Dorf on Law

  by Michael C. Dorf When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond  the authority Congress had delegated  to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in  Terkel v. CDC , even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule. That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

  by Michael C. Dorf In an important essay  earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice . Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death. Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the...

by Neil H. Buchanan   Donald Trump left office without pardoning himself, surprising many people -- certainly including me .  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.   Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket. ...

by Neil H. Buchanan At this point, it appears that most homes and businesses in Texas have at long last had their electric power restored.  If any are still without service, they are in the second week of living in 18th Century conditions, which millions upon millions of Texans experienced for many days last week.  And even now, houses with electric power restored do not have running water, with plumbers working day and night to work through waiting lists that run into the thousands (per plumber). In a column last week, I noted how quickly life becomes truly elemental when the foundations of modern living disappear.  Being thrust into a feral life is jarring, and humans understandably have psychological safety mechanisms that allow us to forget very quickly how awful things felt while we were waiting for normal life to return.  And as I pointed out, even when a power outage is relatively short, the temptation to say that it was "only 10 hours" or "only two days" m...

by Michael C. Dorf The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded. That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons. Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said  too much , and thereby  changed the underlyin...

 by Diane Klein Noted public intellectual, best-selling author, and co-chair of Bernie Sanders' presidential campaign Cornel West is threatening to leave Harvard, for a second time .  He has stated that "the administration disrespected him by denying his request to be considered for tenure."  A statement like this was crafted carefully, and it has to be read carefully.  First of all, West has not been denied  tenure.  It would appear that he was turned down after requesting "to be considered for tenure."  Why would he have to make such a request? Presumably, because he holds a position that is not eligible for tenure.  Is turning him down a sign of "disrespect," as he claims?  Or did West voluntarily accept a position that was ineligible for tenure - only to complain a few years later that Harvard refused to consider him for a status that was never part of the job? And why does it make such a difference?

by Neil H. Buchanan   The crisis in Texas this week is causing misery on a vast scale.  People who rely on electrical devices to keep themselves alive are not able to recharge batteries.  Hospitals have been without power or water for days.  People are being forced to live in group settings with strangers during a pandemic -- where such options are even available -- simply in order to survive.  Some are sitting in sub-freezing homes, trying not to die of hypothermia.  Not all are succeeding. My worst personal experiences with power outages have been two 3-day disruptions during winter storms, but in each case the weather dramatically improved while I was without power.  Also, because the outages were spotty and not region-wide, the only question was whether I would need to drive two towns over to get a hot meal from a restaurant.  Nonetheless, it was amazing how quickly life could change, where even sitting in a house that is 50 degrees Fahrenhei...

  by Michael C. Dorf The ongoing crisis in Texas and other states that have experienced atypically wintry weather is first and foremost a humanitarian challenge for the people affected. I feel nothing but concern for those suffering from cold, power outages, unsafe drinking water, and the associated ills. I urge readers who share that concern to donate to one or more relief organizations providing direct aid. I also hope that no one will mistake the following analysis of legal issues raised by one aspect of the response to the crisis for callousness or insensitivity. As was widely reported , yesterday Texas Governor Greg Abbott ordered that natural gas slated for delivery out of state be offered first to in-state power operators. In a moment I'll turn to the question that titles today's essay, but I want to begin with some procedural complexities. The story just linked refers to "a copy of Abbott’s order seen by Bloomberg" News. Likewise, a press release issued by G...

  by Michael C. Dorf After an assault on the democratic order, it is understandable to glorify the legal basis for that order, especially in the United States, which tends to Constitution-worship even in the best of times. Yet a moment's reflection reveals that the despicable attack on democracy by Donald J. Trump and those in the thrall of his personality cult was not merely an attack against the Constitution; it was facilitated by the Constitution's flaws. Here are some features of our Constitution that combined to enable Trump's assault: (1) The Electoral College--our byzantine system for choosing a chief executive whose current powers are better suited to one elected by plebiscite---not only distorts campaigns to focus on a handful of swing states at the expense of voters in all the others but periodically turns what should be easy-to-call election-night outcomes into nail-biters that then make contests over a relatively small number of votes consequential. Elections ...

by Neil H. Buchanan What is a technicality?  In the echo chambers of political punditry, certain words and phrases gain favor, allowing writers not to think deeply about issues even as they sound familiar notes to project seriousness.  Lately, among those who are disappointed that the Senate did not reach the two-thirds threshold to formally convict Donald Trump in the impeachment trial, the unfortunate move is to describe Republicans' dodging of the issue as hiding behind a technicality.   Aaron Blake, a Washington Post reporter, wrote that "Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional."  Similarly, Michelle Goldberg, the progressive New York Times columnist, yesterday disparaged Minority Leader Mitch McConnell for relying on the "manufactured technicality ... that a former president is 'constitutionally not eligible for conviction.'"   ...

