Dorf on Law

For those people who are understandably freaking out about the ongoing chaos regarding the apparently inevitable government shutdown, the strange reemergence of the debt ceiling as a political weapon, Trumpian saber-rattling about prosecuting and harassing Liz Cheney and others, and of course the unexpected front-and-center position that Elon Musk has seized in US politics, I have one thing to say: This is the best reality that we could be living in right now. Why?  There is perhaps nothing new to say here, but it bears repeating again and again that if Donald Trump had not become " Mr. 49.8 " and won the presidency via the weird election system that the United States uses -- a system that we must always remember is "legal but corrupted" in ways large and small -- the country would be on an entirely different level of chaos right now. Earlier this week, the electors in each state cast their votes without incident, and those votes will be officially counted and cert...

On Tuesday, Professor Buchanan wrote on this blog that he and I had "found one silver lining in the current political cataclysm, and that is that we will almost surely never again have reason to write about the debt ceiling . . . ." Although I agreed (as I usually do) with nearly everything else he wrote there, I'm going to prove him wrong on this one, because the debt ceiling is back in the news. Yesterday, the following "statement from President Donald J. Trump and Vice President-Elect JD Vance" was posted on Vance's  X account: The most foolish and inept thing ever done by Congressional Republicans was allowing our country to hit the debt ceiling in 2025. It was a mistake and is now something that must be addressed.   . . . Increasing the debt ceiling is not great but we’d rather do it on Biden’s watch. If Democrats won’t cooperate on the debt ceiling now, what makes anyone think they would do it in June during our administration? Let’s have this debate ...

After the Senate failed to convict Donald Trump on the charges proffered by the House during his first impeachment, Maine Senator Susan Collins gave an unintentionally hilarious explanation for her vote to acquit: Trump, she said , had learned a "pretty big lesson" from the mere fact of impeachment, so, by implication, it was not necessary to actually hold him accountable. Collins was right, but the lesson Trump learned was the obvious one that conditioning teaches, not the one that Collins, in her naïveté (or perhaps disingenuousness) hypothesized. In the last week, Trump has learned another lesson, this time courtesy of the cowards who run ABC News: If you can win a $15 million settlement for what should have been a losing legal claim against journalists, bring more lawsuits against journalists. The latest is against pollster Ann Selzer, the Des Moines Register, and Gannett, alleging that Selzer's poll showing Kamala Harris ahead of Trump in Iowa on the eve of the elect...

How crazy is the world right now?  At least crazy enough that I managed to write an entire column last Thursday discussing the American right's gleeful approval of vigilante violence but forgot even to mention January 6th!  It is truly difficult to keep track of everything at this point. And this disorientation is not limited to simple information overload.  Many people are engaged in some combination of denial, stubbornness, and wishful thinking as they treat the world as if nothing fundamental has changed.  I saw one pundit gamely say, for example, that a second-term Donald Trump should be treated as a lame duck, which is so obviously detached from political reality -- to say nothing of being utterly oblivious to easy workarounds -- that one wonders how such a person functions on a day-to-day basis. Other pundits offer the hopeful idea that "Presidents almost always lose badly in their first midterms," which requires one to imagine that voter suppression is not g...

Here's one of my favorite jokes, told as a couple of riddles: Q: What's the difference between a plum and an elephant? A: A plum is purple; an elephant isn't. Q: What's the same about a plum and an elephant? A: They're both purple . . . except for the elephant. The recent events in South Korea (which I have previously discussed on Verdict  and here on the blog ) lead me to the following variation: Q: What's the same about South Korea and the United States? A: They're both reasonably well functioning constitutional democracies . . . except for the United States. Judged by the often pessimistic standards of this blog, that punchline might count as optimism. After all, in asserting (by negative implication) that the United States is not a well functioning democracy, I leave open the possibility that our nation is at least a democracy, albeit a poorly functioning one. And indeed, that was my assessment as of 2021, when I described the U.S. as a "defective d...

