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Standing Doctrine in Environmental Cases Was Always Too Strict. After the Ballroom Case, It's Impossible

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In Monday's per curiam opinion in National Park Service v. National Trust for Historic Preservation , the 5-4 majority said that a setback to an aesthetic interest in observing historic sites (such as the White House before Trump took his wrecking ball to it) is not a sufficient injury to confer Article III standing on an individual or group of which that individual is a member. The dissent by Chief Justice Roberts and the Supreme Court's three Democratic appointees argued that the per curiam misapplied the Court's standing precedents, especially Lujan v. Defenders of Wildlife . The dissent is correct. The  Lujan Court said that indefinite plans to visit a region in the hope of observing members of an endangered species are not a sufficient interest under Article III but, citing earlier cases upholding standing for environmental plaintiffs, the Lujan  Court acknowledged that someone with a particular professional or other interest in an animal species would have standing to...
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My Failure as an Indoctrination-Crazed Lefty Professor (Part 1 of 2)

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I taught in US colleges and universities for my entire 43-year career (with some visiting gigs in Canada and other not-America places along the way).  I am politically progressive.  Did I indoctrinate my students and change their political views to mirror mine?  Not even close, nor did my colleagues (including my conservative colleagues).  Even so, the unshakable belief that "liberal universities" are poisoning the minds of the young is an article of faith on the political right. The drumbeat of panicky accusations against professors is omnipresent, but despite its stale familiarity, it is ever more important to push back against this disinformation at a time when the Trump White House is in full-on attack mode against American higher education.  Here, I will have some fun with a particularly silly version of anti-university sanctimony from a Trump cabinet secretary and a  New York Times  columnist, followed (starting in Part 2 of this column la...
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When Will Trump Try to Change "New Mexico" to "New America?"

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Residents of Albuquerque, Sante Fe, and other parts of New Mexico should count themselves lucky that Donald Trump is so ignorant that he is probably unaware of the existence of their state. Should he learn of it, then the next time that the Mexican government takes some action (or inaction) that displeases him, he would likely order the Secretary of the Interior and the Board on Geographic Names (BGN) to begin referring to the Land of Enchantment as "New America." After renaming things for himself (the Kennedy Center, the U.S. Institute of Peace, Palm Beach International Airport, dozens of Trump Towers, etc.), Trump's signature naming moves involve problematic throwbacks (Fort Bragg, Mt. McKinley), bombastic ones (Department of War), or a lazy default to "America"--as with the erstwhile Gulf of Mexico and Lake Ontario. Or maybe not so erstwhile. In my latest Verdict column , I discuss Trump's executive order involving Lake Ontario . I explain that: (1) the r...
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Can the US's Political System Remain Stable in the Face of Growing Threats of Violence?

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Note to readers: Last week, I wrote " Debt Fear-Mongering Has Moved from Mockable to Dangerous ," discussing the carefully orchestrated public freakout over the -- all together now -- "forty trillion government debt."  Over on Verdict , I have now followed up with a two-part column, "Questions About Federal Debt Are Serious, but the Wailing and the Gnashing of Teeth over the '$40 Trillion Debt' Are Not" ( Part One  yesterday and  Part Two  today).  There, I dive into some of the technical details that I was unable to fit into last week's column, and I also discuss the more mundane -- but extremely important -- consequences of increases in borrowing, in particular how public (or private) borrowing can move interest rates and thus exacerbate affordability problems. Because I hope that many readers will click over and read both parts of that column, I am keeping today's column here a bit shorter than usual.  Enjoy!   --------------------------...
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Cultishness, Social Comfort, or Fear of Violence: Why Not All Three?

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Because of the endless churn of the news cycle, the capitulation by three lame-duck Republican Senators to the Todd Blanche nomination not even three weeks ago is now very old news.  In a Dorf on Law   column last week, I discussed those three poseurs -- Bill Cassidy, John Cornyn, and Thom Tillis -- who preened about for a few weeks claiming that they might possibly, maybe oppose the obviously corrupt and dangerously anti-constitutional Blanche as (non-Acting) Attorney General.  They all made plenty of noise and then, completely predictably, fell in line. Why come back to that today?  After all, the world now must contend with a declared trade war between Canada and the United States, as well as [quickly reloading the main page of the  New York Times  website to see what fresh hell awaits] the evil expansion of ICE activities to deport record numbers of powerless people (now specifically targeting people who are not criminals, thus no longer even pretendi...
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Party Loyalty as a Legitimate Factor in Constitutional Law Cases or Legal Realism run Amuck?

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Author Disclaimer : The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of  our school of thought.                                                                 ************************************** In a provocative new essay  forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimat...
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Could Mike Johnson Foil a Democratic House Victory? Yes, But Only With Help from the Supreme Court and/or Red States

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Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday  the Court issued a per curiam opinion  in Trump v. California  allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received. Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais   ( further ) gutted the Voting Ri...
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Trump and Robert Moses (Guest Post by Professor Martin Siegel)

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Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a  federal civil rights suit , and Roy Cohn, who  schooled Trump  in the art of never admitting defeat while personally savaging and countersuing opponents.   But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.      In his legendary biography of New York’s master builder,  The Power Broker , Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders.  No matter the losses in cou...
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Debt Fear-Mongering Has Moved from Mockable to Dangerous

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The lead news story for most of the day at  The New York Times on Wednesday was: " U.S. Debt Hits $40 Trillion as America’s Borrowing Binge Continues ."  Again, that was a news story, not an editorial.  The US is on a borrowing binge , you see, and if we are to believe that  The Times  upholds its professed standards of journalistic objectivity, that is a factual and neutral statement. I will not bury the lead/lede here. There is no reason to panic about the US debt situation.  I will return to that conclusion in some detail below, but the key point up front is that there is nothing new in what The Times reported on Wednesday, other than the number $40 trillion itself, which Paul Krugman correctly described as "a number that is big and round, but otherwise has no special significance." The last time The Times went back to the debt fear-mongering well (on May 9 of this year), I offered a prediction: "The next trillion in gross debt that the US will...
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