Dorf on Law

by Michael C. Dorf Constitutional law is replete with tests that are not literally found in the text of the constitutional provisions the tests implement. For example, time, place, and manner restrictions on speech on government property that is a public forum are permissible so long as they are content-neutral and leave open adequate alternative opportunities for speech. Race-based classifications by government are impermissible unless they are the least restrictive means of advancing a compelling governmental interest . Police investigative activity constitutes a search within the meaning of the Fourth Amendment if it violates a reasonable expectation of privacy . None of the italicized phrases in the foregoing paragraph appears in the relevant constitutional text. And while conservative scholars and jurists sometimes complain (selectively) about courts reading into the Constitution concepts that its text does not contain, they routinely apply existing tests and often formulate...

by Neil H. Buchanan   In a recent Dorf on Law column , I offered a parenthetical observation at the end of the opening paragraph: "Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!"  Oddly enough, the topic of that column was tax policy, but it is in fact fitting that it somehow made sense to make a sarcastic remark about culture-war tropes even while writing about such a mundane topic.  The Republicans' grievance machine is working overtime, and it is flooding even unexpected corners of our existence with hate. Even in the best of times in this country, it was not outright shocking when right-wingers would insult people on the left with weird personal attacks.  "Why do you hate America?" was their response to critics of the Iraq invasion in 2003, for example.  In my f...

  by Michael C. Dorf Much of yesterday's oral argument in Biden v. Texas focused on statutory meaning. To oversimplify somewhat so I can get to my main point for today's post: (1) A statutory provision tells the federal government that undocumented immigrants seeking asylum "shall be detained;" (2) but Congress has never appropriated nearly enough money to pay for the cost of detaining all but a relatively small fraction of such asylum seekers; (3) not withstanding the detention obligation, the same statutory provision states that the Attorney General "may return" asylum seekers to a contiguous country (i.e., Mexico or Canada) from which they entered, although of course the government cannot do that without the contiguous country's agreement; (4) yet another statutory provision  authorizes the Secretary of the Department of Homeland Security "in his discretion" to "parole" otherwise not-yet-admitted undocumented immigrants (includin...

by Neil H. Buchanan The increasingly intense Republican efforts to energize their angriest voters with nonstop culture-war battles is truly a national effort.  Even so, because Republicans' power is currently limited to the state level, the action is happening in statehouses rather than in Washington, DC.  With hundreds of state-level Republicans -- those now in office as much as those who are trying to win party primaries -- trying to prove who is the Trumpiest of them all, one might imagine that it would be difficult to identify an epicenter of the most intense activity. Please forgive me for this groan-inducing play on words, but there is an epicenter, and it is the home of Epcot Center.  (That was almost as bad as Maureen Dowd's typical column.  I am truly ashamed.)  Despite occasional efforts by Texas Republicans to take the lead, Florida is where the most extreme action is.  There is so much going on here that it is nearly impossible to keep up....

 By Eric Segall The first amendment provides that the government may make no law "respecting an establishment of religion or prohibiting the free exercise thereof." Not too long ago, the Supreme Court took both parts of the religion clauses of the first amendment seriously. The Court, however, has now decided to breach the wall of separation between church and state by effectively reading the establishment clause out of the Constitution and by re-interpreting the free exercise clause to not only bar discrimination or punishment of religion by the government but also by forbidding states from relying on establishment clause concerns to justify keeping government and religion separate. The result is a theocratic Supreme Court imposing its strong religious beliefs on both the states and the American people. These dramatic changes have occurred not because of any change in constitutional text or new historical insights but because the Justices' values have changed.  Not too ...

  by Michael C. Dorf In a recent blog post , Professor Eugene Volokh considers the question whether Florida's imminent withdrawal of the very substantial legal benefits it had bestowed on the Disney Corporation--in obvious retaliation for Disney's opposition to Florida's "Don't Say Gay" legislation--violates the First Amendment. Although Professor Volokh's views overall could be fairly called center-right (with a strong libertarian streak) while mine could be called center-left, we often agree and sometimes work together ( e.g., here ) on free speech issues. I find Professor Volokh's post characteristically thoughtful and balanced. He first sets out the precedents and principles that might lead one to conclude that Florida will violate Disney's free speech rights if, as seems likely, it revokes Disney's various privileges and breaks. Employee speech cases are most apt here. As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendel...

By Eric Segall A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway.  I was probably wrong. I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk abo...

by Neil H. Buchanan There was a time when conservatives could plausibly claim to favor law and order.  Although that was always deeply infused with racism and included a lot of nodding and winking at various types of atrocious behavior (see, for example, the excuses for privileged White males to get away with sexual assault, because "boys will be boys"), they were at least able to say with a straight face that they wanted (most) laws to be enforced and that (most) people should live by the law. That is plainly no longer even arguably the case, but how did the change happen?  As it turns out, the area in which conservative politicians began to be openly contemptuous of law and order was taxes.  Lacking the political will to cut rich people's taxes as much as they wanted, the next best thing was to make everyone hate taxes and tax enforcers so much that there would be revulsion against the very idea of enforcing taxes.  Although Donald Trump is an extreme outlier in m...

