Dorf on Law

Law Professor Caleb Nelson made a big splash this week by arguing that under the text and original meaning of the Constitution, Congress has the power to place limits on the President's ability to fire most executive officers. If he is right, the Roberts Court's many cases to the contrary are incorrect as an originalist matter. Additionally, most people expect the Court to reverse the landmark case known as Humphrey's Executor   later this term. That decision allowed the Congress to insulate the commissioners of the Federal Trade Commission from termination by the President absent cause. If Professor Nelson is right (and he is), that reversal will also be a mistake as an originalist matter. What makes all of this so newsworthy according to The New York Times , The New Republic , and many other outlets is that Professor Nelson is a former Justice Thomas law clerk and a self-identifying originalist whose work is often cited by the conservative justices in their opinions. Her...

Yesterday the Supreme Court heard oral argument in Bowe v. United States . In my Verdict column previewing the case, I highlighted the case's potential to resolve a longstanding constitutional question: What are the limits on Congress's power to remove cases from the Supreme Court's appellate jurisdiction under the Exceptions Clause of Article III?  As I explained in my column, an amicus brief by some Federal Courts scholars propounds the view of the late great Henry M. Hart  that Congress may not deploy its power under the Exceptions Clause in such a manner as to "destroy the essential role of the Supreme Court in the constitutional plan." I am dubious of the argument put forward in the Federal Courts scholars' amicus brief for the proposition that maintaining the uniformity of federal law is an essential function of the Supreme Court--at least if it's taken to mean that the Supreme Court must have the authority to resolve every possible conflict over t...

Note to readers: Another day of unexpected logistical issues has made it necessary for me to post a Classic.  New material returns tomorrow. Smile! We Live in the Least-Bad Timeline, Amazingly Enough By Neil H. Buchanan - December 20, 2024 For those people who are understandably freaking out about the ongoing chaos regarding the apparently inevitable government shutdown, along with the strange reemergence of the debt ceiling as a political weapon, Trumpian saber-rattling about prosecuting and harassing Liz Cheney and others, and of course the unexpected front-and-center position that Elon Musk has seized in US politics, I have one thing to say: This is the best reality that we could be living in right now. Why?  There is perhaps nothing new to say here, but it bears repeating again and again that if Donald Trump had not become " Mr. 49.8 " and won the presidency via the weird election system that the United States uses -- a system ...

Today is what the federal government calls Columbus Day and what some states (like New York in virtue of a 2021 gubernatorial proclamation ) and localities (like Ithaca in virtue a 2017 resolution ) recognize as Indigenous Peoples' Day. In celebration thereof, below I offer a classic column that first ran on February 20, 2023 in which I questioned both some of the holidays that mark our calendar and the dates we use to mark them. -- Michael C. Dorf ------------------------------------------------------- Time to Retire Presidents' Day? Today is Presidents' Day--or, as we say  here at Cornell Law School , Monday February 20, which we treat as no different from any other typical Monday during the academic year. In today's brief essay, I'll offer two reasons to abandon Presidents' Day. (1) There's something more than a little problematic about honoring George Washington,  whose Mt. Vernon estate and thus his livelihood did, after all, rest on the enslavement of ...

When writing a column like this one, it is no longer possible to provide a manageably short list of the unprecedented things that are happening in the United States without leaving out some profoundly disturbing horrors.  Indeed, as I wrote yesterday , there are now so many awful things happening that people would necessarily have trouble choosing the "this" that best fits the rhetorical question: "How is  this  not the only thing that we are talking about?"  My pick in that column was the attack on an apartment building in Chicago last week by ICE agents.  The agents brutalized everyone in the building, not even bothering to pay attention to who their actual supposed targets were -- which, of course, suggests that in fact any person they happen to come across  is  their target. The central idea of yesterday's column was that the Trump people are obsessed with cinematic tropes and stale conventions that they have seen in movies and other pop culture....

One of the laments that I have seen more and more in the Trump II era is some variation on this rhetorical question: "How is  this  not the only thing that we are talking about?"  There are so many outrageous things happening at all times that we lose track of too many truly terrible things in the maelstrom, with a new outrage always there to move attention away from ongoing horrors.  Sometimes the next distraction is silly, like so-called escalator-gate , in which the Foxiverse recently went insane claiming that a slow-moving set of stairs  lurched  to a halt and nearly injured or killed their favorite autocrat.  But usually, the next news cycle is filled with some other genuinely horrible thing that should hold everyone's attention, only to be replaced again with something else,  ad infinitum . None of which is to say that I do not understand why some big stories disappear.  But "something else horrible happened, so we need to talk about th...

Monday on this blog I previewed the oral argument in Chiles v. Salazar , highlighting my ambivalence about the case: although I am in sympathy with Colorado's policy goals in banning conversion therapy, I expressed concern that if Colorado wins on the ground that regulations of talk therapy are not regulations of speech and thus trigger only rational basis scrutiny, then the same argument would be available to sustain a hypothetical red-state ban on gender-affirming care accomplished wholly through talk therapy. Unsurprisingly, several of the Justices raised the same concern during yesterday's argument . Justice Kagan asked about "the exact opposite kind of law," and Justice Gorsuch inquired about a "mirror image" law. To their credit, both James Campbell, arguing for petitioner Kaley Chiles, and Deputy SG Hashim Mooppan, arguing for the U.S. as amicus, acknowledged that if Colorado's ban triggers strict scrutiny, then so should a mirror-image law bannin...

On Tuesday, the Supreme Court will hear oral argument in Chiles v. Salazar , a difficult case involving “conversion therapy.” Colorado, like many other other states, bans treatment that is intended to change a minor’s sexual orientation or gender identity. The law makes an exception for people “engaged in the practice of religious ministry.”  The plaintiff is a Colorado Springs Christian therapist who argues that the law is an unconstitutional gag order on licensed counselors. Colorado argues that the ban simply regulates a dangerous and ineffective medical treatment. The lower courts ruled for Colorado mostly on the basis that the law primarily regulates professional conduct, not speech, and therefore the law does not violate the first amendment. This case is difficult because it requires the balancing of the state’s permissible goal of regulating dangerous medical treatments with the free speech rights of therapists and others to say to their clients what they feel is important ...