Dorf on Law

by Neil H. Buchanan   As of a few minutes ago, it appears that there will be no government shutdown tonight, with the Senate set to approve a stopgap measure to fund the government all the way into early December.  Woo hoo!!  Seriously, that is good news, mostly because it means that the American people (and especially federal employees who are deemed "nonessential") will not be forced to suffer through another pointless and damaging shutdown.   Analytically, it also means that we might now be able to talk about the impending debt ceiling crisis without having to explain that shutdowns and debt defaults are very much not the same thing.  The former are bad but containable and somewhat remediable.  The latter would be catastrophic.  Given how incompetent even the most elite news reporters are in discussing these issues, however, it is always bad when the two issues become newsworthy at the same time. I thus come to you today to talk about the debt ceiling.  How many times ha

  by Michael C. Dorf As regular readers of this blog will have inferred, on alternate Wednesdays I frequently use this space to write an essay that complements my bi-weekly column on Verdict . I shall follow that practice today, albeit with a somewhat tenuous connection to my latest column. However, before doing so, I'll take the opportunity to call attention to two other just-published works of mine that, through the vagaries of publication schedules, give the false appearance that I've been writing around the clock in the last couple of days. First, as Professor Buchanan explained yesterday , he, Professor Tribe, and I have an op-ed in the Boston Globe responding further to John Eastman's outrageous efforts to persuade former Vice President Mike Pence to facilitate Donald Trump's defiance of the 2020 election. We wrote it together because, as I noted last week , Eastman's already-infamous memorandum linked exactly one external source: a Verdict column that the t

Note to readers: Several hours after publication, I added what are now the fourth- and fifth-to-last paragraphs of this column, and I edited the paragraph that immediately precedes them.   by Neil H. Buchanan What will happen if the Democratic nominee in 2024 wins the presidential election, both in the popular vote and in the Electoral College?  As we learned in the first week of 2021, perhaps anything could still happen.  Even setting aside a possible repeat of the domestic terrorism that we witnessed on January 6 -- most likely with greater loss of life, should it come to that -- what if Republicans claim that they have the right to set aside the results of the next election? In an op-ed that ran in yesterday's Boston Globe , " How to prevent the legal strategy that nearly undid the last election from ending democracy ," Larry Tribe, Mike Dorf and I endorse the passage of H.R.1, which would go a long way toward fixing our electoral system's most important problems

  by Michael C. Dorf Justice Breyer has been hitting the talk-show circuit lately, making two notable claims: (1) that he doesn't intend to die while on the Court; and (2) that the Supreme Court isn't political. Both claims emphasize what he wrote in his new book, The Authority of the Court and the Peril of Politics , which he has been assiduously promoting. It's not clear which claim is more dangerous. The obvious peril from claim (1) is that Justice Breyer--like every other human being on Earth--has limited control over the timing of his passing. In an interview with the NY Times last month, Breyer at least had sufficient sense to recognize that his intention not to die while serving on the Court was ultimately a mere "hope." Speaking of which, one hopes that Justice Breyer has decided but not announced that he will retire no later than the end of the coming Term, which will ensure that a Democrat appoints his successor but only if none of the Democratic senat

by Neil H. Buchanan Dear  Dorf on Law  readers: This has been a very unusual week, starting with my first international travel of the COVID era, resulting in a 5-hour time difference, jet lag, and the associated disorientation. Since arriving in Cambridge, I’ve published  one  Dorf on Law  piece , an unscheduled  Verdict  column , and a  guest op-ed  in  The Hill . And for those who just can’t get enough Buchanan,  an article  on the debt ceiling in Congressional Quarterly’s  Roll Call  includes some of my choice words. All of which is a long and self-important way of saying that I have no additional content for  Dorf on Law  today.  It’s time for some warm, flat beer. Have a great weekend!

  by Michael C. Dorf On December 1, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization , in which Mississippi asks for either an outright overruling or serious curtailing of the cases recognizing a constitutional right to abortion. On Monday of this week, amicus briefs in support of respondent were due. Just as it received a boatload of amicus briefs decrying abortion in July, so on Monday the Court received a whole lot of briefs urging the justices to affirm the lower court decision invalidating Mississippi's ban on most abortions after (what it defines as) 15 weeks' gestational age. Today I'll take as my point of departure the amicus brief with which I'm most familiar-- one filed on behalf of me and 12 other constitutional law scholars (Lee Bollinger, Erwin Chemerinsky, Sherry Colb, Dan Farber, Joanna Grossman, Leah Litman, Martha Minow, Jane Schacter, Suzanna Sherry, Geof Stone, David Strauss, and Larry Tribe ). The core of

