Dorf on Law

by Michael C. Dorf My dear friend and colleague Steve Shiffrin has passed away. Steve was a towering figure in First Amendment law, but he was so much more than that. He was a profoundly moral but never moralistic person. I apologize for what will be a somewhat disjointed and rambling remembrance. Steve contained multitudes. Steve was a values pluralist and a rules skeptic. He did not think that the First Amendment could be reduced to a single value or encapsulated in formal rules. Nonetheless, his signature scholarly achievement--the bumper sticker or elevator pitch version of his oeuvre--can be summed up in a single word: dissent . Steve's books and articles made a powerful argument that the most important (though not the only) purpose of free speech and freedom of the press in a democratic society is to shield dissenters. Like Brandeis said (in his Whitney concurrence) about the framers' supposed view of liberty, Steve "valued [dissent] both as an end and as a means.&q

 By Eric Segall Tomorrow I turn 65 years old. Having just returned from a meeting about, gasp, Medicare, I have been reflecting on what my future holds. I got nothing. But I do have 65 reasons why SCOTUS is terrible. Here they are in no particular order other than the first one. 

by Neil H. Buchanan After the chaos of the last month or so, the world now finds itself in an unexpected limbo, waiting to see whether the deal that President Biden worked out with Kevin McCarthy late last week will be passed by both houses of Congress and signed into law.  This must happen on time (apparently by next Monday), or we will be back to facing two damaging alternatives : the US government will default on its obligations for the first time in history, or the White House will refuse to allow such a default and instead will issue new federal debt in excess of the debt ceiling. And to be clear, even though Professor Dorf and I have repeatedly emphasized that the damage from defaulting is much, much worse than the damage from being forced to violate the debt ceiling statute, both paths would create constitutional and economic crises.  If the current deal does goes through, Professor Dorf and I (together, separately, or more likely both) will offer a few postmortems in due cou

  by Neil H. Buchanan and Michael C. Dorf Since we began writing about the debt ceiling back in 2011, we have occasionally been met with an objection to our contention that borrowing in excess of the debt ceiling is less unconstitutional than failing to spend appropriated funds. Precedents like Train v. City of New York and Clinton v. City of New York , the objection goes, indicate that--absent a valid congressional delegation to the President of the power to spend less than some fixed amount--the President must spend all of an appropriation, but  that such obligation is contingent on there being money in the government's bank account to spend. If authorized borrowing plus tax revenues amount to some number less than the expenditures Congress has required, the objection continues, then the President is not under an obligation to spend the full amount. Thus, according to this line of pushback, there is no trilemma when the debt ceiling becomes binding: the President simply spends a

  by Neil H. Buchanan and Michael C. Dorf Conor Clarke, who will shortly begin his appointment as a faculty member at the Washington University School of Law (and whom we shall accordingly, albeit slightly prematurely, refer to as Professor Clarke) recently posted on SSRN a fascinating draft article titled The Debt Limit . In it, he traces the history of the current debt ceiling statute to origins that long pre-date what is often said to be the first debt ceiling statute in 1917. As he explains, the original purpose of the debt ceiling statute currently codified at  31 U.S.C. § 3101  had nothing to do with fiscal restraint, as Republicans now claim for the current version. Rather, in prior years Congress had not enacted a general authorization for the Treasury to borrow money, instead passing borrowing authorizations to accompany specific appropriations bills. The debt ceiling statute, Prof Clarke says, was part of a legislative package that obviated the need for new borrowing authorit

By Eric Segall Professor Ronald Krotoszynski, Jr., recently published an important and provocative article  titled, "On the Importance of Being Earnest: Contrasting the Dangers of Makeweights with the Virtues of Judicial Candor in Constitutional Adjudication." The first sentence of the article is compelling: "For better or for worse--and mostly for worse--the Supreme Court does not always play it straight with We the People."  Krotosznski argues, citing Ronald Dworkin and others (disclaimer, including me), that the "legitimacy" of a court's decision depends on the quality of the reasons the judges provide as the basis for the holding. This much-needed transparency furthers the rule of law and allows the people to judge the court's work. Krotosznski contrasts sincere reasons with "constitutional makeweights," which obscure and hide the judges' true rationales for their decisions. He argues that all courts "should abstain from the

