Dorf on Law

In the midst of all of the horrible things that are happening in the world, it is almost quaint to notice that the federal government of the United States is on the brink of yet another semi-shutdown -- where "semi" refers to the fact that "essential workers" are required by law to keep the government partially open, even when they are not being paid.  Notwithstanding that qualification, I will continue to follow the established practice of calling such an event a government shutdown. Shutdowns used to be exceedingly rare, but because the world stopped making sense years ago, here we are again.  The current law funding the federal government will expire in 14 days, and we have no idea what will happen next. For what my opinion might be worth, I agree with those who are telling congressional Democrats not to bend on this one, even if it means that the government goes into another of the shutdowns that we have all been forced to endure in recent years.  And to addre...

Earlier this year, I was honored to deliver the Dyson Distinguished Lecture at Pace University . My invitation arrived before the second Trump administration's all-out assault on constitutional democracy, and so I chose a topic that one might more closely associate with normal constitutional law than with the ongoing crisis in which we find ourselves. I addressed the possibility that recent Supreme Court cases had shrunken--perhaps to nothing--the domain of "play in the joints" between what the Free Exercise Clause of the First Amendment requires and what its Establishment Clause forbids. The lecture I delivered in February has now been published as an Essay in the UC Davis Law Review Online . For those readers too busy to click over to the link just supplied, here is the abstract: Recent Supreme Court cases call into question the longstanding principle that the Free Exercise and Establishment Clauses should be construed to permit “play in the joints” between what the for...

At the top of his show last night, Stephen Colbert said this : Folks, the country is still shocked and horrified by yesterday's assassination of conservative activist Charlie Kirk.  However you feel about his politics, he was a young father of two small children, and an American who has the constitutional right to express his  opinion  in safety.  It should go without saying that violence is never the answer to political disagreement, but I think these days, it should be said as often as possible. Although I do not question Colbert's humane intent, and I fully agree with his call for nonviolence, the last twelve words of his statement -- "I think these days, it should be said as often as possible" -- strike me as at least arguably misplaced.  While one might think that it could never be the  wrong  time to call for nonviolent political discourse, I think it very much matters whether what just happened was in fact politically motivated violence; because...

In Marbury v. Madison , one of the most important cases ever decided by the Supreme Court, Chief Justice John Marshall made at least three major mistakes. He decided a case in which he and his brother played a central role in the facts; he made up a statute that didn't exist so that he could solidify for the court the power of judicial review; and he decided the merits of the case before he decided jurisdiction, which he found was lacking. Constitutional law was not off to a great start. But he also wrote one of the most important passages in American jurisprudence, which we should all accept as an important aspiration: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.... I t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that r...

On Monday, in Noem v. Vasquez Perdomo , the Supreme Court stayed a district court injunction that had limited the ability of ICE to engage in racial profiling in Los Angeles. As has become increasingly common in SCOTUS emergency docket decisions granting stays of injunctions against the Trump administration, the brief  per curiam order gave no reasons for the decision. However, Justice Kavanaugh wrote a concurrence explaining his reasons for voting for the stay. They are so bad that the majority would have been better off if its order had gone completely unexplained. Justice Kavanaugh thought the plaintiffs were unlikely to be able to establish standing for an injunction. He also thought that they were unlikely to be establish a Fourth Amendment violation. And he thought that the balance of the harms and equities favored the government. I'll say a few words about each, concluding with some thoughts on Justice Kavanaugh's suggestion that victims of ICE abuse can pursue damages a...

Academia has been forced to play one of the leading roles in the Trump administration's war on the key institutions of society and on the rule of law more broadly.  Other aspects of the Trumpian strategy of deliberately creating chaos have been more directly damaging to human lives -- dismantling USAID, handing American public health agencies over to the anti-science lunatics, rounding up people in a now-Supreme Court-approved strategy of open racial profiling, and on and on -- but the assault on academia has been relentless and pointed. One of the MAGA strategies has been to make it difficult and even dangerous for foreign scholars and students to show up at the US border, with prominent stories of professors being turned away upon arrival at US airports, along with denials and delays of student visas as part of a strategy to punish Harvard in particular.  But although I would like to be able to say that American scholars are responding as effectively as possible t...