Dorf on Law

Having wasted  spent two and a half hours of my day listening to yesterday's oral argument in Trump v. Slaughter , I have less time than I typically spend writing up my musings for this blog, so I'll confine my commentary to four bullet points: •    Bottom Line : As I explained yesterday , given the Court's recent actions on the emergency docket, I went into the oral argument expecting that at least five and very likely six Justices intend to overrule Humphrey's Executor and thus invalidate good cause removal protection for Federal Trade Commissioners, with implications for most if not all independent agencies, subject to an ad hoc exception for the Federal Reserve. Nothing that happened during yesterday's oral argument changed that expectation. •     Respondent's Counsel Boxed Himself In : A key piece of the respondent's argument is that Humphrey's Executor is a 90-year-old precedent that should be preserved absent the sorts of considerations that just...

Today the Supreme Court will hear oral argument in Trump v. Slaughter , which presents the question whether the statutory prohibition on presidential removal of a Federal Trade Commissioner except for good cause is constitutional. The federal district court said it is and thus enjoined the defendants from giving effect to President Trump's purported firing of FTC Commissioner Rebecca Slaughter without cause. The D.C. Circuit then declined to stay the injunction, because, as that court explained, "ninety years ago, a unanimous Supreme Court upheld the constitutionality of the Federal Trade Commission Act’s for-cause removal protection for Federal Trade Commissioners. See  Humphrey’s Executor v. United States . " The outcome of the case is thus essentially a foregone conclusion, right? Yes, but in the wrong direction. The Supreme Court has twice signaled that it intends to use the Slaughter case to overrule Humphrey's . In its per curiam opinion in May, in Trump v. Wilc...

The Republicans on the Roberts Court love to lecture us on the importance of history to constitutional interpretation. But as almost everyone knows, the conservative justices use history only when it suits their purposes and ignores it or distorts it when history cuts against GOP goals and priorities. When it comes to voting rights and redistricting to ensure partisan advantage, the Court acts like our blatantly racist past that prevented racial minorities from being elected to state and federal legislatures never happened. History for me but not for thee. All of which brings us to Thursday's two-page "opinion" in Abbott v. League of  United Latin American Citizens.  overruling a 160-page lower court decision written by a Trump nominated judge after a nine-day evidentiary hearing finding that Texas illegally used race to give the GOP maximum partisan advantage in the state. Texas decided to redistrict in advance of the important 2026 mid-terms only after President Trump ...

In this relatively short week-ending column, I return once again today to the doom loop destroying US higher education.  Rather than analyzing yet another "deal" that yet another hapless university administrator has announced while smiling wanly for the cameras, however, it recently occurred to me that it might be a good idea to step back and ask a fundamental question: Does this truly matter, or is it merely what I happen to care about? After all, it is always possible for people to become convinced that everyone else also cares about something that is in fact quite unimportant or at least niche.  When my nephews were tweeners, for example, they could go on and on (and on and on and on) about Star Trek weaponry in excruciating detail.  Plenty of their peers -- and even more overgrown former tweeners -- cared passionately about those things as well.  I am not on any social media, but I hear that people spend hours discussing TikTok dance videos.  Even ...

Last week, Costco filed a lawsuit  in the Court of International Trade (CIT) against U.S. Customs & Border Protection (CBP), its Commissioner, and the United States, seeking declaratory and injunctive relief from the same tariffs currently at issue in the Supreme Court cases that were argued last month . Costco doesn't make any new arguments for the tariffs' unconstitutionality, instead relying on the CIT's own prior ruling in one of the cases now up at SCOTUS. Why now? Costco explains in its brief that the deadline for "liquidation" of Costco's tariffs is rapidly approaching. Costco acknowledges that CBP itself has the discretion to delay liquidation. It also acknowledges that even after liquidation, it has another 180 days in which to file a protest but, citing Federal Circuit precedent, its complaint alleges that a CBP liquidation might not be protestable even if unlawful. Judicial relief before liquidation, Costco contends, is necessary to preserve its...

For many years now, I have started just about every day of my first-semester-first-year Constitutional Law class with 5-10 minutes of "Con Law in the News." I encourage students to report on some story in the news that raises a constitutional issue, and we discuss it. Some days there is so much regularly scheduled material to cover that I skip Con Law in the News, but I have difficulty recalling any day over the course of the period in which I have been following this practice in which there were no newsworthy con law issues that we could have discussed. During the past semester, I had to put an arbitrary end to the discussion of Con Law in the News because, if I didn't, we would never get to the regularly assigned material. Even so, and even though the current semester started in late August--when we were already seven months into the second Trump administration--I was surprised at just how much fodder we had to discuss. To be sure, in the spring 2025 semester, I taught ...

