Dorf on Law

Professor Corinna Barrett Lain's new book Secrets of the Killing State: The Untold Secret of Lethal Injection (New York: New York University Press) came out this week. It is a tour de force, the best single volume about lethal injection and one of the best recent books about the death penalty more generally. It is also timely. While many of President Trump's other actions have (understandably) generated more recent attention, he did issue a Day One Executive Order encouraging more executions at both the federal and state level.  It feels odd to say about a scholarly book about the death penalty, but Secrets of the Killing State is fun. Lain is a gifted storyteller. The book provides a lot of information about lethal injection, but it reads more like a story. Secrets of the Killing State is a great resource for lawyers working on lethal injection cases, but it's also an accessible, easy read for lay people who want to learn more about the topic.   Lain begins with the mi...

Canada's election yesterday has dominated today's news in the US, mostly because it was such a stunning example of Donald Trump's reverse-Midas touch.  Trump somehow managed to revive Canada's Liberal Party, turning this year's election from a near-certain rout of the incumbent party into a stunning victory by Prime Minister Mark Carney's Liberals.  Not only did the Conservatives lose, but party leader (and would-have-been PM) Pierre Poilievre even lost his own seat in Parliament.  By 4.6 points.  For a seat that he had held for twenty years.  Yes, it was that bad. Here, I will first offer a few thoughts about the election and Trump's weird obsession with Canada.  Mostly, however, I want to reflect on Poilievre's downfall, because it was wonderfully delicious.  Indeed, I wrote the headline for this column by paraphrasing the headline of my column after another overconfident bully lost his chance to lead a nation: " For Sale or Disposal: One Governor...

Foreign leaders know they must bring a gift when they meet with President Trump. They must "kiss the ring" and show deference. The idea that the US has an "imperial Presidency" goes back at least to Arthur Schlesingers book with that title. But now we have a virtually untouchable "royal" President. U.S. Supreme Court Justices Sonia Sotomayor and Ketanji Brown Jackson used the term "king" while dissenting in the President's immunity case. And the scope of his absolution is breathtaking. President Trump was convicted on 34 counts of falsifying business records to cover up paying hush money to his lawyer for a prostitute. But the court "unconditionally discharged" the convictions when he was reelected. His status as President somehow nullified the criminal case, though nobody is supposed to be above the law. Right now, the President is refusing to comply with a US Supreme Court directive to “facilitate” the return of an immigrant wh...

At least for now, Donald Trump has disavowed his recent statement that Federal Reserve Chair Jerome Powell's "termination cannot come fast enough."  More accurately, even though he did in fact talk about Powell's termination and called him a "major loser," Trump now claims that he "never" planned to try to fire Powell, adding: "The press runs away with things." This reversal is not as good as it might seem, however, most obviously because Trump has shown on issue after issue (and whim after whim) that he changes his mind without warning (or apparent thought), so he might at any point change his mind back again regarding Powell and the Fed.  Moreover, as Professor Dorf explained in a column earlier this week, Trump will be able to name a new Fed Chair whenever Powell leaves, which will be at the end of the Chair's term in May 2026 at the latest.  And Trump will have been able to put a loyalist in place to be promoted to Chair a few ...

Yesterday, President Trump signed an executive order titled Restoring Equality of Opportunity and Meritocracy . It aims to eliminate liability for race-neutral (or otherwise relevantly neutral) policies that have a disparate impact based on a protected characteristic. Wait, can he actually do that? The short answer is no. Title VII of the 1964 Civil Rights Act is the federal statute that forbids employment discrimination based on race, color, religion, sex and national origin. It includes a provision,  42 U.S.C. § 2000e-2 (k), that expressly recognizes disparate impact liability. An executive order cannot repeal a statute. The longer answer, however, is "maybe Trump can do this with the aid of a conservative activist Supreme Court." In a concurrence in Ricci v. DeStefano  (2009), Justice Scalia warned of a coming evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act ...

