Dorf on Law

Last week I sent out a lengthy article to the law reviews arguing that the Roberts Court, the most self-identifying "originalist" Supreme Court in American history, has in fact, and ironically, killed originalism. This blog post is a summary of the arguments I present in that piece. A majority of Roberts Court justices self-identify as either strong or moderate originalists at the same time as conservative legal scholars and pundits are praising the Robert’s Court’s adoption of originalism as the proper method to resolve our country’s most important cases. However, for almost twenty years, the Roberts Court has consistently changed constitutional law in non-originalist, anti-historical directions to be more consistent with the GOP’s modern agenda than the values of the Founding Fathers. In other words, in the hands of the Roberts Court, originalism amounts to nothing more than virtue signaling and camouflage. This disconnect between how the justices say they are deciding co...

While not exactly click-bait, this column's headline is deliberately somewhat deceptive.  (Hence, the parenthetical disclaimer.)  After all, given the political upheavals that we are all now witnessing in the post-rule-of-law United States, such a headline might well have been teasing a column in which I call on anti-Trumpists to be more aggressive in resisting no-longer-crypto-fascism. Indeed, in a column this past July, I noted that the Supreme Court's immunity decision  had given the outgoing Biden Administration the opportunity to prevent Trump from ever taking power (notwithstanding the election's outcome) by any means necessary.  In " The Court Has Invited the Democrats to Do Their Worst ," however, I noted that even if "the alternative-reality Democratic Party that suddenly learns to play hardball finally comes into existence," they would be unlikely to resort to political violence to prevent the end of constitutional democracy.  Such extremism is...

On Friday of last week, I argued that President Trump's Executive Order (EO) purporting to suspend implementation of PAFACA, the law banning TikTok so long as it is owned by ByteDance or another Chinese company, was not within the authority Trump claimed for it in the EO itself. However, I explained that Trump and whoever drafted the EO might have done better had they relied on prosecutorial discretion to forbear bringing enforcement actions based on conduct during the 75-day period. My bottom-line conclusion, though, was that the promise of enforcement forbearance was not enforceable, which explains why Apple and Google have not been assuaged by the promise and thus have not restored TikTok to their app stores. In response to my assertion that the promise is not enforceable, I received skeptical emails from two readers whose legal acumen I greatly respect. Why wouldn't it be an enforceable promise?, they asked. After all, the government enters contracts; it enters plea bargai...

This week, I published two new columns on Verdict .  Here, I will summarize both columns and add a few thoughts to supplement what awaits readers who click on the links.  As I will note below, this is all in the service of trying to find a way back from the wilderness in which the people of the United States now find themselves.  I used most of yesterday's column, " What Would Jesus Do? Law, Religion, and Patriotism Through the Looking Glass ," to criticize House Speaker Mike Johnson's blasphemous response to the Episcopalian Bishop of Washington.  I began that piece on a different topic, however, ridiculing Senator Lindsey Graham, who outright admitted that Donald Trump broke the law but then offered an odd defense that boiled down to: "Eh, he won the election.  What, you think he should obey the law?!"  It is especially depressing to remind oneself that Graham is not even close to being the most obtuse or shameless Republican in the Senate. But the b...

On Monday, Office of Management and Budget (OMB) Acting Director Matthew Vaeth issued a remarkable (even by Trump administration standards) memorandum to heads of executive departments and agencies instructing them to " temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant activities that may be implicated by [various of Trump's] executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal." (Bold letters in original.) Because of that "not limited to" and the fact that elsewhere the memo lists seven executive orders preceded by the word "including," it was unclear whether any federal expenditures were not subject to the order--with the exception of Social Security and Medicare payments, which were excluded by a footnote. The breadth of the primary language and the narrowness...

After President Trump won the election, we have seen several supposedly powerful individuals and entities bend the knee, kiss the ring, and obey in advance. In particular, we have seen media—both social and legacy—make surprising concessions to Trump and his movement. Mark Zuckerberg reportedly supplicated his way to Mar-a-Lago and thereafter announced that Meta would substantially change its fact-checking policy, and indeed eliminate third-party fact checkers, while also “personalizing” people’s political content. (Fun fact: This seems to have included automatically making my account follow Vice President J.D. Vance’s. I promptly unfollowed.) TikTok CEO Shou Chew thanked then-President-Elect Trump for his efforts in ensuring TikTok remained in operation, conveniently ignoring that it was Trump’s own Executive Order that put the TikTok ban in motion. And, among many other genuflections, several other companies donated generously to Trump’s inauguration committee. Another Trump entity ...

One way to know who among us can wield power is to pay attention to who makes the worst arguments.  No, it is not that good arguments allow people to gain power.  That would make sense.  The perverse reality is that making obviously -- even painfully -- bad arguments is almost invariably a sign of laziness, and that laziness in turn derives from the fact that people with power (and their allies) know that they truly have no reason to bother coming up with honest and compelling arguments. If that does not count as a paradox, it is at least a surprisingly backward state of affairs.  Because I have always been an argument-oriented person, I become especially exercised when I see people make jaw-droppingly bad arguments without conscience or consequence.  Reacting to truly bad arguments is probably the most consistent theme running through my writing here on Dorf on Law , on Verdict , and very much in my academic writing as well ("No, budget deficits do not automati...

If I were going to start hosting a podcast, I would title it "Wait, Can He Actually Do That?" Each week, my expert guest and I would examine one of the latest actions by the Trump 2 administration that breaks longstanding norms and seemingly exceeds the president's authority. Perhaps given the number of such actions we have already witnessed, it would need to be a daily or even an hourly podcast. However, I'm not going to host a new podcast. I'm already too busy, and there are already too many good (and even more bad) podcasts available. Instead, consider today's essay the first in an occasional series to run on this blog so long as Donald Trump remains in the White House. In today's essay, I tackle the executive order (EO) purporting to give TikTok a reprieve for 75 days . Future topics in the occasional series may include (not necessarily in the following order) the EO restricting birthright citizenship, the EO seeking to punish state and local officials...

As the number of shockingly awful actions by Donald Trump and his shameless henchmen grows by the hour, there will be a temptation to focus only on the most extreme and unprecedented among the outrageous arguments and policies that they unleash.  That would be a mistake, because a lot of what they will do is no less crazy simply for being oldies but baddies. It is not merely that we should avoid normalizing the abnormal but that Republicans long before Trump were already constructing and living in their own evidence- and logic-free universe.  Because I am an economist and tax policy scholar, I have unfortunately had a close-up view of a lot of the craziest and least defensible claims coming from Republicans about taxes for decades.  I thus ended  my column earlier this week  by discussing the mundane craziness of "trickle-down economics," only one version of which is the claim that "tax cuts pay for themselves."  Republicans generally claim to believe the l...

My latest Verdict column asks whether it matters if the Equal Rights Amendment (ERA) is now part of the Constitution. I begin by noting that in his final days in office, President Biden announced his view that the ERA is indeed the 28th Amendment, counting Virginia's 2020 ratification as valid, notwithstanding the fact that the National Archivist has not published it as such. After briefly recapping the reasons for and against thinking the ratification is valid, I then ask what practical difference it makes. My column casts doubt on one of the chief ostensible impacts touted by ERA supporters--the claim that ERA ratification has secured a right to abortion. As I explain, the Supreme Court's ground for rejecting an equality rationale for abortion rights in the Dobbs case was that distinctions drawn on the basis of pregnancy simply are not sex-based. That's obtuse, but it's no more obtuse if offered as a reason to reject an abortion right grounded in the ERA than one g...