by Neil H. Buchanan It appears that I will be part of an odd footnote to an odd footnote to history.  As Professor Dorf described in yesterday's column here , one of Donald Trump's legion of Giuliani-like lawyers apparently wrote a memo shortly before the January 6 insurrection, detailing a legal strategy that (in Trumpists' minds, anyway) would have allowed them to keep Trump in office after January 20.   The one and only citation in that memo was to a September 20, 2020 Verdict column that I co-authored with Professors Dorf and Laurence Tribe, meaning that our names are embedded in a seditious legal fiction that will surely end up in the national archives.  Yay us?  Posterity will never forget! Professor Dorf has already explained the lowlights and eviscerated the pathetic legal analysis that Trump's hack (and now-former law professor) cooked up, so there is no need to get back into that here.  Instead, I want to explain the one thing that the memo's author man

by Michael C. Dorf You really can't make this stuff up. Here's the latest revelation from the forthcoming Peril by Bob Woodward and Robert Costa: In the days leading up to January 6, Donald Trump enlisted now-former-Chapman-law-professor John Eastman to try to persuade Mike Pence that as Vice President he had the unilateral authority to throw out the electoral votes of enough states to give Trump the lead and then declare him the winner of the election. CNN reports that Woodward and Costa retell details of a January 4 Oval Office meeting in which Trump said to Pence: "You really need to listen to John [Eastman]. He's a respected constitutional scholar. Hear him out." Fortunately, Pence did not listen to Eastman, instead receiving sound and sober advice from his fellow Hoosier VP Dan Quayle, who, for all his shortcomings, is apparently a hero of the American republic. Meanwhile, CNN has also released a two-page memo supposedly written by Eastman and purportedly s

 By Eric Segall Last week I debated affirmative action with UCLA Law Professor Richard Sander in front of GSU students (virtually) and was asked by my faculty, along with Professor Anthony Kreis, to prepare a presentation on the pros and cons of twitter for furthering professional development. These events caused me to reflect on when and where civility is important and how social media fits into that question.  In an excellent and thought-provoking post  on this blog last Monday, Professor Sherry Colb explained what happens when people abuse the civility norm or invoke it hypocritically.  I'll have a little more to say about her chief example below, but for the most part I want to talk in this post about the value of the norm when it's not being abused. I have come to the conclusions that civility is almost always essential in public discourse, that finding common ground with folks you disagree with makes for better, more high minded discussions and debates, and that it is qui

  by Michael C. Dorf On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity. My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they

[Note to readers: Today's Verdict column, " Why Do We Continue to Use Loaded Words Even When We Know that They Have No Meaning? " represents my latest attempt to channel George Orwell.  I always fall short, of course, but I hope that the column might nonetheless be of some interest.  In any event, the column below addresses a completely different topic.]     by Neil H. Buchanan   Earlier this month, I again found myself describing various extremes to which the wholly autocratic Republican Party might yet resort.  In that column, the I-can't-believe-it's-even-possible-to-be-saying-this possibility du jour was the creation of new U.S. states and the elimination of existing states, in "what would amount to a gerrymandering of the Senate."   Was that scenario "out there"?  Sure, but so was the January 6 insurrection -- not to mention Republicans' subsequent efforts to ignore, justify, and shift blame for that horrible day.  I ended that colu

 By Eric Segall In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism."  I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

by Neil H. Buchanan Last week, I wrote what one might charitably describe as an unrestrained response to Senator Joe Manchin's continued attempts to use cliches and (at best) half-truths to defeat his Democratic colleagues' current spending proposal.  They plan to supplement the physical infrastructure bill that Manchin supports with a "human infrastructure" bill, which is merely a way of saying that the government would invest in improving human beings' ability to function in the economy.  Manchin only wants the bricks-and-mortar bill. The gist of my argument was that Manchin is engaged in shameless pandering and intellectual dishonesty, an argument that was easy to support by looking at Manchin's own words.  After writing that column, however, I had an "academic moment," in which I returned to a scholars' best instinct: Take a person's words as if they were offered in good faith and ask whether his arguments leave room for reasoned debate

by Sherry F. Colb On September 9, Professors Cornel West and Robert George visited Cornell Law School to engage in civil conversation about topics on which they might disagree. My colleague and friend, Professor Sheri Johnson, expertly moderated the discussion. As a general matter, I like civility. When one can achieve positive ends without being disagreeable, civility is highly desirable. There is, however, a downside to civility that emerged for me as I observed the conversation. During the discussion, Professor Johnson at one point asked the two men what they thought of the Texas abortion statute that has lately been in the news, SB8. The law prohibits all abortions (save those necessary to prevent a mother's death) starting at six weeks gestation, and it deputizes any private person in the world to bring a lawsuit against a person who induces or performs an abortion or who "aids and abets" the performance of an abortion. I wrote at greater length about this law  here

by Neil H. Buchanan     Yesterday, The New York Times op-ed page ran the latest column from one of their very best (if not the best) opinion writers, the former Supreme Court reporter Linda Greenhouse.  The piece's title, " God Has No Place in Supreme Court Opinions ," if anything undersells the import of Greenhouse's coolly impassioned and incisive reaction as the United States "lurches toward theocracy."   As it happens, just the day before, I had stepped a bit outside of my usual lanes and published a Verdict column discussing this very issue: " What Would the Church-State Divide Look Like If I Were God? (Irony Alert) ."  I typically encourage readers of Dorf on Law to click on my Verdict columns.  Today, I encourage all of you first to read Greenhouse's column and only then to read mine, if you have time.  I believe that my column is worth reading (as one might expect), but I know when to acknowledge a master at work. Here, I want to d