by Diane Klein Have you ever heard of Sidney Carlton?  I hadn't, until very recently.  I had of course heard of Emmett Till, the 14 year old whose murder in 1955 by vicious White supremacists seared the nation's conscience and helped impel the Civil Rights Movement.  I had also heard of Roy Bryant and J.W. Milam, the men who killed him, brutally and unapologetically, then brazenly pleaded "not guilty" at trial, celebrated their acquittal - and then openly admitted their crime in Look  magazine a year later, protected by double jeopardy.  But I hadn't heard of Sidney Carlton, one of their lawyers, the man who closed his argument by telling the all-White, all-male jury, "Your ancestors will turn over in their grave, and I'm sure every last Anglo-Saxon one of you has the courage to free these men."  Sure enough, they did, just over an hour later.   [Left: Sidney Carlton confers with Milam and Bryan, 1955; right: the Emmett Till jury, 1955] Sidney Carl...

 By Eric Segall The defense team defending Donald Trump said on several occasions Friday and Saturday that incitement is "only about the words of the speech," and that events that happened before and after that speech are irrelevant. Although the requirements for incitement for criminal conviction do not technically apply to impeachments, it is beyond doubt that even in criminal trials context is often the deciding factor in incitement cases. Trump's lawyers are just flat out wrong on this, but it is easy to see why they are making this demonstrably false argument. They don't want to admit the months of lying, inciting, and taunting by Trump, all of which led to the tragic attack on the Capitol. 

by Neil H. Buchanan The House's impeachment managers rested their case yesterday, powerfully concluding a necessary national immersion into the events that led up to the January 6 insurrection and the horrors of that day.  If nothing else, the Democrats successfully reversed the shocking national amnesia that had set in over the last five weeks.   Republicans have, all too predictably, continued their contradictory and bad faith responses -- "What kind of trial has no witnesses?" "If the Democrats dare to call witnesses, we'll freak out!" "They're going through this too quickly!" "They're going through this too slowly!" -- and the outcome is so little in doubt that Trump's lawyers are going to essentially submit a Post-It note for their defense today and then rest. Although I have argued passionately that there is only one right outcome to this trial on its own terms, I have also expressed doubts about whether the outcome ma...

by Neil H. Buchanan The ongoing Senate trial of Donald Trump has been riveting, to say the least.  If ever there were any doubts about the value of following the constitutional process, even when the outcome is a foregone conclusion, those doubts have been definitively extinguished.  The public now has a much better, more complete understanding of what led up to the January 6 insurrection, as well as the horrors of that day itself -- which, we now are seeing, could have been much, much worse. On Tuesday of this week, I published a column on Verdict under the somewhat misleading title, " Would Senate Republicans Abandon Their Baseless Arguments if There Were a Secret Ballot? "  I describe that title as misleading because the vast majority of my analysis was not devoted to the secret ballot question in any direct sense.  Instead, I used comments by retiring Ohio Senator Rob Portman to expand on my recent critiques of Republicans' text-based claim that the Senate tria...

 by Diane Klein J. Mark Ramseyer , Mitsubishi Professor of Japanese Legal Studies at the Harvard Law School, has published one of those law and economics papers that so many of us have come to dread - you know, the kind that revisits some historical horror to explain to us why " game theory " makes that historical horror perfectly OK, if you look at it just so .  Or why some reactionary or bigoted political position somehow just makes rational sense . It's the kind of pseudo-scholarship that demands that the reader first abstract away from everything that actually matters in law (like the fact that human beings are involved), and then reasons tendentiously but triumphally to its preordained conclusion.  The most notorious of such papers also typically contain an aspect of the "naughty"/prurient - these brave scholars are daring  to say what no one else will, about some taboo subject or other.  This time, it's Ramseyer's argument that " well, actuall...

  by Michael C. Dorf On Thursday evening, I'll be one of three panelists appearing at a webinar hosted by the Federal Bar Council on the topic Religious Freedom 2021: Too Much or Not Enough ? I look forward to an interesting exchange with my fellow panelists, attorney Alphonso David of Human Rights Campaign and Notre Dame Law Professor Stephanie Barclay. I hope we can also engage the substantive views of our moderator, Berkeley Law Dean Erwin Chemerinsky. Attendance at the webinar is free and open to the public, but you need to create an account and register in advance--which you can do by following this link . Federal District Judge Pamela Chen of the EDNY contacted us about participating in the panel a few months ago, so it is a coincidence that it comes close on the heels of the Supreme Court's latest ruling (its fourth in less than a year), in a case that pits religious freedom claims against state governments' efforts to limit the spread of COVID-19. Late last week, th...

