Should Congress Codify the Dormant Commerce Clause?

by Michael C. Dorf

On Thursday of next week, I shall participate (as I have since its inception two decades ago) in the annual Practicing Law Institute Supreme Court Review. As always, it's a star-studded cast. Tickets for the live full-day panel, whether in-person in NYC, at a groupcast location, or via your computer, are still available. (I don't get a cut of the door; we panelists all volunteer our time.)

I'll be on just about all of the panels, mostly discussing cases that I've blogged or written Verdict columns about already, but invariably something falls through the cracks. Accordingly, today's entry discusses a case that involved the intersection of the 21st Amendment and the Dormant Commerce Clause. In the next two installments of my preview of the Review, I'll say something about the Establishment Clause case involving the "Bladensburg Peace Cross" (beyond what I wrote here and here), and I'll also provide my take on the Term as a whole.

But for now I want to say a few words about Tennessee Wine & Spirits Retailers Ass'n v. Thomas. After a very brief summary of the facts and holding, I'll turn to a questionable assertion by the majority in support of a proposition with which I ultimately agree.

Remembering Justice Stevens

by Anne M. Voigts

The difficulty in writing about the life of someone like Justice John Paul Stevens is in knowing where to start.  He led an exceptionally full life, and those of us who were lucky to share some part of that life for one Supreme Court term were in awe of his energy, and kindness, and humility (if not his notoriously spartan lunches).

Others will write about his opinions in cases like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or Bush v. Gore, but one far less prominent case embodies his fundamental decency and compassion.

The Disconcerting Many-Worlds Theory

by Michael C. Dorf

The Supreme Court Term is over, while the new one hasn't begun. There's plenty of legal news to blog about, most of it terrible, but it's summer, and I need a break. Hence, today I shall discuss a topic unrelated to law: How should I feel about an infinite multiverse? I realize that's a bizarre question, so I'll begin with the backstory of how I got interested in it.

Why Trump's Latest Outrage Struck a Nerve

by Michael C. Dorf

[Note: In the next several days, I shall post a remembrance of retired Justice John Paul Stevens, who passed away last night. He was a great and a good man. For now, though, here's more on our racist president.]

In an excellent and sobering blog post on Monday, Prof Martin Lederman described Donald Trump's tweets urging four Congresswomen, three of whom were born in the US, to go back to where they came from, as nothing new about Trump's character. As Prof Lederman has argued in other fora as well, what's so alarming is not Trump but the failure of all but a handful of never-Trump Republicans and conservatives to unequivocally condemn the president's racism.

I don't disagree with Prof Lederman that Trump's enablers are the real story, but I want to suggest that there is something new here--not because it will lead Trump's devotees to abandon him, but because this latest outrage from the Outrager in Chief is personal for more people than nearly all of his prior outrages were.

Civilization and Taxes, Through an English Lens

by Neil H. Buchanan

Because of travel commitments, I regret to report that I am not able to offer readers a new column here on Dorf on Law today.  (With the latest racist rants coming out of the White House, perhaps it is better for my mental health not to engage for the time being.)  I did, however, recently publish my annual "jot," which is an essay for the online legal magazine "JOTWELL -- The Journal of Things We Like (Lots)."

This year's jot is titled "The Law of Taxation Is the Lynchpin of Civilization," in which I review the introductory chapter of a book edited by John Snape and Dominic de Cogan, two tax scholars from English universities (Warwick and Cambridge, respectively).  Although the book that their chapter introduces is excellent on its own merits, the Snape/de Cogan lead-in is truly outstanding and easily stands on its own as a contribution to knowledge.  I like it (lots), and I commend it to readers' attention.

One quick thought comes to mind, inspired by the now-standard "full disclosure" statement.  I have had some early discussions with Snape and de Cogan regarding possible academic collaborations of various sorts.  In some sense, then, one could say that my positive review of their work on Jotwell (and here) is a bit of an "inside job," that is, a glowing assessment not based on the merits of their work but on a personal connection.  To draw such a conclusion, however, would be incorrect.

