Dorf on Law

Recall at issue in Trump v. Barbara is President Trump’s Executive Order that purports to deny citizenship to children born in the United States to non-citizen parents who are not permanent residents. The federal district court in New Hampshire preliminarily enjoined the EO, determining that it violates both the Fourteenth Amendment’s Citizenship Clause and 8 U.S.C. § 1401(a) —which essentially parrots the language of the Citizenship Clause. The Supreme Court granted the government’s petition for certiorari, the briefing is coming in, and oral argument is set for April 1, 2026. The Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The government asserts that the Fourteenth Amendment’s language “subject to the jurisdiction thereof” excludes children born to parents who are not permanent residents, because they are not “subject to the juris...

In this column, I draw an analogy between how we came to understand COVID and how we should try to understand how Trumpism works.  To do so, I need to take us back to the bad old days of the early 2020's. In the years since COVID-19 turned the world on its head, I have heard people wonder aloud why we did some of the things that we did at the time, asking rhetorical questions along the lines of this popular example of the genre: "Remember when we were all microwaving the mail when it arrived?  How ridiculous was that?"  Although some permanently angry people bring that up now to claim that the entire response to the pandemic was too "woke," reasonable people are more or less bemused to think back on the ways in which we were all flailing our way through a suddenly changed world.  The vibe is more or less a "Can you believe how ugly our hairstyles were in the 1980's?" kind of thing. Although that latter group undeniably has the better of the two ex ...

I am pre-writing today's blog post on the afternoon of Friday February 6 because I have a busy weekend planned. By the time this essay goes live, for all I know the U.S. will be at war with Iran, a deal will have been worked out with Iran whereby sanctions are lifted in exchange for a Trump-branded Tehran casino, or, because nothing makes any sense anymore, both. Meanwhile, my subject isn't even the thing that would cause the most outrage if done by any other president in history to hit the news today . That dishonor belongs to Trump's social media post of a racist video depiction of the Obamas and his almost contrition. As The NY Times reported : "The decision to delete the link from his social media site was an unusual walk-back by Mr. Trump, whose own press secretary just hours earlier had brushed off criticism of the video as 'fake outrage' and made no attempt to distance the president from it." I'll focus today on this revelation : The Trump admin...

In 2022, the Supreme Court of the United States handed down the most anti-originalist and irrational decision interpreting the Second Amendment in American history. In  New York State Pistol & Rifle Association v. Bruen ,  Justice Thomas, writing for the conservative Justices, struck down a 1911 New York law that gave government officials discretion to approve or deny permits for the open carry of firearms. The Court held that judges can no longer uphold gun reform laws unless the government affirmatively points to similar laws from 1791 or 1868. The Court said that judges are not allowed to balance gun rights against the public policy concerns (no matter how important) that states use to justify gun restrictions. This "text and tradition" only test will be used  by the justices this term to decide two major Second Amendment cases. One  case  that was argued late last month (Mike wrote a helpful summary here ), involves an Hawaii law banning the carrying o...

It has not been at all difficult to predict what Donald Trump would be willing to do when it comes to dismantling constitutional democracy in the United States.  Anyone listening to him for the past ten-plus years could easily see that he was willing to do anything -- obviously including breaking the law -- to obtain and hold onto power. The only reason so few of us have a nearly perfect record when it comes to Trumpian predictions is that we have not been deterred by the idea that "he couldn't possibly try to do that."  Yes he could, and he has.  All of which means that the difference between people who have predicted his actions correctly and incorrectly is the difference between people who are realistic and those who are too scared to say what they see with their own eyes. The one true outlier was Trump's temporary departure from the scene on January 20, 2021.  Those of us who correctly predicted that he would never leave peacefully were proved right on ...

How could any honest person fall for false equivalence at this point?  A true but incomplete answer to that question is simple: No honest person would.  Most of the time, people who say that the left is just as guilty as the right when it comes to anything and everything are Republican hacks.  And even if those people truly believe that Democrats are just as bad as Republicans, that is not based on an honest assessment of reality but on a firm belief that the other side must be as corrupt and evil as their side is.  The old "if you believe it, it's not a lie" defense is not in fact a defense but rather a relocation of where the dishonesty lies. My writing here on  Dorf on Law  and Verdict  has focused so frequently on the problem of false equivalence that I dare not even begin to offer a "see, for example, these columns" list of citations.  As it happens, however, yesterday's column by Professor Dorf ended with a link to two columns in ...

My latest Verdict column discusses the absurd lawsuit that Donald Trump, his two eldest sons, and the Trump Organization filed late last week against the IRS and the Treasury Department. The suit seeks damages for a former IRS employee having leaked the plaintiffs' tax data to the public. The case should be tossed out on a motion to dismiss because the statutes of limitations (SOLs) have run. Whether there will be a motion to dismiss is not clear, however, given that defending against the suit falls to the Department of Justice that Trump has weaponized against his political enemies and which has dropped solid cases against Trump allies. As I explain at the conclusion of the column, therefore, whether the case is tossed on SOL grounds will depend on whether the relevant SOLs are "jurisdictional" and thus not subject to waiver by the government as defendant. As I also explain in the column, the suit is grotesque for at least three additional reasons. First, Trump's c...

It is hard to think of a more extreme example of a federal government effort to "commandeer" state or local government action than the Department of Homeland Security's "Operation Metro Surge" in the Twin Cities. President Trump and AG Bondi disapprove of policy decisions made by Minnesota and Minneapolis elected officials, from the way they have chosen to prosecute federal benefits fraud cases to their limitations on cooperation with immigration enforcement agencies. So in order to coerce Governor Tim Walz or Mayor Jacob Frey to comply with its preferred policies, the Trump administration has deployed thousands of ICE and CBP agents to terrorize the people who voted for them (and who largely did not vote for Trump). On this reading , Minnesota's lawsuit alleging, among other things, that Operation Metro Surge violates the Tenth Amendment's prohibition on commandeering should be a slam dunk for the state. So why did Judge Katherine Menendez (a Biden app...