost, "alternate slates" of electors were getting together to vote for Trump anyway. Students of history will recall that such alternative assemblies have played a key role in revolutionary challenges to the established order, usually stating some pretext of a claim to lawful authority. For example, the 576 French citizens who took what came to be known as the "Tennis Court Oath" lacked the power to declare themselves the National Assembly under the rules of the ancien régime; they claimed authority in virtue of the fact that together...

  by  Ronald J. Krotoszynski, Jr. As the Trump Administration goes noisily into its death throes, it would be comforting to think that things quickly will return to normal after Joe Biden takes the oath of office at noon on January 20, 2021.  Such a happy assumption might prove to be unduly optimistic. It’s awfully hard to put Humpty Dumpty back together again after he tumbles from his wall-side perch.  In this instance, “Humpty Dumpty” represents the numerous constitutional norms, conventions, and traditions that Trump and his enablers, both within the Executive Branch and the Congress, have systematically shredded over the past four years. Norms, conventions, and traditions are the tendons that keep our skeletal constitution functioning – and if you lose the tendons, the bones no longer function properly.  Accordingly, as we approach the post-Trump era, one of the structural problems that legal scholars, government officials, and lawyers all need to think abou...

by Neil H. Buchanan   Today's question is: How should we respond to seemingly outrageous legal assertions that would be helpful to our side?  The Democrats' answer has almost unerringly been: "Oh, we dare not.  The voters will punish us, the pundits will shame us, and our friends across the aisle will refuse to work with us."  The Republicans' answer, more and more, has been: "Let's do it!  We can brazen this out, and we'll get what we want.  It worked before, and it will work again.  We've proved it over and over."   With that as the broad framework, my column earlier this week discussed one such seemingly outrageous legal assertion.  There is only one constitutional statement regarding the leadership of the Senate, which is that the Vice President is the presiding officer of that house of Congress.  Moreover, the leadership norms that have governed the Senate in our lifetimes are not even set by statute, much less in the Constitution...

 By Eric Segall In light of a real brief  filed in the real lawsuit of Texas v. Georgia, et. al., on behalf of the States of New California and New Nevada, the New State of Dorf on Law has filed its own lawsuit in the federal district court of New York. Here is the complaint: ----------------------------------------------------------------------------------------------------------------------------- The State of Dorf on Law (“Plaintiff”) hereby files the following lawsuit against the President of the United States Donald J. Trump in his official capacity: Count I:  Said President has used his office to abuse social media in ways causing intentional infliction of emotional distress to people residing in all fifty real states and the imaginary states of New Nevada and New California. Plaintiff hereby requests class action relief under Rule 19 of the Imaginary Rules of Federal Civil Procedure.  Count II: Said President deliberately withheld needed medical care from ...

  by Michael C. Dorf On Tuesday, the State of Texas filed a lawsuit ostensibly within the Supreme Court's original jurisdiction, naming the states of Georgia, Pennsylvania, Michigan, and Wisconsin as defendants. Texas argues that executive and judicial officials in these states violated Article II, Section 1 of the Constitution when they construed their respective state laws in a way that, according to Texas, departed from the supposed constitutional rule that when that provision assigns to state legislatures the power to decide the manner of selecting Presidential electors, it excludes a role for other organs of state government. As I have noted before and as U Illinois Law School Dean Vikram Amar argues extremely persuasively in a new article , although various Justices have expressed support for this "legislatures only" theory, which builds on a three-Justice concurrence in Bush v. Gore , it is very ill-conceived and should be rejected in some future case. But not in...

 By Eric Segall "The most fundamental significance of Scalia's career and jurisprudence lies in the way and extent to which they illustrated the changing, dynamic, and inherently goal-and value based nature of American constitutionalism itself, its truly living nature." Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a " committee of nine lawyers ."  Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism ," that Scalia's legacy demonstrates that he could no more avoid l...