In this column, although I will first make an announcement that is all about me, I will quickly explain the potential broader significance of the news, which will then allow me to return to a question that I posed last week about the absence of a " higher education gold rush " in 2025.  In short, I am still trying to figure out why -- even in the most promising environment in history for non-US universities to pick off American researchers and thus boost their own absolute and relative stature -- no one seems to be pursuing that winning strategy. But first, the personal news.  Some  Dorf on Law  readers will surely recall that I have been moving around the non-US world for the past few years, most recently moving to Dublin, Ireland, this past Spring.  There will soon be some updates about all of that, but today's news is not about permanently relocating to a new place.  Instead, I am happy to announce that I have accepted an offer to become a Senior Researc...

In a well-known scene in the well-known (but not very good) 1997 movie Air Bud , the protagonist golden retriever is permitted to play in a league game alongside his human teammates because the rule book contains no rule forbidding dogs from playing. The logic is absurd, of course. There is likewise almost certainly no rule forbidding agents of a team from surreptitiously spiking the opponents' water bottles with sedatives that sap their energy, but that doesn't mean that such tactics are permitted. Despite the silliness of its premise, Air Bud led to four sequels and a remarkable nine spinoffs: seven "Air Buddies" movies featuring the original Air Bud's puppies; and two Christmas-themed "Santa Paws" movies. Remarkably, a fifteenth Air Bud movie is slated to be released next year . But perhaps that film should be considered the sixteenth in the franchise, because there is an Air Bud drama currently playing out in Missouri--just not on film. It is the l...

With a major holiday in the US only two days away, this column will be uncharacteristically brief (slightly more than half the usual length of one of my columns here).  I encourage  Dorf on Law 's readers to use the time saved to gather the ingredients for a cruelty-free Thanksgiving. In any event, the question posed by today's headline -- "Where is the Higher Education Gold Rush?" -- reflects my observation about something that mostly has not happened.  Earlier this year, when the chaos of Donald Trump's return to the White House was becoming almost unbearable, it seemed that the rest of the world would quickly seize on an (unearned) opportunity for a "brain gain," hiring American academics who were horrified by what was happening -- not just to their country in general but to US higher education specifically. After all, the Trumpists' early shots at Columbia University and Harvard were truly unprecedented, and things looked to become even worse. ...

A few weeks ago at the Federalist Society National Convention,  Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit declared that, “we are in the golden age of originalism,”  and that judges should have " unwavering adherence to the original public meaning of the Constitution, come hell or high  water." At the same convention, 5th Circuit Court of Appeals  Judge Andrew Oldham forcefully proclaimed that originalism had won and questioned whether the Federalist Society should remain a "debating society," or just declare victory because "o riginalism does yield clear and objective answers.” These judges are incorrect. Originalism has not won other than as an identity card for people who want to attain success in conservative and Republican Party political and judicial circles. In a forthcoming article, I document extensively the almost complete absence of originalism in most important Roberts Court decisions. But regardless of whether I am ri...

Earlier this week, I summarized and linked to the amicus brief on behalf of myself and nine other constitutional law scholars in the transgender athlete cases currently pending before the Supreme Court. In today's essay, I answer two questions I've received in response. Question (1):  Why is my name listed both on the cover and inside among the ten represented constitutional scholars? Answer : Because I am acting in a dual capacity. I am one of the represented amici because the brief reflects my views as a scholar on the questions it addresses. I am listed on the cover as well because I worked as a lawyer on the brief--in the sense that I played a more substantial role in the writing and editing of the brief than I typically do when I am just one of the represented scholars. To be clear, I won't join a scholars' brief if I don't agree with it, but in many such circumstances, I'll review the draft and offer a few editorial suggestions. Occasionally one of the c...

Recent headlines suggest that resistance against Trumpian totalitarianism might not be futile after all.  " ‘Unforgivable’: Trump’s ‘piggy’ insult is stoking more outrage than usual " (news analysis article in  The Guardian ).  " The Three G.O.P. Women Who Broke Trump’s Grip on Congress " (op-ed in  The New York Times ).  " Is Trump a lame duck now? " (news analysis on CNN's website).  Even two of the very worst columnists out there posted another of those dreary "Conversations" in  The Times , the sub-headline to this one notably asking: "Is [Marjorie Taylor Greene} Paving the Way to the After-Trump?" I do not recommend reading that latter piece, but the larger point is that things are looking unexpectedly dicey for Donald Trump lately.  With that in mind, and because I am not able to write something new today, I offer here a re-run of a  Verdict  column that I published less than a month into the current Trump regime.  In it, I fo...