By Matthew Tokson I recently wrote an article with Ari Ezra Waldman, " Social Norms in Fourth Amendment Law ," forthcoming in the Michigan Law Review . We look at how courts use social norms throughout Fourth Amendment law and point out several problems with this quasi-sociological approach.  In theory, social norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. But in reality, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. We explore some contemporary sociological literature on social norms and the social construction of technology that bear this out. And we examine how courts’ reliance on norms leads to identifiable errors in Fourth Amendment jurisprudence.

  by Michael C. Dorf Last week Donald Trump's (latest batch of) lawyers filed their formal Answer to the impeachment charge. It makes two main arguments: (1) that the Senate trial is unconstitutional because Trump is no longer president; and (2) that Trump was merely exercising his constitutional right to free speech. Point (1) is very clearly wrong, as numerous commentators, including Prof Buchanan on this blog , have pointed out. Neither Trump's lawyers nor the 45 Republican Senators who accept this makeweight argument have an answer to the objection that under their reading of the Constitution, an officer could evade the express provision for disqualification by resigning the moment after the Senate convicts. I'll say more about Trump's free speech defense momentarily, but first I want to address one other bit of illogic in the Answer. The Answer walks up to the line of asserting Trump's own lies about voter fraud but does not quite get there, instead contending...

By Michael C. Dorf On Wednesday, the Supreme Court unanimously rejected a lawsuit by the heirs of German Jewish art dealers who alleged that Nazi Hermann Goering had forced their ancestors to sell extremely valuable works for about a third of their market value. The bottom line in Federal Republic of Germany v. Philipp  may well be defensible on the merits. A German cultural institution and a commission that investigates art stolen by the Nazis concluded that the particular works in question were actually sold at fair market value. That determination might be right and could be entitled to some sort of preclusive effect in any event. However, the US Supreme Court's decision was not based on the merits or deference to another adjudication. Rather, the Court held that the Foreign Sovereign Immunities Act  (FSIA) does not authorize suit, thus leaving intact Germany's foreign sovereign immunity. Put differently, the Court would have ruled against the heir-plaintiffs even if the ev...

by Neil H. Buchanan On January 5 of this year, no one could have known precisely what would happen the next day, but at least some of us were on high alert.  In my Dorf on Law column that day, I wrote that many people were "terrified about the treasonous actions of Donald Trump and his parasites."  For weeks, we had noted with alarm that Trump had promised his followers that his January 6 event was going to "be wild," and indeed it was. Even so, my column that day was not focused on Trump's soon-to-bear-bitter-fruit attempts to carry out a coup to keep himself in power.  Instead, I preferred to imagine that he would fail (as he has so often failed) and that something like the familiar policy debates might again come to the fore: "This column, then, is an expression of optimism.  We might soon, I dearly hope, be back to arguing about legitimate differences over policy matters.  More interestingly, we might soon be back to waging an important intramural...

  by Michael C. Dorf My latest Verdict column uses the border wall litigation before SCOTUS to lament the incredible complexity of federal court procedural law. I direct interested readers to the column for further details, but here's the barebones summary of the background: (1) Trump declared an emergency to move money Congress appropriated for other purposes to border wall construction; (2) environmental and other public-interest organizations that would be injured by the border wall sued to block it and won in the 9th Circuit ; (3) Trump's DOJ went to SCOTUS arguing that plaintiffs lack a cause of action and do not fall within the zone of interested protected by the statute on which they rely; (4) plaintiffs, with support from amici including yours truly , argued that where, as here, plaintiffs seek to enjoin unconstitutional action, they do not rely on a statute for relief and thus have an equitable cause of action to which the zone-of-interest test does not apply; (5) Pre...

by Neil H. Buchanan   Last Thursday, I wrote paired columns on Verdict and here on Dorf on Law in which I responded to Senate Republicans' claim that the Constitution does not allow a former president to be impeached or convicted.  I explicitly stated in those columns that my purpose was to show that the constitutional text alone made clear that their argument is wrong. I did not, of course, endorse textualism as that term is currently understood and used by conservative legal scholars.  And I went to great pains to say that there are excellent non-textual arguments -- based on precedent, original intent, pre-Constitutional history, policy implications, and so on -- that take us to the same conclusion, which is that the Senate can and must uphold our constitutional order by trying and convicting Donald Trump.  One particularly good contribution to that list of other arguments, from Professor Bob Bauer of NYU Law, can be found in today's New York Times .   In ...

By Eric Segall Less than ten miles from my home near Emory University in Atlanta is Georgia's most popular public attraction. Every year approximately 4,000,000 people drive through Stone Mountain Park to visit one of its many exhibits. To get from the entrance of the park to the popular hiking trail at the bottom of the mountain, visitors go down Jefferson Davis Drive and then pass Stonewall Jackson Drive and Robert E. Lee Boulevard. At the bottom of the trail leading up to the mountain is an American flag and four Confederate flags for all to see. Here is a picture: In addition, at the center of the park is, of course, the largest confederate symbol in the country: a nine story etched carving of Jefferson Davis, Stonewall Jackson, and Robert E. Lee.  Here is a picture that does not do justice to the size of the etched carving. The flags and the huge carving do not represent anything other than naked racism. Work started on the park in 1915, but it wasn't accessible to the ...