Dorf on Law

For quite some time, I have been highlighting the Republican Party's eagerness to rule the United States as a one-party, minoritarian autocracy.  (For one relatively recent example, see here .)  With Donald Trump winning the popular vote this time, does that change the story?  No.  Not for the presidency, and certainly not for the rest of the government.  That matters for many reasons, but before I get there, I will first update some of the key numbers that I summarized in a Dorf on Law column ten days ago. In 2020, everyone was told in advance that, because of the order in which some key states count votes, the early results would favor Trump but the later voting would favor Biden.  That is in fact what happened, and Trump then spent four years whining about "massive dumps" of votes at 3am that proved in his mind that something fishy was happening.  This time, the later-counted votes will not change the overall result, but because California is the last state to tabul

Last week, Professor Stephen Sachs, the Antonin Scalia Professor of Law at Harvard Law School, gave the annual Judge Bork lecture at the Federalist Society's national conference. Scalia, Sachs, and Bork--so much originalism all in one place, all at one time, and of course the Federalist Society was the epicenter of it all. There was a lot of news last week coming out of the Federalist Society's annual event. Judge Edith Jones of the Fifth Circuit took the occasion to personally and inaccurately insult Professor Steve Vladeck, partly by reading a handful of tweets which did not support her criticisms. The moderator, Judge Ho, certainly enjoyed and supported that awful display. I wrote not too long ago about lower court judges acting badly , and here were two more unfortunate examples. Then there was that hater of all things regulatory, Professor Phillip Hamburger of Columbia, toasting   the Court's efforts to dismantle the administrative state along with two Trump-nominate

In the public mind, Robert F. Kennedy, Jr. is most closely associated with the anti-vax movement. That's completely understandable. During RFK Jr.'s short-lived and quixotic independent presidential run, he rarely brought up his anti-vax stance, but his long history of spreading misinformation about vaccine efficacy and safety naturally led to questions from reporters about whether he has moderated his views. He hasn't. Thus, and again understandably, now that Donald Trump has announced RFK Jr. as his choice to head the Department of Health and Human Services (HHS), attention has focused on how he might use the powers of the office to undermine vaccination efforts. While RFK Jr. has disclaimed any interest in preventing people from receiving existing vaccines, there is good reason to believe that he would slow development of new ones (including desperately needed new ones for the increasingly alarming strain of bird flu that has made its way to mammals, including humans) a

In my Dorf on Law column last Tuesday, I argued that the people who voted for Trump this year -- as well as, crucially, the people who had voted for Biden in 2020 but stayed home rather than vote against Trump in 2024 -- should not be condescended to as if they are children who were "understandably" acting out against the world because they were upset about the economy (even though the US economy is, for the time being, in great shape), or whatever.  Sadly but predictably, however, this is exactly how non-Republican commentators have now chosen to distract themselves.  Do not hold voters responsible for their own actions in ushering in the new age of fascism.  Do not even blame Republicans.  Blame Democrats for being too much and too little, all at once. Why?  As one reader put it to me in an email after reading my column, millions and millions of the American "people saw Trump as an outlet for their hate, bigotry, misogyny, and racism.  [T]he Democrat's biggest mi

Not every clown in the clown car that will be the second Trump administration must be appointed in conformity with the Constitution's Appointments Clause. For example, people named to White House staff positions--including powerful positions like the Chief of Staff--are not officers of the United States. They can thus be named by the president unilaterally. Likewise, fake/advisory entities such as the "Department of Government Efficiency" can be headed by whatever ketamine addict and/or vulture-capitalist-turned-political-opportunist the president selects. But some of the highest-profile clowns are being proposed as principal officers who can exercise power only via the Article II, Section 2 procedure (as none of the named clowns currently holds an office that would entitle them to serve in an "acting" capacity pursuant to the Federal Vacancies Reform Act ). Since the abolition of the filibuster for appointments, only a simple majority in the Senate is required

One occasionally hears the phrase "the best and the brightest" used without intentional irony to describe  people as highly qualified experts and thus likely to do an excellent job in some demanding positions. The phrase nonetheless carries a negative connotation ever since David Halberstam's book of that name, chronicling how the Kennedy and then Johnson administrations blundered into, and continued to blunder once embroiled in, the Vietnam war. In standard cocktail-party settings, Halberstam's The Best and the Brightest is often cited (frequently by people who haven't actually read it) for the proposition that expertise is no guarantee of practical competence. Although that proposition is true, it isn't actually the point of the book. Halberstam offered plenty of evidence that the decision makers--especially Robert McNamara--were of course smart and well educated but that they in fact lacked relevant expertise and largely ignored the reports and warnings of

[Note to Readers: Earlier this week, in " Respecting Trump Voters and Abstainers Must Include Viewing Them as Responsible for Their Decisions, Not as Helpless Children ," my analysis amounted to an answer to a simple (but never explicitly posed) question: Who is condescending to whom?  I do plan to write the promised followup to that column, but that will have to wait until next week.  Here, I offer a Classic (that is, rerun) column from early 2018 that is eerily similar to what I wrote two days ago.  Even those readers who have not read that more recent column -- but you all should! -- might find the discussion below from almost seven years ago to be surprisingly up-to-date.]   There is a sub-genre of political punditry that relentlessly promotes the idea that the balance of future political power in the United States depends entirely on Democrats reconnecting with the people who voted for Donald Trump.  And to do that, Democrats supposedly need to "understand"

I had expected to spend at least several days and possibly several months of the post-election period weighing in on the intricacies of the Electoral Count Reform Act, Article II, the Electoral College, and all of the other pieces of the Rube Goldberg machine by which the United States chooses a president. Had the outcome been extremely close, post-election challenges and counter-challenges would have brought echoes of 2000 and 2020. Even if the outcome had been decisive for Harris, there would have been much to discuss, because Trump wouldn't have conceded under any circumstances. However, because the outcome was both decisive and for Trump, Harris--a normal politician and decent human being--conceded. Thus, the election-law and related issues have been mooted for at least four years. That is not to say that there are no post-election issues that overlap with my expertise. In the last week, I have fielded questions from reporters, colleagues, students, family, and friends about th

During the 2016 presidential election, I heard about a meme that went something like this: "I wanted a craft West Coast pale ale with citra hops and a crisp aftertaste, but this bar doesn't have that.  I shall thus drink battery acid."  The idea, of course, was that people were picking out one thing or another about Hillary Clinton that made them not want to vote for her, but they had no argument about why they voted for the toxic alternative that was Donald Trump. Of course, at the time, the background assumption was that Trump would lose badly in any case, so such votes for him would prove to be protest votes and nothing more.  Similarly, the large numbers of people who did not vote at all could hardly hide -- indeed, they were openly performing -- their sense of virtue in not sullying themselves with a Clinton vote, supposedly safe in the knowledge that other voters would do the dirty work of putting her in office. In 2024, Trump votes or non-votes were not protests.