Dorf on Law

Yesterday, the Supreme Court heard oral argument in United States v. Hemani ,  which raises the issue whether a federal law prohibiting the possession of guns by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment. The defendant in  Hermani  admitted to using marijuana about every other day. The FBI searched his home and found a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. The prosecution's case rested solely on the defendant's “habitual use” of marijuana, which is how the government currently defines “unlawful user.” As I previously wrote here , this case should not be decided under the Second Amendment but on the basis that the government’s definition of “unlawful user” is too vague to give fair notice as to who is and who is not subject to the law. But, alas, the Roberts Court seems poised to decide this case under the infamous Bruen test, which allows the state and federal governments to...

In my last essay for this blog , I explained why the U.S. violated international law by initiating its war on Iran. I did not directly discuss whether Israel also violated international law by initiating the war, but I arguably implied that it did. Israel faced (and continues to face) more serious threats from Iran than the U.S. did (or does), but under the truce that more or less held until a couple of days ago, Iran's proxy Hezbollah was not attacking Israel, so that Israel wasn't being attacked or under threat of imminent attack. (Likewise with respect to Hamas, which has also received support from Iran). Therefore, Israel could not claim self-defense under Article 51 of the U.N. Charter. However, if I was mistaken about that assumption and Israel acted in lawful self-defense, then the U.S. attack would also have been lawful under Article 51 as collective self-defense. To be clear, I don't believe the war is lawful. Moreover, even if we could regard Israel as under actua...

Donald Trump's attack on Iran violates both international law and the U.S. Constitution. In this post and a subsequent one, I'll take seriously some arguments that, if accepted, could undercut those conclusions, not because there's any real doubt about them but because I expect Trump's supporters and apologists to make such arguments. In March 2003 I wrote a column explaining why the then-imminent attack on Iraq would violate international law but probably not violate the separation of powers under the U.S. Constitution because President Bush sought and received congressional authorization. Trump's attack on Iran is equally a violation of international law but also a clear violation of the U.S. Constitution. Today I'll discuss international law. In a follow-up essay , I'll discuss the U.S. Constitution. The U.N. Charter--which is a multilateral treaty to which the U.S. is an original party--authorizes the use of military force in precisely two circumstances...

Wikipedia tells us that "Eeyore is generally characterised as pessimistic , depressed , and anhedonic ."  Being a political Eeyore is complicated, however, for someone like me who is in fact stubbornly optimistic.  I can write something like, say, " Happy Birthday, America: 249 Years Was a Pretty Darned Good Run ," any day of the week.  I can even criticize other people's attempts to see an upside: I have honestly admired the giddy optimism of those who have consoled themselves with the idea that the Democrats can ride the anti-Trump wave of public sentiment to victories in this year's midterm elections, so much so that I have occasionally allowed myself to imagine that such a thing could happen.  But a clear-eyed pessimist is still a clear-eyed pessimist.   Yet despite such sterling Eeyorean credentials, I cannot stop myself from wondering whether there is still a way for the world to turn around.  I thus offered " Top Priorities for a Harris Pr...

As of today, transgender Kansans whose driver's licenses denote their gender identity rather than their sex assigned at birth (as was previously permitted under Kansas law) commit the offense of driving without a valid license thanks to a new state law enacted by overriding the governor's veto. Here is the critical language:  (1) Any driver's license issued prior to July 1, 2026, that identifies the gender of the individual named on such license in a manner that is contrary to the definition of such term as defined in K.S.A. 2025 Supp. 77-207, and amendments thereto, shall be invalid. (2) The director shall correct any driver's license records that identify the gender of the individual named in such record [except via sex assigned at birth]. The director shall send written notice to each such individual notifying such individual that such license is invalid and to surrender such license to the division of vehicles. Upon the surrender of any such license, the director s...

In " Trump's Almost Completely Bonkers Reaction to the Tariff Ruling ," Professor Dorf bent over backwards to provide arguments that could justify adding the modifier "almost" to his headline.  I trust that he was not injured by those calisthenics, although I do imagine that such an effort at being scrupulously fair pushed the limits of human endurance.  Specifically, Professor Dorf wrote this: Trump echoed (albeit less coherently) an argument that Justice Kavanaugh (joined by Justices Thomas and Alito) made in Part II(D) of his dissent: IEEPA [the International Emergency Economic Powers Act] authorizes the president to impose severe trade restrictions such as embargoes, so it follows that IEEPA allows him to "take the far more modest step of conditioning . . . imports on payment of a tariff or duty." This could be the basis for a coherent argument, but it happens to be wrong. Interested readers should definitely read Monday's column in full,...

Justice Antonin Scalia, who died 10 years ago this month, was fond of saying over and over again that “it takes a theory to beat a theory.” He often made this claim when people criticized originalism. Scalia’s point was that originalism skeptics did not have an alternative theory that was more persuasive. Recently, Professor Josh Blackman repeated this trope, suggesting that neither the political left nor the American Constitution Society (ACS) have come up with an interpretive theory more persuasive than originalism. Professor Blackman argues that all the left and ACS can show for their efforts fighting originalism is anti-Trumpism and anti-conservatism but no positive theory of constitutional interpretation . This argument was ridiculous when Scalia repeatedly yelled it at his many audiences prior to his death, and it is even more ridiculous today when Professor Blackman tries to give it new life. The reality is that originalism is not a theory of constitutional interpretation ...

In less than the 72 hours that have elapsed since the Supreme Court by a 6-3 vote rejected the Trump administration's assertion of authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA) in Learning Resources, Inc. v. Trump , the tariffs conversation has already taken numerous turns. First came the characteristically unhinged statements by the president himself . Astoundingly, many of the most insane claims appeared to be part of a text from which Trump was reading. He accused the Republican appointees who voted against him (Chief Justice Roberts and Justices Gorsuch and Barrett) of having been "swayed by foreign interests" and acting as "fools and lap dogs for the RINOs." It's by no means the most important point, but it was amusing to hear a president who has discarded decades of Republican orthodoxy on trade (and much else) accusing others of being Republicans in name only. It was further evidence (though none was needed)...