President Donald Trump recently took to social media to call  Federal Reserve Board Chair Jerome Powell a "major loser" for failing to lower interest rates "NOW." Read against the backdrop of Trump's statement that Powell's "termination cannot come fast enough" and National Economic Council Director Kevin Hassett's confirmation that the administration is studying whether Trump can fire Powell, Trump's broadsides against Powell wreaked further havoc on Wall Street. Understandably so. The Fed is insulated from direct political control because of the worry that politicians will favor loose monetary policy in order to goose the economy, even at the risk of causing damaging inflation--or, in extreme circumstances, catastrophic hyper-inflation. There is every reason to worry that this is exactly what Trump would unleash were he to oust Powell in favor of a more compliant lackey who would do his bidding and lower interest rates NOW (assuming the ...

  So far, every time the Supreme Court has considered a challenge where conservative religious rights and LGBTQ rights were at odds, it has favored conservative religion. That is likely to be the case again in Mahmoud   v. Taylor, whose oral arguments were held Tuesday morning. In Mahmoud, parents argued that it violates their religious liberty if their children in public school read books with LGBTQ characters. The trouble started when the Montgomery County Public Schools in Maryland added LGBTQ-inclusive books to its English curriculum. The alphabet primer Pride Puppy , for example, follows a little puppy who gets lost in a Pride Parade. In Uncle Bobby’s Wedding, a child attends her much-loved uncle’s same-sex wedding. Instead of losing an uncle, she gains another one! Although the district originally allowed parents to pull their children when these books were read, it changed its mind on the grounds that the option proved too onerous and led to too much absenteeism. I...

Suddenly, knowing some things about the Federal Reserve is very important.  The latest gyrations in the financial markets were caused by Donald Trump's rediscovery of Fed Chair Jerome Powell as a political target.  Trump's previous Fed-related rhetoric had generally followed the timeworn pattern set by most presidents: Blame the Fed for whatever bad thing was happening, make noises about how the Fed should stop being so obtuse, and then move on. Not this time.  Now, Trump is openly talking about firing Powell, which is plainly illegal and is terrible in every substantive way as well.  At some point, I will write at length about those substantive matters, but today's discussion is about a narrow slice of this story, which is how Trump's top economist is aiding and abetting Trump's economically destructive impulses.  I wrote on April 10 about Trump's two highest profile economists, Peter Navarro (the anti-trade trade advisor) and Kevin Hassett.  Hassett's jo...

Just before 1 AM on the morning of Saturday, April 19, the Supreme Court issued an order directing the U.S. government not to remove (i.e., send to El Salvador) any member of a group of Venezuelans currently detained in Texas pending the Court's further order. The Court acted early Saturday morning because it appeared that the Trump administration was about to violate the limits on removals set forth in its  April 7 per curiam opinion . That opinion made clear that if the government wishes to remove the Venezuelans, it must provide them with notice of that intention "a reasonable time" before doing so "and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs." The Venezuelans in detention had received papers in English (which many do not read or speak) notifying them of imminent removal. Nowhere did these notices state that a hearing via habeas was an option. The ACLU promptly sued, and when the distr...

As John Oliver says at the top of each episode of Last Week Tonight , it has been a busy week. So busy, in fact, that for today's essay, I'm going to do a lightning round of observations on three of the major developments in just the last couple of days. 1. Contempt Let's start with Judge Boasberg's opinion in J.G.G. v. Trump , which "concludes that probable cause exists to find the Government in criminal contempt" for its willful failure to comply with his orders to halt and reverse flights carrying Venezuelans to El Salvador. Contempt sanctions run against individuals, not the government as a whole, however, and so Judge Boasberg is now trying to pry from the government information about who exactly made what decisions. Will that work? Assuming the proper defendants can be identified--which could require cooperation from the government that may not be forthcoming--there's good news and bad news. The good news is that in a criminal contempt proceeding, a ...