My latest Verdict column uses the occasion of last week's abortive declaration of martial law in South Korea as an opportunity to revisit an age-old question of constitutional design: Is it wise to include emergency powers in a constitution? As I explain in the column, the U.S. Constitution is somewhat unusual in containing no general provision permitting the suspension of parts or all of it in times of emergency. Its only provision for emergencies is the vesting (by implication) of the power to suspend habeas corpus in Congress. Thus, President Lincoln's effort to suspend habeas on his own authority was rejected by Chief Justice Taney in Ex Parte Merryman . Other countries, including South Korea, split the difference by vesting the power to declare martial law in the president, subject to override by the legislature. The upshot of my column is that even countries like the U.S. that do not vest the executive with any formal emergency powers are susceptible to the abuse of assu...

The story of the man who went to New York last week and murdered a health insurance executive continues to fascinate the country, for reasons horrifying, grimly amusing, morbid, and somehow almost (but not quite) understandable.  In my column earlier this week, I noted that there is a meaningfully similar data point from 2010, when a deranged madman with a grudge about his taxes flew a plane into the IRS building in Austin, Texas, killing a grandfather who worked for the tax service. The most obvious similarity between the two murders was that the decedents worked for two notably unpopular entities: a huge health insurance company in the New York case, and the federal tax collection agency in the Austin case.  In both, there was an immediate response from a lot of people that boiled down to something like this: "I know we're supposed to care, but do we?  Do we really ?  I mean, isn't the supposed victim in fact the enemy?"  The recent dark humor has included va...

On Monday, the Supreme Court denied a petition for certiorari in a case in which the U.S. Court of Appeals for the First Circuit had rejected a challenge to the admissions procedures for Boston's selective public high schools. Justice Alito, joined by Justice Thomas, dissented . By coincidence, just the day before the cert denial and dissent dropped, so did the published version of my article on the very same subject. The article, titled "Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions, " is now available on the website of the Texas Law Review (and also as a pdf here ). I blogged about the article when I posted a draft of it on SSRN in February. In today's essay, I discuss the cert denial and my article, both of which address the following question: Are facially race-neutral means of achieving racial diversity in education (and potentially other contexts as well) subject to strict scrutiny in the same way that facially race-ba...

In an especially busy news environment, one story broke through that has nothing to do with cabinet nominations, Trumpian threats to jail his political rivals, or the fall of a despotic foreign dictator.  That story, of course, is the brazen murder of the chief executive of the largest health insurance company in the US (and probably the world).  A suspect has now been caught and charged, and the evidence at this point looks pretty damning.  But the wheels of justice will grind through, and one never knows what surprises might arise. My interest here is not in the criminal law, however, but rather in the noteworthy public reaction (and reaction to that reaction) that has followed the murder.  Even before the apparent motive was established as almost certainly being tied to the health insurance industry, one could almost feel the righteous rage bubbling up, revealing in stark terms many people's lack of sympathy or sorrow -- and that is putting it mildly -- after the ...

One can never tell with certainty how the Supreme Court will rule based on the statements and questions from Justices during the oral argument. Nonetheless, I agree with the general consensus that, based on last Wednesday's oral argument in United States v. Skrmetti , at least five of the Court's six conservatives are likely to vote to uphold Tennessee's ban on gender-affirming care for minors. In today's essay, I'll explain why I am dubious that anyone will be able to write a persuasive opinion for that result relying on the grounds that most of the Court's conservatives apparently favor--a principle of deference to state legislation regulating medical treatments. I suspect that most readers are familiar with the case, so I offer the barest sketch. Tennessee and roughly half of the other states in the country have, in very recent years, banned gender-affirming care for minors. A federal district judge enjoined the Tennessee ban as unconstitutional, but the US C...

I recently wrote an article about teaching constitutional law as a legal realist for a symposium on legal education at the University of Pittsburgh. My main conclusions were the following: 1) Students need to learn the black letter “law” which is itself a challenging enterprise; (2) the   incoherence   of   the   Court’s   constitutional   law   cases   helps   students   improve   their   critical   thinking;   (3) if   a   student   is   going   to   practice   constitutional   law,   she needs to be able to manipulate formalism, history, text, and legal rules even if those tools do not drive results on the ground; and (4) I disclose my general beliefs about the Court to students on the first day of class so they have an idea what the course is going to be like. This post supplements that article with a few more thoughts and suggestions. If you believe doctrine dicta...