Dorf on Law

When did it become standard practice for Republicans not even to care about being called on their lies and hypocrisy?  The least worrisome current example of this is the fake outrage on the right after Canadian Prime Minister Justin Trudeau made a statement in which he spoke directly to "Donald," after which the same crowd that loved Trump's snide "Governor Trudeau" cracks shrieked in horror about Trudeau's purported failure to respect a foreign leader. The problem, of course, is that there are countless examples of much more damaging and dangerous lies that Trump and his entire side of the American political scene repeat endlessly, with a special emphasis on lies about the world's most discrete and insular minorities -- the weaker the minority, the more gleeful the Trumpists' attacks.  Sadly, these lies soon become Big Lies, at which point cowardly or calculating Democrats feel forced to make decisions about whether "this is the hill to die on...

Co-Authored by Eric Segall & Anthony Michel Kreis The Affordable Care Act is a thousand-page federal law regulating virtually all material aspects of the trillion-dollar health insurance/health care industry. Congress has the authority to regulate "commerce among the states." There can be no debate that the regulation of a one-trillion dollar industry that affects the commerce of every state is a regulation of "commerce among states." Nevertheless, shortly after the statute was passed, Federalist Society law professors along with the conservative media questioned whether the federal government had the authority to require people to buy health insurance.  The gist of their argument was that if Congress can require you to buy health insurance, it could also require you to buy broccoli, and that amounts to a federal government that is out of control. The problem with this argument, however, is that although the federal Constitution limits how the government may re...

Later today and as part of a conference, I'll have occasion to offer comments on a paper titled Democratic Constitutionalism by Avihay Dorfman and Alon Harel. Although the current paper is not yet publicly available, interested readers can find much of the argument they set forth in Chapter 3 of their 2024 book Reclaiming the Public . In this essay, I'll briefly summarize their argument, explain why I find it broadly appealing, and then offer three reservations. Summary Dorfman and Harel argue that in a constitutional democracy, we have reason to care not only about the law's content but also about the institutions that generate the law. Ordinary legislation reflects the majority's choices about policy questions, such as which public projects to fund and how. Constitutions, by contrast, include legal norms that do not (or at least should not) depend on the majority's choices. Such choice-independent norms come in two flavors: (1) universal obligations that all demo...

Volodymyr Zelensky's clothes?  Seriously?  As weird as that is, this is in fact not the first time that a foreign leader's fashion choices became a big deal to Republicans in Washington.  Back in the 1980's, the leader of an avowedly leftist political movement in Nicaragua, Daniel Ortega, traveled to the US in the face of Cold Warriors' fierce opposition to the upstart lefty.  (They need not have worried: "Despite the left-wing revolutionary rhetoric of the party, Ortega has allied with the business class and enacted what scholars characterize as crony capitalism .")  While he was in D.C., Ortega was ridiculed by the right-wing press for having purchased "designer sunglasses," which was of course said to be horribly out of touch with his "man of the people" stance.  How dare he!  It turned out, however, that the glasses were expensive because they were bulletproof, which made sense in so, so many ways. My point is that the "Zelensky i...

Very soon--perhaps just hours or even minutes after this blog post goes live--the Supreme Court will rule on the Trump administration's application for a stay of Federal District Judge Amir Ali's order that it comply with a previously entered temporary restraining order against the freezing of $2 billion in USAID payments. As readers are probably aware, on Wednesday of last week, Chief Justice Roberts issued an administrative stay to give the full Court time to consider the application. He also gave the plaintiffs two days to file a response. They did so on Friday . To my mind, the plaintiffs' response is persuasive, but the case in its current procedural posture implicates some fairly technical questions about civil procedure--including what's appealable and how--as well as the interaction between administrative law and statutes concerning how contractors can sue the government. It is therefore possible that the outcome of this particular case--whatever that outcome i...