Dorf on Law

by Michael C. Dorf The approach of debt ceiling doomsday has provided Professor Buchanan and me with further opportunities to elaborate on our "least unconstitutional option" approach. We are making some new points, but much of what we have to say now simply aims to clarify or popularize our prior academic writing--as in my recent op-ed in The Boston Globe . Today's essay will do a little of both: (1)  clarify a prior point; and (2) offer a set of new observations. In addition to our own new writings, we find that journalists have also taken an interest in our work. Sometimes they do so without contacting us, as Jamelle Bouie did, citing us in this excellent January 20 essay in the NY Times . Other journalists may cite our prior work but also wish to talk to one of us, as reporter Jeff Stein did for this Washington Post  article over the past weekend. I was very grateful to Mr. Stein for giving me the opportunity, after we talked, to review and edit the quotations he att...

by Michael C. Dorf Along with millions of other Americans, I was horrified and sickened by the police murder of Tyre Nichols. I am also somewhat in awe of his mother and family for how they have handled this devastating loss--promoting the public good even while experiencing unimaginable grief. I don't claim to have any special insight, but I also don't think it would be appropriate to say nothing about this incident. Accordingly, I offer three observations regarding: (1) traffic stops; (2) excessive force; and (3) race.

by Neil H. Buchanan The public discussion of the debt ceiling crisis is reverting to a slow burn, now that everyone (and I do mean apparently everyone ) has offered their hot take on last week's report that the US has again hit the formal debt ceiling.  That was both big news and a non-event, the former because of course it is a very big deal that Republicans have made it clear that they truly are willing to shoot the hostages this time, the latter because the real drop-dead date is not when we hit the ceiling but when Treasury exhausts the (misleadingly named and revealingly absurd ) "extraordinary measures" that a long-ago Congress made available for these situations. With the heat temporarily turned down, it seems worth taking a moment to address an issue that I mentioned briefly in a column last week : What is wrong with the possibility of "prioritization"?  Specifically, if President Biden soon finds himself on the drop-dead date without a deal to increase...

  by Michael C. Dorf Just before the new year and almost two years after the passage of the law permitting the sale of recreational marijuana in New York State ,  the first dispensary in the state opened for business  in lower Manhattan. I expect that eventually cannabis dispensaries will become fairly common in New York State, but so far the rollout has been quite slow. Meanwhile, the combination of decriminalization of possession and the dearth of legal dispensaries has led to what I imagine is at least a temporary flourishing of the illegal marijuana distribution business: increased demand from New Yorkers who might have been deterred from purchasing marijuana by the old enforcement regime will have been met by marijuana dealers operating outside the law. In the long run, however, one would expect that the illegal market will shrink once the legal market expands. How much it shrinks depends on a number of factors. Municipalities may opt out of permitting dispensar...

 By Eric Segall My Father Maurice Segall died a little over a week ago in the middle of the night in his sleep at the age of 93. Tragically, that was the only peace my father found over the last few months of his life.  His death has been very difficult for all of his family but I wanted to write this blog post because of what I saw towards the end of his life. 

by Neil H. Buchanan One of the many, many problems with the current discussion surrounding the Republicans' renewed threats to take us all hostage via the debt ceiling is that it invites everyone to spout off about anything that comes to their minds about debt, deficits, and spending.  These things have virtually (and to be clear, I mean as close as possible to literally ) nothing to do with each other. As I discussed in a column last week, people conflate government shutdowns with a possible debt default, which is also deeply problematic.  What makes the "I'm just gonna say whatever comes into my head about government and money" response especially annoying, however, is that it opens up an unfiltered fire hose of statements based on confused thinking, uninformed priors, and an inability to separate the past from the present.  Please allow me to illustrate.

by Michael C. Dorf Much of the public discussion of the inconclusive Marshal's Report of the investigation into last year's leak of the draft opinion in Dobbs  has focused on a question that raises doubts about its thoroughness and fairness: why were the Justices not subject to the same requirements--such as signing affidavits--as law clerks and other Court personnel? Marshal Gail A. Curley, who headed the investigation, stated in response to this question that she "spoke with each of the Justices, several on multiple occasions" and "followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits." Maybe that's all there is to it, but given the status of the Marshal relative to the Justices versus her status relative to other Court personnel, it's also possible that she was predisposed not to push too hard to find leads tha...

by Neil H. Buchanan Yesterday, in what I admitted was a rather grumpy column , I waded back into the muck of the debt-ceiling debate.  I made it clear up front that there is nothing important about technically reaching the statutory debt limit this week, because the impending catastrophe will happen only if the Treasury Department exhausts its so-called "extraordinary measures," most likely in late Spring or early Summer.  Even so, it matters how the debate is framed over the coming months, and readers can be assured that both Professor Dorf and I will not be able to avoid writing again and again about the debt ceiling. Today, however, I want to turn to one of the most basic, old-fashioned seitan-and-potatoes political issues out there: taxes.  If the Republicans who are threatening to blow up the global economy by refusing to adjust the debt ceiling were truly interested in "fiscal sanity" of any kind, they would be talking sensibly about taxes and spending.  Inst...