  by Sherry F. Colb [Note to readers: The following is the text of remarks I recently made on the Think Like a Vegan  podcast. If you prefer to listen rather than read, you can do so here  or on the Think Like a Vegan feed on Apple podcasts, Spotify, or Stitcher.] When I first became vegan and told people about it, I ended up hearing many surprising questions. Some of the questions came from sincere curiosity, and I think some might have come from resistance. I remember not being vegan and wanting to come up with a question that would stump vegans and lead to the conclusion that I could continue to eat animals and their reproductive secretions. Regardless of why someone was asking a question, I tried to treat both the person and her question with respect. Getting angry, annoyed, or impatient in response to questions would surely turn people off veganism. If we are having a conversation about it, then change is possible. The question I want to talk about today is some vers...

by Neil H. Buchanan Yesterday, April 18, was the last day to file returns with the IRS for the 2021 tax year.  Well, not really, as I will explain below, but that is how this is generally reported in the news.  Normally, April 15 would have been the relevant date, but because that fell on Good Friday this year, the relevant decision makers decided that the US Treasury should not wage a War on Easter and thus pushed the filing date back.  (Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!) There are two competing points that I want to make here about tax filing.  First, it is nowhere near as difficult as people make it out to be, with the IRS doing an amazing job of simplifying the process, against all odds.  But second, tax filing should be nowhere near as difficult as it still is...

by Michael C. Dorf Regular readers of this blog and/or my scholarship know that I am a longtime skeptic of constitutional originalism. I've expressed my skepticism in numerous places, but you can find a fairly concise explanation at pages 696-701 of this article in the  Catholic Law Review , which reproduces remarks I delivered at a 2019 Federalist Society panel with Professors Sai Prakash and Rick Pildes, as well as Judge Thomas Hardiman and then-Judge (now-Justice) Amy Coney Barrett. Here's an even shorter version: I regard "old" originalism, which focused on the intentions and expectations of the framers and ratifiers, as unjustifiable in principle; so do most self-described originalists. I regard "new" originalism, which focuses on the constitutional text's original public meaning, as a substantial improvement in theory but extremely under-determinate in the kinds of contested cases in which it is typically invoked, and thus ultimately unhelpful. If ...

by Neil H. Buchanan Yesterday, the Republican National Committee voted unanimously to stop working with the Commission on Presidential Debates.  This is the same committee that, less than two months ago, censured Congresspeople Liz Cheney and Adam Kinzinger, a resolution that "passed overwhelmingly on a voice vote without debate or discussion."  That resolution also infamously included the claim that the January 6 rioters were engaged in "legitimate political discourse," an outrageous assertion that the RNC's chair then tried to explain away (rather unsuccessfully). We are not, in other words, talking about a group of political leaders who are known for putting country above party or even for being grounded in reality.  Basic decency used to be optional (albeit disadvantageous) among that group, but now it is disqualifying.  Even so, because the decision to withdraw from future presidential debates is a matter of pure political strategy rather than some larg...

by Neil H. Buchanan The cynical game of ranking universities, colleges, and their sub-units has been destroying higher education for decades.  Although it is understandable that people would hope to find an objective method by which to compare different institutions ("Should I pay to send the twins, Missy and Trip, to College A or University B?"), no such method exists -- nor could it exist.  The entire enterprise has too many moving parts, and the people who rely on rankings have too many different goals and motivations, to make rankings meaningful.   And although it was once defensible to say that the perfect -- the Platonic ideal of comparatively measuring institutions' relative quality -- should not be the enemy of the good -- having at least a workaday, rough estimate of comparative quality, so that we could confidently claim that say, UCLA is superior to Florida State but that UCLA and Michigan cannot meaningfully be ranked relative to each other -- we quickly disc...

  by Michael C. Dorf In my latest Verdict column , I discuss two recent Supreme Court cases, decided one day apart. In a case on the plenary docket,  Ramirez v. Collier , the Court held that Texas could not deny a condemned man the right to have his pastor lay hands on him and pray audibly in the execution chamber, thus granting a religious exemption from the (unwritten) Texas policy at issue. The next day, in a shadow docket order in  Austin v. U.S. Navy Seals 1–26 , the Court rejected the religious objections of a group of Navy Seals to mandatory COVID-19 vaccination. Ramirez applied the Religious Land Use and Institutionalized Persons Act (RLUIPA); Navy Seals  applied the Religious Freedom Restoration Act (RFRA); because the substantive test of the two "sister statutes" is identical, the juxtaposition raises a question. As Justice Alito--who joined the eight-justice majority in Ramirez --suggested in a dissent in Navy Seals , it looked like the Court was granting ...

  by Sherry F. Colb [Note to readers: The following is the text of a lecture I delivered last week as part of an online conference. At this link , you can view the lecture--which is pretty much a verbatim statement of what appears below followed by Q&A] ---------- To fully understand what happens when misogynists call women “bitches,” “cows,” and “pigs,” we need to begin with what has been the cardinal sin in science for many years: anthropomorphizing. To anthropomorphize in the prohibited way means to attribute supposedly uniquely human attributes to nonhuman animals. People writing for science journals were not supposed to say that an animal they had tortured “suffered” or that an animal reunited with a family member experienced “joy” or “pleasure.” Scientists could say that animals experienced “pain” because experiments often aimed at causing and then relieving pain, but “suffering” referred to a supposedly higher level experience special to humans. In some circles, it is ev...