Such an inference is, in fact, a classic example of reverse causality.  That is, it is not that I am reviewing Snape and de Cogan positively because I am planning to work with them; rather, I am excited to work with them because I view their work so positively.  Indeed, frequent readers of this blog are likely to note that Snape and de Cogan have independently written about many of the issues that have consumed my attention over the years.  Combining our efforts is thus eminently sensible.

In any event, the "jot" can be found at this link, and I am also providing it here for the convenience of our readers.  Enjoy!

Ted Cruz and Other Right-Wing Trolls Say that Democrats are the Real Racists Because They Used to Be

by Michael C. Dorf


Last week, Tennessee Governor Bill Lee took bipartisan heat for signing a proclamation declaring July 13 "Nathan Bedford Forrest Day." Did Lee deserve the criticism? Maybe not. A state law obligates the governor to declare holidays honoring, respectively, Forrest, Confederate General Robert E. Lee, and Confederate Decoration Day. Yet Governor Lee is not entirely blameless. Given his own past expressions of admiration for the Confederacy, he could certainly be doing more to secure passage of a new law repealing the existing obligation to declare the offensive holidays.

But let us put Lee aside for the moment to focus on one of his critics. Texas Senator Ted Cruz took to Twitter to call out Lee and Tennessee legislators. Cruz tweeted:

This is WRONG. Nathan Bedford Forrest was a Confederate general & a delegate to the 1868 Democratic Convention. He was also a slave trader & the 1st Grand Wizard of the KKK. Tennessee should not have an official day (tomorrow) honoring him. Change the law.

I agree with nearly all of that. Why only nearly all? Because in the midst of an otherwise quite sensible anti-racist plea, Cruz could not resist trolling Democrats. Of what possible significance is it that Forrest was a delegate to the 1868 Democratic Convention? The slogan of that convention was: "This is a White Man's Country, Let White Men Rule." Perhaps Cruz was referring to that?

Not a chance. How many of Cruz's Twitter followers or Americans more generally are sufficiently familiar with the history of the period to know the 1868 Democratic convention's slogan or anything at all about it? Can you name the Democratic nominee for the presidency in 1868? (Answer here.)

So why did Cruz list Forrest's status as a delegate to the 1868 Democratic Convention alongside sins like his role in the Klan? The short answer is that Cruz was engaging in a now-common bit of misdirection from Republicans: calling attention to the fact that prior to the mid-1960s, the Republican Party was overall less hostile to civil rights and less racist than the Democratic Party--as though that should somehow discredit the modern Democratic Party. This move seems aimed at two audiences: easily confused low-information voters; and white voters who would otherwise be uneasy about the GOP's arguably racist policies and the inarguably racist president.

Constitutional Crisis Watch: Any Reasons for Optimism?

by Neil H. Buchanan

As the unraveling of constitutional norms continues apace under Donald Trump's unfocused gaze, the toadying by Trump's Republican enablers has caused me to wonder whether there is anything that would be too much for them.  In particular, frequent readers of this blog and of my columns on Verdict know that I am worried to the point of panic about whether Trump will ever leave office peacefully.

Although there is no reason to take Trump's former private lawyer/fixer Michael Cohen's legal views seriously, I do think that he had no reason to simply fabricate the idea (based on his observations of Trump, not on any legal theory) that if Trump "loses the election in 2020, ... there will never be a peaceful transition of power."  Certainly, everything that we have seen from Trump indicates that he would not hesitate to try to stay in the White House at any cost; and what we have seen from the Republicans to date suggests that, if they do have a limit to their enabling of Trump, we have not approached that limit yet.

Even so, in a search for even the thinnest of optimistic reeds, I have been trying to find ways to see a way forward in which Trump loses and leaves office without (too much of) a fuss.  Thus, three weeks ago, I tried my very best to describe a way in which Republicans might be "working Trump" behind the scenes, derailing his worst impulses (for example, forcing him to drop his efforts to put Stephen Moore and Herman Cain on the Federal Reserve Board), thus allowing us to think that perhaps they are exercising more control than is apparent to the naked eye.

Today, I offer an update on these matters, responding specifically to one very bad argument for optimism and one possibly good one.  In an environment where all can seem lost, even a little bit of ambiguously good news is welcome, as I will argue below.