by Neil H. Buchanan References to "Groundhog Day" cannot possibly do justice to the absurdity of the ever-returning debt ceiling madness, but I have not come up with anything better.  Maybe "the 'Groundhog Day' of 'Groundhog Day'"?  No, probably not.  In any event, having recently recovered from another bout of Covid-19, I have had more than enough of repetitive traumas.  But here we are, beginning yet another iteration of debt ceiling inanity. There has been a flurry of public discussion about the debt ceiling in the last couple of weeks, for two related reasons.  First, what we can now accurately call the "hostage-takers' caucus" -- also known as virtually the entire Republican Party -- announced loudly and clearly that they are planning to use their new House majority to threaten to force a US government default unless their demands are met.  It does not matter how slim their majority is, or how often pundits and journalists pretend ...

by Michael C. Dorf [N.B.  The following essay also appears on Balkinization as part of that blog's 20th Anniversary Symposium on the Present State of Constitutional Theory. I'm grateful to Jack Balkin for inviting me to participate and for permitting me to cross-post here.] * * * Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed ...

  by Michael C. Dorf (***Updated with link to column) My latest  Verdict column  discusses  the saga of Erika Lopez Prater --the art history adjunct professor who lost her position at Hamline University as a result of the administration's craven capitulation to a Muslim student's complaint that Professor Lopez Prater's respectful display of a historically significant painting of the prophet Muhammad was Islamophobic. My column focuses on Hamline President  Fayneese Miller's disingenuous claim that Lopez Prater wasn't "fired;" she was simply not renewed. As I explain in the column, this sort of claim (which administrators at other universities also make) only works because of the shabby treatment of the adjunct faculty who comprise a majority of instructors in American higher education. Here I want to discuss one aspect of the merits of the complaint against Professor Lopez Prater. Part of what made the student's complaint unreasonable--and the univers...

  by Michael C. Dorf [In honor of Dr. King, today's short rerun comes from 2010 ( originally posted here ). I think it holds up pretty well, except in one detail. I had worried that celebration of Dr. King's legacy could lead to the false belief that racism in America was a thing of the past. No one paying attention could think that today--although, of course, a whole lot of people do believe it.] --------------------- The Uses of Official Holidays Back in the 1980s, it was still politically acceptable for some prominent Republicans to oppose an official holiday recognizing Dr. Martin Luther King, Jr.  Prominent examples included Jesse Helms (well, duh), Ronald Reagan, and John McCain.  Reagan eventually capitulated and McCain changed his mind in that mavericky way of his.  Even at the time, it wasn't clear what angle there was for a politician in opposing the holiday, except for someone like Helms, whose appeal was unabashedly racist (in a way that Reagan's and McCa...

 By Eric Segall Over at the originalism blog , which has been more than generous to my work over the years, Professor Michael Rappaport used the new  ChatGPT to write a poem on constitutional originalism. Here it is: The Constitution, a guiding light, Originalism, a principle bright.

  by Michael C. Dorf For three years I managed to avoid getting COVID, but my luck ran out last week. Well, not really. My luck didn't change. My precautions did. Until August, when Sherry died , I was extremely careful, not wanting to expose her (with immunity weakened by chemotherapy drugs) to the virus. But since then, like a lot of people in the last year, I let my guard down. Maskless, I taught a class of 73 nearly-all-maskless students three days each week. I resumed eating in indoor restaurants. I went to a couple of Cornell hockey games and even to a sold-out Madison Square Garden to see the Knicks. So it was inevitable that I would be exposed. My first day my symptoms were similar to a mild cold. In fact that's what I thought I had for that first day, as my rapid test came back negative. However, on the morning of day 2 I took another rapid test, which came back positive. My daughter, whose symptoms preceded mine by a couple of days and who had also tested negative at ...

 By Eric Segall Professors Will Baude and Steve Sachs are at it again. In their Arthurian quest to convince the world that originalism is our law (it isn't), they had to jump into the fray to try and take on Professor Adrian's Vermeule's devastating critiques of originalism in his book "Common Good Constitutionalism." Their review in the Harvard Law Review takes on numerous aspects of the book but their main focus is on originalism. The last line of their review is the following: "[W]hile we can’t root for the book’s success as a manifesto, movement, or call to arms, we wish it were better as a book." I wish Baude and Sachs were either better originalists or not originalists at all. One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, th...