  by Michael C. Dorf In just over a week, the government will have insufficient funds to pay all of its bills. President Biden and Speaker McCarthy still haven't gotten to yes on a deal that includes raising the debt ceiling. Even if they reach one as early as later today, there is no guarantee that it will get through Congress. Under the Hastert rule, a majority of Republicans will need to support the deal in order for McCarthy to bring it to the floor, so even substantial support from House Democrats would not ensure passage. And there might not be time for a discharge petition to succeed, even assuming enough support could be found for that avenue. Thus, the path to passage would be narrow , to say the least. What happens if the debt ceiling isn't raised? Whenever a version of that question is asked, two families of answers are given: (1) the government "prioritizes" certain payments, especially those due to bondholders, while delaying or only partially paying or n

by Neil H. Buchanan The debt ceiling mess is looking more and more likely to cause an epic catastrophe, which means that only adults should be in the room trying to fix the problem.  More generally, it also means that the media and political leaders should be seeking out and listening to people who know what they are talking about.  Instead, we have now reached the point where anyone with a laptop or a camera thinks they should share their half-baked idea about an issue that is not -- or at least should not be -- a subject for hot-takes and gut feelings.  As things become more dire, then, the public discussion has if anything become even less helpful.  As a result, the likely upcoming course of events could be disastrous. One particularly worrying aspect of this bad turn is that President Biden's advisors and other people with his ear appear to be appealing to his inherently cautious nature, telling him to do the safe thing rather than follow the advice of people like

  by Michael C. Dorf My Verdict column on Friday praised Justice Gorsuch for the sensitivity towards animal welfare that he demonstrated in his lead opinion in National Pork Producers Council v. Ross . Because the universe has a sense of humor, naturally, just a few hours after that column posted, Justice Gorsuch showed that, while he occasionally provides pleasant surprises, more often the surprises, not to mention the predictable decisions are, shall we say, not so pleasant.  In Arizona v. Mayorkas , the Supreme Court vacated the DC Circuit’s decision denying various red states' motion to intervene and ordered that court to dismiss the case--which involves the so-called Title 42 policy at the border--as moot. Justice Jackson briefly noted that she wouldn’t have vacated the lower court ruling but didn’t disagree with the conclusion that there’s nothing left to decide, in light of the ending of the COVID emergency and the Title 42 policy. Justice Gorsuch added a “statement.” Its

by Michael C. Dorf My latest solo  Verdict column (by contrast with the various debt-ceiling columns I've been co-authoring with Prof Buchanan) offers an animal-welfare-centric view of last week's SCOTUS decision in National Pork Producers Council (NPPC) v. Ross . The pork industry plaintiffs challenged a provision implementing the part of California's Proposition 12 that mandates minimum welfare standards for the (mothers of and the) pigs slaughtered for pork products sold in state. Nearly all of the pork sold in California is produced out of state, so the plaintiffs argued that Prop 12 is extraterritorial legislation in violation of the dormant Commerce Clause (DCC). After explaining why the case is unlikely to have far-reaching consequences for state abortion regulations, my column focuses on the pleasantly surprising fact that the Court treats animal welfare as a very serious concern of the law. To be sure, I'm realistic. I don't fool myself that Prop 12 will l

by Neil H. Buchanan The debt ceiling crisis is no laughing matter.  Even so, there have been some truly funny moments along the way.  Some of the best were when I read a New York Times op-ed by a law professor named Michael McConnell this past Sunday, in which he repeated almost verbatim some weak arguments that he had made in 2012.  His claims, at most, could most likely defeat a strawman version of the now-familiar Fourteenth Amendment argument -- the non-strawman version of which is sufficient but not necessary (and definitely not the strongest available ) to allow President Biden to end Republicans' hostage-taking via the debt ceiling. Before I even knew that the essay had been published, I received multiple emails from readers telling me how weak McConnell's arguments were and encouraging me not to hold back in writing a reply.  I have now obliged, publishing " Justifying Republican Hostage-Taking as Merely Normal Negotiating is Sophistry at Its Worst ," today

by Michael C. Dorf Prof. Buchanan and I have long argued that presidential borrowing in violation of the debt ceiling should Congress fail to raise it would be the "least unconstitutional option" (LUO). We illustrate with some homey examples in our new op-ed in the Los Angeles Times . The LA Times essay also indirectly responds to Prof. Michael McConnell's high-profile non sequitur in the NY Times , in which he argued that the president has no independent authority to borrow money on the credit of the United States because that power belongs to Congress. Well, duh. The question, though, is what happens when the president's only options all involve usurpation of a power of Congress. (There are other problems with Prof. McConnell's view as well, as I explained in a Twitter thread over the weekend.) Assuming that none of the proposed workarounds we discussed in our Verdict column on Monday actually works, and that therefore a genuine trilemma arises, our LA Times