by Neil H. Buchanan More than anything else, Mitch McConnell's actions as Senate Majority Leader have demonstrated that he will do everything that the law allows him to do.  Everything.   It does not matter whether there is a standard, norm, or tradition that he is breaking.  It does not matter whether he loses a few news cycles to hostile coverage of his shamelessness.  It does not matter whether he completely contradicts something that he said or did in the past.  The only thing that matters is that he will maximize his side's advantage under the most extreme reading of the law's bare limitations.   Now, McConnell faces the prospect of serving under a President and Vice President who are Democrats.  McConnell and the Republicans are already making it clear that they will be as obstructionist as possible, gumming up appointments to Biden's cabinet and possibly blocking all of his judicial picks.  Democrats are understandably eager to win the two ...

  by Michael C. Dorf For years, conservatives have criticized those on the left who ground claims for money, status, and other goods in victimhood. The criticism has two strands. First, focusing on victimhood is said to be counterproductive. If you think of yourself as a victim, you will undercut your ability to achieve. Second, claiming victimhood is said to be unfair to the non-victims who are asked to pay the price of repair even if they were not among the perpetrators. Conservative complaints about race-based affirmative action unite these two objections, but so do other complaints, including the mocking of liberal "snowflakes" on college campuses and elsewhere. Given the right's disdain for victimhood-as-moral-high-ground, how do we explain the continued embrace of Donald Trump's self-pitying sore-loserism? We can see the beginning of an answer in a statement Trump made during his Georgia rally on Saturday night: "We're all victims. Everybody here--all ...

  by Michael C. Dorf What fate awaits Donald Trump after he vacates or is forcibly removed from the White House at noon on January 20, 2021? Federal prosecution is a possibility, although Professor Eric Posner raises questions in a NY Times op-ed yesterday about whether Trump has committed federal crimes and even if so, whether prosecuting him would be politically unwise. There is also a chance that Trump would attempt to pardon himself--which, as Professor Buchanan argued here on the blog yesterday , shouldn't work but we can't say for sure because no prior President has had the audacity to try). Or, as Prof Buchanan also explained, Trump might purport to pardon himself, resign the presidency on January 19, and then receive a pardon from Mike Pence after he's sworn in for his one-day presidency. In this scenario Trump would want to pardon himself first as an insurance policy in the event that Pence double-crosses him by failing to issue the pardon--an admittedly low-prob...

by Neil H. Buchanan It is completely sensible, even urgent, for responsible actors to treat the ongoing Trump-didn't-lose circus not only with contempt but with condescension.  It is essential to reinforce the fact that Joe Biden won the election, that the election in every state was fairly administered, and that all of Trump's remaining legal options are somewhere between frivolous and treasonous.  "Donald Trump, whether he likes it or not, will stop being president on January 20, 2021," is the right thing to say. That is not the same thing, however, as ignoring the very real dangers that Trump and his supporters are creating and inflaming.  A Trump lawyer says that the former cybersecurity chief "should be drawn and quartered. Taken out at dawn and shot."  Another says that the Republican governor of Georgia should be harassed until he agrees to violate the law and negate Georgia's election results, at which point the governor is supposed to resign, f...

  by Michael C. Dorf In a recent op-ed in USA Today , Professor Laurence Tribe and I argued that last week's SCOTUS ruling in  Roman Catholic Diocese of Brooklyn v. Cuomo , and especially Justice Neil Gorsuch's concurrence in the case, should raise alarm bells for those who care about imposing very high costs on the American public in order to accommodate or even write into law the views of traditional religious conservatives. We were especially concerned by the juxtaposition of how Justice Gorsuch bent over backwards to find illicit discrimination against traditional religion while essentially mocking a line of cases that provides the bedrock for reproductive rights. We concluded our essay with a literary allusion: "A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place lik...

by Neil H. Buchanan   Just over four years ago, I warned that Donald Trump's 2016 Electoral College victory could represent an "extinction event" for constitutional democracy.   The purpose of a warning, of course, is to offer people the opportunity either to prevent or at least prepare for the consequences of something bad.   In the ensuing years, I have at times (e.g., here and here ) suggested that the United States is in fact a "dead democracy walking," which would mean that it is too late to prevent disaster.  Sadly, this is still true, even if Joe Biden takes the oath of office next month.  The death throes will most likely take a few more years to play out, for which we should all be grateful, but there is no reason to be hopeful that we have restored America and ended Republicans' authoritarian threats going forward.   If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do i...