  by Michael C. Dorf Although not widely known by non-lawyers, attorneys who practice in the federal courts are very familiar with the 1908 case of Ex Parte Young  for two main reasons. First, it is the leading case articulating the legal fiction that a lawsuit against a government official seeking an injunction directed at that official to act or refrain from acting in some way is not a suit against the state barred by sovereign immunity. Second, Ex Parte Young is commonly cited as vindicating the existence of a cause of action or legal claim against such officials. In this second function, Ex Parte Young is somewhat redundant with the injunctive relief available against government officials under the main civil rights statute, 42 U.S.C. Sec. 1983. However, there are some circumstances where Ex Parte Young is not redundant. For example, in a case like the 2002 SCOTUS decision in  Verizon Md v. Public Serv. Comm'n , the plaintiff was permitted to bring an Ex Parte Young action to 

by Neil H. Buchanan Last week, I heard that West Virginia's senior U.S. Senator, Joe Manchin (D, who apparently thinks that it is good form to headline at fundraisers for Republicans in other states) had written an op-ed announcing that he was going to oppose what is now widely known as the Democrats' $3.5 trillion infrastructure budget bill.  No surprise there.  I then noticed that a few commentators had responded with some much-deserved snark at Manchin's call for his colleagues to "take a strategic pause," which was just a few nutrition-free morsels of word salad from the good senator.  Other than that, however, I did not think much more about it. Yesterday, however, a colleague asked me what I thought about the op-ed, which had been published last week on The Wall Street Journal 's infamous op-ed page.  (I am not providing a link to the piece, because it is behind a paywall.  Rupert Murdoch is rich enough.)  After cursing my colleague for putting me in th

  by Michael C. Dorf The Texas Republican lawmakers who enacted S.B. 8 --which forbids abortions after roughly six weeks and relies exclusively on private enforcement--bear primary responsibility for both the violation of the constitutional rights of Texans and for the diabolical scheme to deprive them of their ability to challenge the violation before it is too late for thousands of them. That said, the U.S. Supreme Court also bears substantial responsibility. Much of the SCOTUS responsibility arises out of its refusal to grant interim relief last week. Although I strongly disagree with that decision in light of the balance of the equities, as Chief Justice Roberts recognized in his dissent, the per curiam opinion is not wrong that existing precedent leaves open the question whether elimination of public enforcement enables state legislation to circumvent a pre-enforcement challenge--even when a law's chilling effect will very substantially delay or impede the ability of the l

by Neil H. Buchanan What will happen when Republicans complete their anti-constitutional, anti-democratic, and anti-republican takeover of the federal government?  I have been addressing various aspects of that question over the last year or so, including in yesterday's new Verdict column: " A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy ," which was a prediction and warning about how federal, state, and local government relationships will change after Republicans have ended meaningful elections at the federal level. In that column, I devoted only a small part of the analysis to the federalism aspects of reproductive rights.  Writing less than forty-eight hours ago, I (along with almost everyone) had not yet learned what the Supreme Court was going to do (or not do) about the Texas abortion-vigilante law.  After the release of the Court's shocking non-decision, Professor Dorf guided us through how that non-enjoined law could and

  by Michael C. Dorf Dissenting from last night's 5-4 order rejecting the plaintiffs' request for an emergency injunction of the Texas "heartbeat law, " Chief Justice Roberts spoke for himself and his three more liberal colleagues when he wrote that they would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws [by relying exclusively on private enforcement]. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. Both the consequences of approving the state action, both in this particular case and as a model for action in other areas , counsel at least preliminary judicial consideration before the program devised by the State takes effect. (Emphasis added). It is not difficult to imagine how the heartbeat law's enforcement provisions--relying exclusively on private enforcement by granting power to &q

  by Michael C. Dorf My latest Verdict column discusses a lawsuit by Mexico against various U.S. firearms manufacturers and sellers. As I explain there, Mexico raises tort claims under Connecticut and Massachusetts law, but its main obstacle will be a federal statute , the Protection of Lawful Commerce in Arms Act (PLCAA), which shields U.S. firearms manufacturers from most lawsuits claiming that they are responsible for harms caused by criminals using their weapons. I discuss Mexico's two main arguments (at which the complaint merely gestures, because it falls to the defendants to raise PLCAA as a defense): (1) that the defendants' conduct puts the lawsuit within an exception to PLCAA; and that even if not (2) PLCAA doesn't apply to litigation seeking redress for harms occurring outside the U.S. My column expresses sympathy for Mexico but doubts about the likelihood that it will prevail. After all, as I observe at the end, PLCAA is "a deplorable gift from Congress to