 By Eric Segall Professor Mark Lemley recently wrote the following striking paragraph in the Harvard Law Review in an article titled the "Imperial Supreme Court." The past few years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative Justices on the Court have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often cont

by Neil H. Buchanan and Michael C. Dorf In our latest Verdict column on . . . wait for it . . . wait for it . . . the debt ceiling (duh!), we offer the Biden administration a novel approach. Although we remain very dubious about the legality of platinum coins, exotic bonds, and other allegedly magical means to avoid a trilemma when the debt ceiling hits, we accept the point that one of these gimmicks might appeal to a court asked to invalidate whatever the administration might do to mitigate the damage of a debt ceiling impasse without unconstitutionally usurping legislative power by refusing to pay the nation’s bills. In a previous essay here on the blog , we explained that we don’t just think that the platinum coin gimmick fails as a matter of statutory interpretation; we worry that if the administration were to attempt it, that would crowd out the better course of simply issuing debt-ceiling-violating bonds as the “least unconstitutional option” (LUO). As we wrote: “the administrat

by Neil H. Buchanan Almost exactly a year ago, I wrote a column here on Dorf on Law that I described as a "mental health break."  Even though that column ended up veering into tragic territory that was anything but a break from the news (the mass murder dominating the headlines at that time being the one in Uvalde, which has been followed by literally hundreds more since then), the main focus of that column was the utterly banal topic of homeowners insurance.  Click-bait extraordinaire. In any event, I explained that I needed a mental health break because of "the ongoing wave of unrelentingly horrifying news on all fronts."  That has certainly not improved in the year since, and this year has the added un-fun of the debt ceiling crisis to keep me biting my fingernails and dealing with uninformed reporters .  Therefore, when my new homeowner's insurance bill arrived in the mail, I was almost grateful that it contained a surprise that justifies a followup to la

by Neil H. Buchanan The dangerous insanity of the Republicans' hostage-taking via the debt ceiling continues apace.  Even though very little has changed about the basic contours of the situation, I continue to be surprised by how much there is to write about this endless nightmare. Here, I will discuss a recent example of what I would describe as bad but (probably) innocent media coverage of the debt ceiling story, specifically a news article that appeared yesterday in TIME .  I am focusing on that article because I was one of the legal scholars quoted in it, based on a nineteen-minute interview with the reporter via telephone on Monday afternoon.  I thus have some knowledge of the process that led to the published piece. Even though there is no apparent ill intent on the part of the reporter, the article is simply not good.  Not exactly terrible, and not openly pushing a bad agenda (or not exactly doing that), but just ... certainly a long way from good.  Occasionally, it is use

  by Michael C. Dorf On Friday September 29, 2023, the Rutgers Law School and the Cornell Law Review will co-host a one-day symposium commemorating and exploring the scholarship of Sherry Colb. The symposium will take place at the Rutgers-Newark Law School. The day's events will feature papers and discussion by three panels of distinguished faculty from Rutgers, Cornell, and around the country, focusing on and inspired by Sherry's work in: criminal procedure; feminist jurisprudence; and animal rights. The papers will ultimately be published in the Cornell Law Review. Sherry was a beloved member of the Rutgers law faculty from 1993 to 2008 (for the first two years at Camden and then at Newark) and the Cornell law faculty from 2008 until her death in 2022 (interrupted by stints as a visiting professor at the University of Pennsylvania and Columbia law schools).  In the coming weeks and months, the other organizers of the symposium and I will launch a website and provide additiona

by Michael C. Dorf At his impromptu press conference after meeting with congressional leaders yesterday, President Biden said that he's "thinking about" Section 4 of the 14th Amendment as a Plan B in the event that no legislation raises or suspends the debt ceiling in the next few weeks, adding that he had come to that view because of the view recently expressed by Prof Laurence Tribe, who has long advised him on constitutional matters. However, Biden also said that the "the problem" with a unilateral presidential decision "is it would have to be litigated." I count Biden's statement as substantial progress. I confess that at least a small part of my satisfaction is ego-driven. It's good to see Biden coming around to more or less the position that Prof Buchanan and I have long advocated: make utmost efforts to get legislation but if that fails, unilaterally issue debt in violation of the debt ceiling. It's also nice to see that our work se

