Dorf on Law

Is Trumpism doomed?  In " How the Tide Might Turn: The Inevitable End of Trumpism ," which I published today on Verdict , I say that it is.  Many readers will probably not find my analysis to be especially comforting, however, because I do not put an end-date on the Trumpist phenomenon.  In some larger sense, of course, everything is doomed, if not when the Sun becomes a red giant then when the universe reaches the state of heat death .  Literalism is such a cheap escape hatch. My predictions of Trumpism's demise are a bit more short-term than that, of course, but in some sense my optimism-inducing historical example of an astonishingly positive political breakthrough is also achingly disheartening: the end of the Jim Crow era, a reign of terror that lasted for about ninety years before the Civil Rights movement's historic advances.  That is a very long time for human beings (other than cosmologists) to contemplate, and a lot of horrible things happened during ...

OPENING DISCLAIMER:  In addition to apologizing for the not-so humble brags in the following post, I also want to state clearly that, given our heinous and scary current events, this personal tale of legal scholarship is "small potatoes" at best. But Mike, Neil, and a few guest bloggers are doing a tremendous job bringing sanity to an insane world, and my current need is to express my truth, which happily is also the point of this post. But I do realize that these are desperate times and maybe this post is ill-timed. If so, no worries, this blog will return to normal programming soon. Also, whether the Court is a real court or not, this is not the time to question its authority, and nothing in this blog post should be taken to suggest otherwise. *********************************************************************************** On a cold winter day in early 2011, I put the finishing touches on a 50-page essay arguing that the Supreme Court of the United States does not take p...

Over the weekend, Elon Musk--who knows nothing about the law--and Vice President Vance--who certainly knows better--suggested that the Trump administration need not comply with judicial orders limiting its ability to withhold congressional appropriations (and other judicial orders) on the ground that courts lack power to interfere with "legitimate" executive action. That's a question-begging truism, however. The litigation resulting in the orders to which Musk and Vance object aims to determine whether the underlying executive actions are legitimate. In context, Musk and Vance were clearly suggesting that the administration would simply defy duly entered judicial orders. And there is good evidence that the administration is already disobeying some court orders. To be sure, it is possible that, as Professor  Ilya Somin suggested yesterday , the non-compliance we have seen so far results from "incompetence or disorganization." But I agree with Somin that the signs...

President Trump was supposedly elected in part due to inflation under President Biden. Now Trump is trying to shutter the Consumer Financial Protection Bureau, which was formerly directed by my brilliant law school classmate, Richard Cordray, Chicago ‘86. The CFPB has limited the amount of bank check overdraft and credit card interest, facilitated people's ability to switch banks for more benefits, and prohibited numerous other fraudulent business practices. It is impossible to imagine why anyone but a banker would abolish the CFPB. It is therefore also puzzling why Americans often vote against their financial interests. The book “What’s The Matter With Kansas” suggests cultural wedge issues actually get the conservative votes. Then there is the famous saying that “nobody ever lost money underestimating the intelligence of the American public.” Yet I think many Americans just vote for the "change" candidate, even if the candidate lies repeatedly. Studies also show that ...

Last week, Donald Trump signed an Executive Order  with the provocative title "Keeping Men Out Of Women's Sports." It aims to bar transgender girls and women from participating in girls' and women's sports at federally funded educational institutions (which is to say just about every school in the country). Here's a summary of the main provisions of what I'll call the Anti-Trans Executive Order or ATEO: (1) The ATEO  uses a backdoor mechanism to rescind a Biden Administration regulation that had construed Title IX to, among other things, forbid covered institutions from discriminating (or permitting harassment) based on gender identity. It does so by asserting that the government will comply with a  ruling by a federal district judge in Kentucky in a case brought by the states of Tennessee, Ohio, Indiana, Kentucky, Virginia, and West Virginia . That ruling vacated the Biden Administration reg under a somewhat controversial vacatur power in cases brought ...

The title of this column is intended to be a bit cheeky, but the point is a serious one.  Republicans have long said that they hate government -- and in particular the federal government -- because they are certain that it is inherently and deeply wasteful.  Their talking points are frequently aimed at "lazy bureaucrats," and they love to tell everyone how terrible government employees are.  As one of a zillion examples, they have always attempted to justify their insanity over the debt ceiling by invoking made-up nonsense like the so-called Boehner rule (every one-dollar increase in the debt ceiling must be accompanied by two dollars in annual spending reductions), all based on the fervent and unchallenged belief that the government is wasting "your" money. Indeed, to hear Republicans tell it, the government is not merely a bunch of human sponges doing nothing while drawing fat salaries that they do not deserve.  In their view, government workers not only waste mon...