  by Michael C. Dorf On Monday, the Supreme Court heard oral argument in In Re Grand Jury . The case presents a not-especially-ideologically-loaded question: when a lawyer participates in a conversation with a client, how much of the conversation must be law-related for the attorney-client privilege to shield it? Lawyer Daniel Levin, arguing for the petitioner, urged a rule under which a conversation or document is protected if obtaining legal advice is a "significant purpose" of the conversation or document. The rule in most U.S. states is that for the privilege to apply the "primary" purpose of the conversation or document must be legal advice. The U.S. argued that should also be the rule in federal court with respect to contested federal questions. Federal Rule of Evidence 501 directs federal courts to look to fashion a common law of privilege "in the light of reason and experience." That directive leaves SCOTUS free to choose a different rule from the...

by Neil H. Buchanan After the New Year's weekend of college bowl games, I was planning to write a column here on Dorf on Law exploring the increasingly callous attitude that our society is showing toward the health and futures of the very young men who play those games. Before I could do so (and before I ended up having to take last week off for unrelated reasons), however, the dangers of playing American football suddenly became Topic A not just on sports shows but more generally across the country.  Last Monday, early in one of the most widely watched games of the NFL season, Damar Hamlin of the Buffalo Bills pro football team went into cardiac arrest and nearly died. Several silver linings quickly emerged out of this scary situation, but the bigger picture is still quite depressing.

By Eric Segall I started teaching constitutional law in 1991 just a little over thirty years ago and also the same year that Justice Clarence Thomas became a Supreme Court Justice. We both have life tenure, which is wrong, but at least I have no power and little influence, whereas tragically, Justice Thomas has lots of both.  Although the Constitution has not been amended since 1991, with the exception of the never-litigated 27th Amendment, constitutional law has changed dramatically since my first year of teaching and Thomas's first year on the Court. Below is a partial list of these major changes that demonstrates, when it comes to the Supreme Court, we are governed by the rule of people, not the rule of law. Keep in mind the list does not even include any cases dealing with criminal law or criminal procedure, where there have been many major changes as well.

  by Michael C. Dorf Thus far, Democrats have treated the Republicans' inability to elect a Speaker of the House as a spectacle to mock and (judging by my email inbox) a fundraising opportunity. Perhaps the time has come to get off the sidelines and offer a deal.  What kind of deal? Democrats should agree to provide Kevin McCarthy (or another Republican) enough votes to secure the Speakership in exchange for abandonment of the Hastert Rule--under which no matter makes it to the House floor without support of a majority of the majority party. With the House arrayed as it is, the Hastert rule allows just over a quarter of the body--likely consisting of the most right-wing members--to block legislation that has support of the vast majority of the House. Eliminating the Hastert Rule would not undercut the Republicans' ability to stymie action if they are united, but it will make it much easier for must-pass legislation (like raising the debt ceiling) to pass. Would such a deal be ...

  by Michael C. Dorf Here's what the Constitution (Art. I, Sec. 2) says about the election of a Speaker of the House: "The House of Representatives shall choose their speaker and other officers . . . ." That's it. Notice that the provision does not say how the House shall choose its Speaker, but the conventional wisdom--with which I agree--is that it requires a majority vote. That's because wherever the Constitution sets a different threshold, it does so expressly. That said, if the House were to decide, say, that the winner of a plurality will be Speaker, that decision would almost certainly not be subject to judicial review (i.e., it would be a non-justiciable political question). However, the decision to choose by plurality (or some other mechanism other than majority-vote of the full chamber) would itself need to be taken by a majority of the House. Thus, so long as a blocking minority of House members opposes any particular choice for Speaker, the House will ...

  by Michael C. Dorf In Bostock v. Clayton County , the Supreme Court held that the prohibition on sex-based discrimination in employment found in Title VII of the 1964 Civil Rights Act encompasses a prohibition based on sexual orientation discrimination as well as on gender identity discrimination. Relying chiefly on the text of Title VII,  Bostock 's holding pretty clearly should also apply to Title IX   (of the Education Amendment Acts of 1972), which forbids sex discrimination in and by federally funded educational institutions. The relevant language of Title IX does not materially differ from the language of Title VII. However, Bostock left unresolved important questions that are now working their way through the lower courts. One such question is whether and how Bostock applies to the federal constitutional requirement of equal protection (rooted in the Equal Protection Clause of the Fourteenth Amendment with respect to state and local government actors, while roote...

  by Michael C. Dorf My latest Verdict column addresses three main legal issues arising out of the lies of George Santos: (1) what it would take for the House of Representatives to judge him unqualified or expel him (neither of which will happen because he's a Republican); (2) what legal jeopardy he may face for violations of campaign finance laws and possibly other laws; and (3) whether prosecuting him or a future candidate specifically for lying to voters would be consistent with the First Amendment, given that the Supreme Court has held that lies are not categorically unprotected speech. I conclude the column with a thought about where Santos fits in the contemporary GOP. Here I want to consider the closest that Santos has come to justifying his lying: “I’m not going to make excuses for this," said Santos in an effort to make an excuse for his lying, "but a lot of people overstate in their resumes, or twist a little bit. … I’m not saying I’m not guilty of that."...