Dorf on Law

It has been several months since my last entry in the " Wait, Can He Actually Do That?" series . That's not because President Trump has taken any time off from acting unlawfully. In fact, probably half or even more of the essays I've written for this blog and for Verdict in the intervening period have addressed legally dubious policies by Trump or his administration. But for many of those policies the real question has not been whether they were lawful but whether the administration could get away with acting unlawfully. Too often the answer has been yes--for a variety of reasons. Sometimes no one has standing to challenge the actions. In some circumstances, what Trump has done was plainly unlawful under existing precedents but then SCOTUS moved the goalpoasts. Often, even success in the courts would come too late to provide real relief and would not prevent the administration from launching a new attack. That is the logic that has led some law firms and universities ...

The FBI search of John Bolton's home and office was authorized by a warrant issued by a federal magistrate judge, which means that the magistrate judge found that there was probable cause to believe that the FBI would find evidence of a specific crime. From the public reporting , it appears that they were looking for evidence that Bolton unlawfully leaked or retained classified materials. However, doubts have been raised about whether the Bolton search was an ordinary law enforcement operation. Since serving as National Security Advisor for nearly a year and a half during the first Trump administration, Bolton has been and continues to be a vocal critic of Trump. Given that Trump and his underlings--not least FBI Director Kash Patel--have made no secret of their willingness to abuse the criminal justice system to exact revenge on Trump's critics and perceived enemies, many observers have understandably wondered whether the Bolton search was in retaliation for his criticisms of ...

Two months ago, in Mahmoud v. Taylor , the Supreme Court's 6-3 conservative supermajority delivered a potentially devastating blow to public schools. Justice Alito's opinion for the Court held that parents are constitutionally entitled to opt their children out of classes and activities that contradict their religious beliefs. As I wrote on this blog three days after  Mahmoud  was decided, the case is sweeping in its possible implications. Mahmoud itself involved objections to an LGBTQ+ inclusive curriculum, but parents could have religious objections to instruction in a wide range of subject matter areas, including astronomy, biology, geology, and, as Justice Sotomayor's dissent warns, much more--such as a parental objection to any materials that mention "women working outside the home" if that "conflicts with the family's religious beliefs." In my prior essay on Mahmoud , I complained that the Court's opinion gave inadequate weight to the admi...

In the introduction to my Dorf on Law  Classic column   earlier this week  ("Banana Republic or Legalistic Lawlessness?" from February 2020), I wrote: "Later this week (or possibly early next week), I will publish an update to the column below. ...   Rather than merely linking to the earlier column and hoping that people will click and read it on the fly, I thought I would reprint it in its entirety here." I do plan to write a new column next week about what I have dubbed legalistic lawlessness, so today's Classic is a followup to that earlier column that extends the argument into December 2024.  I hope readers will re-read that column (or read it for the first time), setting the table for next week's updated argument.   What Hardball Does and Doesn't Look Like By Neil H. Buchanan - December 17, 2024   How crazy is the world right now?  At least crazy enough that I managed to write an entire column last Thursday discussing the...

As I wrote on this blog a little under a year ago, Donald Trump believes that tariffs are magic. He seems unaware of the tradeoff between the ability of tariffs to spur domestic industry and their ability to raise revenue. At the risk of being pedantic, I'll explain the point again: If a tariff raises the costs of imported goods to the point that domestic goods not subject to the tariff have a competitive advantage, sales of the imported goods will decline, which in turn means that the government will collect less revenue than it would have collected if the imports had remained steady. Nonetheless, no serious person should be surprised that Trump frequently touts tariffs as being able to spur domestic production without any diminution in their ability to generate revenue for the government. After all, he also routinely states (and perhaps actually believes) that tariffs are paid by "other countries" rather than by U.S. importers who must eventually pass their costs on to...

Note to readers: Later this week (or possibly early next week), I will publish an update to the column below, which I published on February 20, 2020.   Rather than merely linking to the earlier column and hoping that people will click and read it on the fly, I thought I would reprint it in its entirety here (which is also helpful because I'm traveling today and thus do not have a fresh piece of analysis to share). Because that column first appeared on  Verdict , I suppose it's not truly a  Dorf on Law  Classic , but I'm willing to fudge a bit.   In any event, please enjoy and stay tuned.   Banana Republic or Legalistic Lawlessness? 20 Feb 2020 Neil H. Buchanan     ...

We are close to the twentieth anniversary of John Roberts taking office as the Chief Justice of the United States Supreme Court (September 2005). His Court has done almost unimaginable damage to our country in perhaps the most eventful twenty-year period for the Supreme Court in American history.  The conservative justices have destroyed American civil liberties, the separation of powers, and federalism in ways that have played a major role in bringing us to where we are today -- a few short steps away from a country that resembles fascism more than democracy. Below are my picks for the top ten most destructive constitutional law cases of the Roberts Court in chronological order. It was a hard list to make because there are far more than ten truly terrible cases, and people can reasonably disagree with this list. But this is a blog post, not a law review article. Non-constitutional law cases, such as the Court’s awful administrative law decisions, were not eligible.  One more ...

"The Harvard of the Unwoke" was the unimaginative title of a puff piece about now-former University of Florida (UF) president Ben Sasse.  That op-ed appeared early last year on the notoriously hard-right editorial page of  The Wall Street Journal .  (The column is behind a paywall that I hope no readers will pay to breach).  The idea was that UF was hoping to become to the right what Harvard supposedly was to the left.  The author informed his readers that the stakes were high: "Illiberalism, anti-intellectualism and identity politics were spreading on campus for decades... 'The culture of ideological conformity and monoculture at those schools is unhealthy not just for them, but for the nation at large,' Mr. Sasse says." How quaint.  Sasse is long gone , and the Trumpian right is no longer trying to set up alternatives to the elite institutions that they have habitually smeared.  Instead, they are now busily remaking everything to ...