Dorf on Law

In 1868, Congress passed a law forbidding home distilleries. That law remains on the books today. It is codified as 26 U.S.C. § 5178 (b). Last week, a unanimous 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the law is unconstitutional  because it exceeds the powers granted to Congress. As I shall explain, in light of a key concession by the government, that holding is arguably correct. As I shall also explain, the concession was a blunder, and while the outcome of the case is defensible, much of the Fifth Circuit opinion is not. Let's start with the statute's text. As relevant here, it provides: "No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house . . . ." Although codified in Title 26, which is the Internal Revenue Code, and thus arguably an exercise of the power of Congress to impose taxes (about which more in a moment...

As Winston Churchill tells the story in volume 1 of his history of World War II, The Gathering Storm , in 1935 Stalin was asked by French Foreign Minister Pierre Laval whether he, Stalin, might support Catholicism in Russia. "It would help me so much with the Pope," Laval says. "Oho!" Stalin replies. "The Pope! How many divisions has he got?" (Emphasis in original). Whether or not true, the tale is more about Stalin's character than it is meant to be instructive in the ways of realpolitik. At the time of Stalin's quip, Pius XI was Pope, and he more forcefully and loudly condemned the rise of Nazism than did his successor Pius XII, whose papacy began in 1939. Had Pius XI lived longer, the Church might have played a more active role in combating Nazism despite having no army--although historical counterfactuals are necessarily purely speculative. Donald Trump is a funhouse mirror version of a Rennaissance man: he is impressively ignorant about just ...

I highly recommend a new book of essays edited by Geoffrey Stone and Lee Bollinger called "Money, Politics, and the First Amendment."   Numerous election law experts contributed to this volume canvassing the Supreme Court's election law decisions dealing with the negative effects of money on free and fair elections. Most of the essays are critical of the Court's decisions and how they have contributed to the sorry state of our democracy. The entire book is well-worth reading. In this post, I want to highlight one of the essays written by Dean Erwin Chemerinsky and his son Alex called "Getting it Wrong: The Supreme Court and Campaign Finance." This essay is concise, persuasive, accessible, and with pinpoint precision demonstrates the severe harms caused by the Court's use of the First Amendment to limit legislative efforts to offset the distorting effects of the free flow of money on our election system. The authors make clear that they are not arguing th...

Would anyone who moved out of the United States before the onset of the current dystopia be so crazy as to move back?  In " Emerald Farewell ," published here on Dorf on Law two months ago, I revealed that at least one such crazy person exists.  It is I.  In that column, I mostly limited myself to offering a broad assessment of Dublin, which was my final foreign stop before returning to the US at the end of 2025.  I concluded with this somewhat snarky comment about Ireland: "It's a great place to visit. Full stop." In that column, I also teased a future  Verdict column: In an upcoming column on  Verdict  (from which I have been on leave), I will explain in some detail the pluses and minuses of expatriation in all of their gory, practical detail.  That column will also include my attempt to respond to those who might be saying, "Wait, you were actually out, and you  chose  to return now?" That new column, published this morning, is...

During my Federal Courts class earlier this week, a student asked me a question about a point I had made that appeared to contradict a sentence in the casebook I use for the course. I said that I was pretty confident I was right and the casebook was wrong but that I would do some legal research and get back to him after class. The upshot of that research is that I was indeed right but that the relevant sentence in the casebook was ambiguous, not necessarily wrong. It appeared to describe the law in a way that contradicted what I said but read in context it could also be understood to be making a statement about a reform proposal of various scholars. (I subsequently confirmed with one of the casebook editors that the language was indeed intended as the latter; he graciously agreed that the statement was ambiguous.) How did I determine that I was right? After class, I took to my computer to look into the issue. As I sometimes do these days, I decided to begin my legal research by posing ...

Tonight from 10-11 pm Eastern time, Professor Vik Amar and I will discuss the unitary executive theory (UET) with a special focus on the argued-but-still-pending SCOTUS case of Trump v. Slaughter . The late start time is because the live audience will be in Davis, California at the Schwartz/Levi Inn of Court . (For those unfamiliar with the concept, in the United States an Inn of Court is something in between a bar association and a social club for judges, lawyers, and law students. American Inns of Court are modeled loosely on their older UK predecessors, which also have regulatory functions like those of a state bar in the U.S.) I'll be Zooming in but the event is otherwise only in-person, so there's no remote access. Accordingly, for the benefit of readers of this blog and also to help me organize my remarks, here I'll set out the core of my view. I'll begin with the observation that although tonight's discussion was planned months ago, it couldn't be more ti...

The Trump Administration should lose the birthright citizenship case that the Supreme Court heard last Wednesday.  Full stop.  Professor Dorf's analysis  last Thursday of the oral argument in that case made it very clear why the government should lose, and he did so even while giving the other side every benefit of every doubt.  Moreover, he is hardly alone in that conclusion.  Again, this is not a close call. This is very much like the Court's recent decision in the tariff case, on which both Professor Dorf and I weighed in  a bit more than a month ago.  The Trump side's argument was so ridiculous that the 6-3 decision against him was merely evidence that there are at least three Republican appointees on the Supreme Court who are willing to toss logic, law, and evidence aside to enable their political leader's worst instincts. But what are the non-legalistic stakes in those cases?  That is, what if two of the six votes had switched in the...

Last week Florida Attorney General James Uthmeier sent a letter to the NFL claiming that the League’s Rooney Rule , aimed at increasing diversity in the top ranks of NFL teams, is “blatant race and sex discrimination.” Concurrently, Uthmeier posted a video to X contending that the Rooney Rule violates Florida law. The Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney, requires among other things that a team “interview at least two external minority candidates in person for open head coach and GM positions and at least two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women. Uthmeier’s challenge is ostensibly to the NFL’s efforts to increase minority representation in its management ranks, but in reality it goes so much further. This kind of interview set-aside to promote diversity is common. For example, law firms have also implemented similar types of rules —e.g., M...

I hope that this Friday is good for everyone.  Or should I say Good?  Anyway, pleasantries aside, this will be a relatively short column to end the week, focusing on what has come to be called bothsidesism, sometimes also known as false equivalence, a topic on which I have written frequently on this blog (most recently here ). More accurately, because the term bothsidesism was coined specifically to highlight a fundamentally dishonest political move -- "I'm bad for wanting to end democracy?  Well, you once tried to get a parking ticket fixed by a friend at City Hall.  Samesies!" -- I want to explore what we might call onesideism.  The number of possible examples is enormous, but I will focus on only two here, one quite simple and the other slightly more complicated. Have Democrats as a group, or even a large subset thereof, ever glommed onto anything similar to the "Obama is a Muslim" move by Republicans?  It is true that John McCain, in the late stages of ...