By Eric Segall Despite last week's confirmation of Judge Ketanji Brown Jackson to replace Justice Breyer on the Supreme Court, a moment worthy of celebration, there is still an ominous despair on the political left about what the six-three conservative majority on the Court will bring our way over the next few (or many) years. This dread is justified. The Court is on the road to decimating women's reproductive freedoms, enlarging gun rights, ending affirmative action, and cutting back the administrative state to assist big business and multi-national corporations.  These likely results, in addition to Senator Mitch McConnell's norm-breaking manipulation of the confirmation process, led to President Biden's Supreme Court Reform Commission and have sparked hundreds of essays, blog posts, and articles lamenting the current Court and advocating numerous fixes, including packing the Court, stripping the Court of jurisdiction, and maybe even disobeying the Court. I am sympath...

  by Michael C. Dorf The confirmation of Judge/Justice-in-waiting Ketanji Brown Jackson to the Supreme Court is good news for the Court and the country. It also means that we don't have to face a question that has been never fully resolved: If the Senate deadlocks on a Supreme Court appointment, can the Vice President cast a tie-breaking vote in favor of confirmation? Spoiler alert: Below I'll conclude that the answer to that question is probably yes, but along the way I'll explain why there really is no fully determinate answer. I'll then locate that fact in a somewhat broader context concerning the Constitution's ambiguities.

by Neil H. Buchanan   What are the major media organizations thinking?  It is hardly news that the "corporate media" (as people on the left refer to them) have always taken a soft stance on the issues that truly matter to the moneyed classes.  The major papers and networks have hidden behind false equivalence and bothsidesism since long before those two terms had even become part of the popular lexicon, but the big players are most notable for not rocking the boat.   It is barely necessary for Republicans to "work the refs," given how eager the mainstream media are to be played.  Early in Donald Trump's White House occupancy, a top editor at The New York Times announced with great solemnity that his newspaper was not part of The Resistance, saying that doing so would be "an untenable, non-journalistic, immoral position for The New York Times."  Immoral.   In some recent columns (most recently here , with internal links to earlier pieces), I have bee...

by Sherry F. Colb If I were to try to identify all of the offensive, outlandish, and horrifying things that happened during the confirmation hearings for Judge Ketanji Brown Jackson, I would be writing for several hours. I could focus on the overt racism of assuming that Judge Jackson, according to Senator Blackburn, thinks that judges must rely on critical race theory (CRT) in making judicial decisions. Why would anyone imagine that Judge Jackson believes such a thing? The answer is a mix of out-of-context quotations and the fact that she is Black, and some of the senators were ready to presume that all Black people who aren't attempting a coup must be disciples of Ibram X. Kendi. Likely for the same benighted reason, Senator Cruz asked Judge Jackson whether she believed in racist babies. It turns out that Kendi, a fellow Black person, wrote a book called "Antiracist Baby," so Judge Jackson must believe in racist babies. No one admitted, of course, that they were acting ...

by Neil H. Buchanan     The Biden White House included in its new budget proposal, at last, a proposal to eliminate a tax giveaway to the wealthiest Americans that has infected our system almost since its inception a century ago.  Although that proposal is long overdue, it is also politically doomed, for two reasons.   In my Dorf on Law column last Thursday , I quoted Seth Meyers's sarcastic-but-accurate observation that this progressive tax proposal is "the part [of Biden's proposal that] they'll have to cut out before it'll pass."  Back in December, the ever-frustrating Senator Joe Manchin surprised everyone by indicating that he could support this kind of tax increase on the rich, but he continues to play the part of Lucy pulling away the football from the Democrats' Charlie Brown by now opposing the proposal -- but insisting, just to make Orwell's ghost scream, that "everybody has to pay their fair share" by making "other" ch...

 By Eric Segall During her confirmation hearing, Judge Kentaji Brown Jackson seemed to self-identify as an originalist. She said the following: “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.” These comments, of course, were met with delight across the vast Federalist Society landscape and with despair among non-originalists of all stripes. The two best examples are a pair of essays by, on one hand, Professor  John McGinnis , and on the other, Conor Casey and  Adrian Vermule . Make no mistake, Casey and Vermule have the better of the argument by far.

by Michael C. Dorf Barely two weeks ago, the Senate unanimously passed a bill--the Sunshine Protection Act --that would make Daylight Saving Time permanent. Unanimously, that is, among the Senators who knew this was happening . Will the House follow suit? If so, will President Biden sign the bill? Time will tell, but the editors of the Arizona Law Review are not waiting to find out. They just went live with an online symposium somewhat pretentiously titled "The Unlawfulness of Federal Daylight Savings [sic] Time." Because Arizona is one of only two states (the other being Hawai'i) that don't currently use Daylight Saving Time, the forum is appropriate. Even better, two of the articles are surprisingly interesting. Here I'll say a few words about each.