  by Michael C. Dorf The holy texts of the Abrahamic religions condemn the charging of interest on loans, but it is impossible to run even a modestly sophisticated economy without debt-finance. Accordingly, people who accept the authority of their holy books but also hope to enjoy the fruits of a functioning economy find workarounds. In medieval Europe, Christian rulers permitted Jews but not Christians to lend money at interest (even as they forbade Jews from earning a living in many other ways). This arrangement was permissible for Jews, for whom the prohibition on interest runs only between transactions in which both lender and borrower are Jewish. For loans between (very observant) Jews, the rabbis circumvent the interest prohibition through a form of partnership that reproduces some of the features of lending. To this day, banks in Israel offer use of this formality to customers who want it. In majority-Muslim countries that officially follow Shari'ah, very clever lawyers and

  by Michael C. Dorf [N.B.: Below is an essay inspired by the coronation of King Charles III. Meanwhile, my latest  Verdict  column addresses the unrelated subject of . . . wait for it . . . wait for it . . . no surprise here: the debt ceiling. In particular, I offer a speculative (and partly tongue-in-cheek) account of how President Biden's meeting with Speaker McCarthy and Minority Leader McConnell might go tomorrow. Speaking of the debt ceiling, in yesterday's  New York Times , Prof Laurence Tribe wrote an op-ed explaining how he came to abandon his prior view and adopt what is essentially the Buchanan/Dorf view that absent new legislation raising or suspending the debt ceiling, Biden should issue new bonds anyway as the least unconstitutional option. His essay links our first Columbia Law Review article on the topic, which he describes as "the most insightful literature" on the subject. Okay, now onto the coronation.] The American history I learned in elementar

  by Michael C. Dorf On Monday, the Supreme Court granted certiorari in Loper Bright Enterprises (LBE) v. Raimondo  in an order that limited the grant to question 2 of the petition , which asks: "Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency?" For those of my readers who did not attend law school in the last 40 years, didn't take administrative law when they did, or took administrative law but forgot the one thing that everyone else remembers from that class, Chevron  refers to the 1984 case of Chevron U.S.A., Inc. v. NRDC . It has long been cited for the proposition that, when Congress delegates power to an agency in unclear statutory language, a court reviewing administrative action will defer to a reasonable agency interpretation of the statute even if the court believes that

 By Eric Segall Twenty years ago, Justice Sandra Day O'Connor wrote the following in Grutter v. Bollinger : Law schools, represent the training ground for a large number of our Nation’s leaders.  Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Justice O'Connor told us what we already knew: law schools and especially elite law schools, are the "training ground" for many of our nation's political leaders and judges. Justice O'Connor made this observation in the context of her opinion upholding the use of race in admissions by the Uni

by Neil H. Buchanan Now that the Treasury Department has jolted the debt ceiling back into the news by announcing that the drop-dead date is much earlier than expected (June 1 instead of late Summer or early Fall), every uninformed reporter, politician, and pundit once again has an opinion about something that they in fact know little or nothing about. Over the decade-plus that this recurring nightmare has haunted us, one of the most frustrating aspects of news coverage has been an almost willful misunderstanding of the Buchanan-Dorf "least unconstitutional" trilemma analysis -- which, to repeat once again, is based on the observation that there are NO legal avenues available for a President to pursue once the debt ceiling becomes binding, including so-called prioritization of whose obligations will be paid.  Because of that obtuseness, our argument is treated as merely one item on a laundry list of "work-arounds" that might allow a President to frustrate Congress

by Neil H. Buchanan and Michael C. Dorf In  our April 17, 2023  Verdict  column  ( The So-Called Platinum Coin Option is Illegal, Even on Its Own Terms),  we discussed a widely promoted gimmick that its proponents claim would enable the government to continue to pay all of its bills even if Congress fails to raise, suspend, or repeal the debt ceiling before the Treasury's "extraordinary measures" run out in the next few months. The gimmick exploits a  supposed federal statutory loophole  that would enable the executive branch to mint a platinum coin worth as large a sum as needed (potentially trillions of dollars), deposit it with the Federal Reserve, and use the credit to its account to pay bills with real money. Although we sympathize with the goal of circumventing efforts to tank the global economy, as we explained in the column, the gimmick fails because there is no such statutory loophole. Our April 17 column recapped arguments we first made over a decade ago and hig

  by Michael C. Dorf Last week the Wall Street Journal published a story  based on an interview with Justice Samuel Alito. The WSJ requires a subscription but for readers who lack one, I can briefly quote the key portions on which I want to focus. Regarding last year's leak of Justice Alito's majority opinion in the  Dobbs case, he says: “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody . . . .” The reporter then states that Alito is "certain about the motive," which was, in the Justice's words,  “part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.” He goes on: “Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” in an apparent refere