Dorf on Law

After two and a half hours of oral argument in yesterday's tariff cases , I ended up roughly where I started. I am nearly certain that Justices Sotomayor, Kagan, and Jackson will vote to invalidate the tariffs and that Justices Thomas and Alito will vote to sustain them. I have Justice Kavanaugh as quite likely to vote to sustain them. Of the remaining three Justices, Gorsuch seems most likely to vote to invalidate, whereas Roberts and Barrett are difficult to handicap. Rather than parse the full transcript to justify or qualify those assessments, I want to use today's essay to suggest that the arguments that seemed most appealing to the seemingly undecided conservatives ultimately point to one of two possible outcomes: either the International Economic Emergency Powers Act (IEEPA) is an unconstitutional delegation of legislative power or it should be construed to afford the president less deference in application than the Justices seem to be contemplating. Justice Gorsuch was ...

Donald Trump is asserting more executive power than any President since the Civil War. He would likely not only agree with that assessment but be proud of it. As a result, our constitutional republic is in great peril. As I wrote recently: What is at stake are the twin pillars of American democracy that for so long have defined the United States and staved off tyranny: federalism and separation of powers. In the  words   of the “Father of the Constitution,” James Madison, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Although Madison was discussing the separation of powers at the federal level, the same idea applies to federalism. As Justice Anthony Kennedy often pointed out, the founding fathers split the  “atom of sovereignty ” between the national government and the states to diff...

Three hundred sixty-four days ago was Election Day 2024.  The polls going into the final weeks had been tight, but Donald Trump's increasingly erratic and outright weird behavior had led some of his top campaign advisors to start leaking stories -- clearly in anticipation of a bad outcome for their side -- in which they were blaming each other for campaign blunders.  It is difficult to remember now, but Kamala Harris had meanwhile pulled together on short notice what looked very much like a winning, disciplined campaign. For people like me, this all merely meant that the agony of the 2020 post-election period was about to play out again -- but worse.  To my mind, the only thing that looked like a certainty was that Trump would be back in the White House on January 20, 2025, no matter what happened at the polls on and before November 5, 2024.  When the results turned out to show a surprising bare-minimum win for Trump, that was in its way good news , simply because i...

On Wednesday, the Supreme Court will hear oral argument in two consolidated cases that present the question whether President Trump's imposition of tariffs under the International Emergency Economic Powers Act (IEEPA) was valid. A provision of the IEEPA grants the president the power to declare a national emergency to address "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." The Solicitor General (SG) argues in his principal brief that the president validly declared emergencies to impose: "reciprocal" tariffs on every country in the world (and those Antarctic penguins) to address the ostensible emergency of persistent trade deficits; and the on-again-off-again tariffs on Canada, China, and Mexico to address the ostensible emergency caused by the flow of fentanyl into the U.S. The SG's brief suggests that a president...

The news that NBA Hall-of-Famer and current Portland Trail Blazers coach Chauncey Billups, Miami Heat guard Terry Rozier, former NBA player Damon Jones, and possibly other NBA players, coaches, assistant coaches, and hangers-on have been indicted for various gambling-related offenses is shocking, but only in the classic Casablanca sense . As professional sports leagues have increasingly formed lucrative partnerships with sports gambling platforms, they have fueled the growth of a national addiction. The only thing that's shocking about the allegations in the indictments is that it took so long for these sorts of charges to surface. That said, I confess that I was initially puzzled about the involvement of Rozier--who made $25 million in basketball salary last year--and Billups--who made nearly $5 million in coaching salary last year and way more than that during his playing days. Jones, I learned, earned nearly $22 million during his playing career , but he retired in 2012, and man...

There is a truly bipartisan consensus in the US on one issue, a consensus that is demonstrably -- even trivially -- wrong but that harms millions of people.  All Republicans and far too many Democrats performatively rail against the supposed evils of government borrowing, their piety exceeded only by their irrationality.  This consensus is a tragedy, and it is why I have taken to echoing Paul Krugman's use of the term Very Serious People (VSP's) to describe the DC insiders and wannabes who know exactly nothing about public economics but who are proudly unwavering in their certitude that the federal government is sending us all to hell by taking on excessive debt. Yes, there are other policy areas in which we see similarly unfortunate American bipartisanship, notably in foreign policy (particularly regarding the Middle East), and a predictably ugly groupthink forms whenever it comes to military invasions.  A barely known Barack Obama was able to take down Hi...

As if we don't have more immediate problems, on Monday a reporter asked President Trump whether he was considering running for Vice President in 2028 so as to assume the presidency upon the immediate resignation of the nominal head of the ticket and thus circumvent the 22nd Amendment. Trump, displaying greater understanding of the scenario than I would have expected, said that he'd be "allowed to do that" but added: "I wouldn't do that. I think it's too cute. Yeah, I would rule that out because it's too cute. I think the people wouldn't like that. It's too cute. It's not - it wouldn't be right." At the same time, however, Trump didn't rule out unspecified other means by which he might serve a third term. But then yesterday, both House Speaker Mike Johnson and Trump himself conceded that the 22nd Amendment precludes a third term. Or did they? Trump said "based on what I read, I guess I’m not allowed to run. So we’ll see ...

I ate a low-fat cookie for dessert, but I didn't lose weight. It rained, but I didn't get soaked to the skin. Tariffs went up, but the economy wasn't immediately destroyed. Early last month, I inaugurated this occasional series of columns under the title: "Who Knew That Trump's Superpower Would Be Destroying Wealth?"  I have listed the three previous series entries (with links) at the end of this column. The penultimate sentence in Part 2 ("I will return to the question of tariffs specifically in my next column in this series, but the lesson for today is that chaos is bad for business.") turned out to be a bad prediction, because Part 3 was in fact not about tariffs or foreign trade at all.  That the tease in Part 2 turned out to be misleading should not be especially surprising, however, because the chaos of 2025 politics all but guarantees that events will overtake even the most earnest planning.  Indeed, long before Donald Trump's return to ...