Dorf on Law

Yesterday the Supreme Court issued a one-paragraph order rejecting the Trump administration's application for a stay of the injunction against implementation of the Post Office's new rule that would have likely disenfranchised a great many voters, deterred many others from voting by mail, thrown the midterm elections into chaos, and--in light of asymmetrical use of mail voting by Republicans and Democrats since the pandemic--skewed the midterm election results in favor of Republicans. The decision was welcome news for big-D Democrats but more importantly for small-d democrats, i.e., people who care about preserving what's left of American constitutional democracy. We can breathe a sigh of relief, albeit a small one, given that Trump and the Republicans continue to make further anti-democratic maneuvers . They have already used mid-decade hyper-partisan gerrymandering to tilt the playing field and might send ICE and other federal law enforcement officers to the polls, seize...

The Supreme Court’s fabricated standing doctrines are not grounded in text, history, tradition, or common sense. Standing case law is so incoherent that finding supporters of it is virtually impossible, and that includes folks on the left, right, and in the middle of the political spectrum. The cause of much of the incoherence of standing doctrine is the requirement that plaintiffs suffer a personal injury (sometimes referred to as "injury-in-fact) separate from the legal violation they allege in their complaint. The Court grounds this requirement in the language in Article III that the federal “judicial power” only extends to “cases” or “controversies.” Pursuant to this key to unlock federal jurisdiction, it is not enough that a plaintiff alleges a violation of a federal statute or the Constitution. Instead, she must show damage to life, liberty, or property or on rare occasions, some other less tangible interest. For example, taxpayers do not have standing to challenge spending ...

Today is the 25th anniversary of the terrorist attacks of 9/11. On the occasion of the tenth anniversary, I published on this blog two personal remembrances, one by Professor Buchanan on 9/9/2011 and another that I wrote on 9/11/2011. I revisited those recollections and added some more analysis in 2015 in response to a major terrorist attack in France. I won't reproduce any of those essays in full today, but I do want to draw on my 2011 and 2015 pieces to make a few observations about the circumstances in which Americans currently find ourselves as a nation. To draw the linkages I wish to draw, I do need to quote briefly from my 2011 and 2015 essays. I'll take them in reverse order. My 2015 essay warned that following through on the bellicose language from then-President Hollande of France risked repeating the mistakes the U.S. made following 9/11. I wrote: I am not advocating any particular policy path for France or the U.S. I am only saying that as we quite appropriately s...

Dolly Parton died two weeks ago.  Gloria Steinem's passing came a week later.  Both were admirable, powerful, and unique women who made indelible marks on important civil rights issues.  And if my words seem to massively understate the importance of their lives and work, I can only plead guilty.  Words do sometimes fail us all. Rather than writing general remembrances or half-informed biographies of either of these women, I will use this column today to comment on some notable aspects of their profound social impacts.  And although I am more than a bit uncomfortable doing so, I should note up front that my discussion of Steinem's legacy will include a genuine disagreement with a person with whom I almost never disagreed. First, Dolly Parton.  As many have commented, she somehow lived through one of the most divisive times in American history, when no one is universally liked (or even tolerated), yet everyone loved her.  Genuinely.  She...

In order to promote competition, the National Basketball Association (NBA) has a salary cap. Its rules (which are adopted as part of collective bargaining between the team owners and the players' union), are very complicated but the key point for purposes of today's discussion is that there are caps on both individual salaries and total team salaries. There are also anti-circumvention rules. As basketball fans undoubtedly know, the Los Angeles Clippers were recently given a very severe penalty for violating those anti-circumvention rules by using third parties to funnel millions of dollars beyond the official salary to their star player Kawhi Leonard. In saying the penalty is severe, I am not referring to the financial penalty. Leonard was fined $700,000, and Clippers owner Steve Ballmer was fined $30 million. But Leonard's salary for last season was about $50 million, so his fine amounted to less than 1.5% of one year's salary. Ballmer, meanwhile, is a co-founder of Mi...

Given my background and interests, I typically do not find myself writing columns about politics in Germany, and certainly not about German state elections.  As of this week, however, everyone must start to pay attention, because the neo-Nazi party that has been growing in popularity there (known as the AfD) won a key election in a state in the former East Germany.  The party did fall short of a majority, but the outcome is shaking European politics to its core. I will have much to say below about lessons from the German election for all of us in the United States, but I should first provide a bit of essential context.  To begin, why is the outcome worrying leaders across Europe rather than in Germany alone?  After all, despite the existence of the European Union, countries on that continent maintain their own unique and independent political systems.  Unfortunately, however, what the French have called the cordon sanitaire -- a commitment by non-ex...

In my Verdict column on Monday, I explained why a lawsuit under the Administrative Procedure Act by either New York State or a business that faces financial harm could succeed in blocking the official changing of the name of Lake Ontario to Lake America. In an accompanying blog post that same day, I responded to counter-arguments that I anticipated the government would make if faced with such a lawsuit. Today I follow up by explaining that a lawsuit is now ripe and would be even stronger than I originally suggested. As I noted in the Verdict column, when the Secretary of the Interior and the Board of Geographic Names (BGN) changed the name of the Gulf of Mexico to the Gulf of America, they failed to give effect to any of the considerations that, by law, it is supposed to take into account. Instead, they relied on a BGN policy that exempts geographic names chosen by the President from the ordinary procedures and considerations. However, the BGN had no authority to adopt a policy that ...

According to a former US Justice Department lawyer in a whistleblower disclosure, the Trump Administration's attacks on American colleges and universities over alleged antisemitism were "rushed and incomplete or ... failed to establish legal violations by the schools."  As reported by AP : The complaint alleges that the investigations into some of the nation's most prestigious academic institutions were designed to strong-arm the schools into cutting deals for political purposes. Outcomes of the investigations were "predetermined, without regard to the evidence" in a "politically mandated effort" to extract money from schools through settlement demands and funding freezes under the pretext of rooting out antisemitism, the complaint alleges. I know, we are all shocked, shocked that there is dishonesty going on here.  These are serious matters, of course, and the problem is in fact much larger, because although the whistleblower is surely correct th...