If you like a good economic calamity, you will absolutely love what the Musk-Trump Administration has in store!  Yes, I finally have an excuse to write again as a pure econ wonk, and it makes me feel strangely tingly inside to be able to describe something that is so obviously horrible and that seems not to be getting any attention. To be honest, however, I am not entirely limiting myself to economic analysis here.  Before getting to Elon Musk's specific insanity, we should first take a step back and ask how much damage will happen in the new Trump era no matter who happens to be installed in any particular position (official or unofficial) in the Trump orbit. This is similar to asking back in 2018 what the true stakes were when the Senate was about to vote on Brett Kavanaugh's nomination to the Supreme Court.  Even though there were very good reasons to oppose his confirmation, everyone knew that his defeat was not going to change the bottom line, because there were ple...

The U.S. Supreme Court’s reputation is like the situation comedy, Night Court. There is chaos. But it’s not funny. This blog post argues that pragmatism, plus the other tools of interpretation, gets the Court closest to the best case decision. Recent contradictory originalist decisions are problematic. The Court in United States v. Rahimi moved away from its rigid originalism in New York State Rifle Association v. Bruen . Justice Barrett and Justice Thomas clashed in Rahimi , with Barrett taking the more flexible approach. Indeed, the Court must do something given its declining reputation. Then there are situations where women have died under the Court’s new abortion doctrine. After 30 years clerking, teaching, and practicing in constitutional law, I believe the closest the Court can come to a good result is to adopt a two-stage practical method. At stage one, the Court would examine modalities like text, precedent, originalism, structure, ethics, and more. But at stage two, the Court...

Tariffs were never going to be the magic wand that Donald Trump believes them to be--capable of super-charging domestic manufacturing and  raising enough revenue to offset substantial tax cuts elsewhere, but in the first two and a half weeks of the second Trump administration, we have mostly seen Trump use tariffs for a different reason: to bully other countries into acquiescing in Trump's demands regarding the movement of undocumented immigrants and illegal drugs into the United States. To be sure, even with respect to that aim, it is not clear that tariffs are effective. For example, the centerpiece of the deal that Canada struck to delay the 25% tariffs on most goods (and 10% on oil) for 30 days was a commitment by Canada to take measures that our neighbor to the north was already planning to take. Something similar seems to be true of the deal with Mexico. But that's probably sufficient for Trump, who cares much more about appearing to "win" concessions than abou...

Could You Convince Donald Trump You're a U.S. Citizen? by Jacob Hamburger One of Donald Trump’s first acts in his second term was to issue an executive order denying citizenship to children born in the United States to undocumented parents. Since the Supreme Court’s 1898 decision in United States v. Wong Kim Ark , the established view has been that the Fourteenth Amendment guarantees citizenship to every person born within the country’s territorial limits, with minor exceptions for children of diplomats and invading soldiers. Federal immigration statutes have also been drafted against this constitutional backdrop. Trump’s order nonetheless sought to fulfill a longstanding promise on the right to end this rule of near-universal birthright citizenship. The administration is now seeking to defend the order against no fewer than four separate legal challenges, and a federal judge has issued a temporary restraining order against its implementation. I will not attempt to rehash here wh...

Last week I sent out a lengthy article to the law reviews arguing that the Roberts Court, the most self-identifying "originalist" Supreme Court in American history, has in fact, and ironically, killed originalism. This blog post is a summary of the arguments I present in that piece. A majority of Roberts Court justices self-identify as either strong or moderate originalists at the same time as conservative legal scholars and pundits are praising the Robert’s Court’s adoption of originalism as the proper method to resolve our country’s most important cases. However, for almost twenty years, the Roberts Court has consistently changed constitutional law in non-originalist, anti-historical directions to be more consistent with the GOP’s modern agenda than the values of the Founding Fathers. In other words, in the hands of the Roberts Court, originalism amounts to nothing more than virtue signaling and camouflage. This disconnect between how the justices say they are deciding co...