Dorf on Law

by Michael Dorf Leaks from the Trump White House indicate either that President Trump has decided to withdraw the United States from the Paris climate agreement or that he is nearing but still has not made a final decision. Many informed observers think it doesn't really matter . Even if Trump does not formally withdraw (either from the Paris accord or the entire UN framework), his Coal First environmental policy will ensure that the United States does not meet its targets under the Paris agreement anyway, with some environmentalists arguing that so long as the U.S. is going to miss its targets, the rest of the world is better off with the U.S. out of the agreement, so that our example does not water down the meaning of the commitment for other countries. Debate over whether the world is better if we stay in or get out and the game-show-style interest that Trump (in typical Trumpian fashion) has generated regarding his BIG DECISION should not obscure two basic facts: (1) The T...

by Michael Dorf My latest Verdict column discusses the First Amendment implications of the Montana special election. By electing a man who had just body-slammed a reporter for asking a question, did Montana  voters threaten freedom of the press? I explain that while of course there are no direct First Amendment issues raised by the incident (because a candidate for office is not a government actor and the First Amendment only restricts the government), all of our constitutional rights ultimately depend on social acceptance, and the incident--in combination with others, especially those connected to President Trump--thus poses a long-term danger for a free press. Here I want to propose a relatively modest legal response to that danger: State and federal laws should be amended to provide for penalty enhancements when otherwise criminal conduct is directed at reporters on account of their attempts to ask questions or otherwise do their job.

by Neil H. Buchanan Will Donald Trump be impeached?  It is still too early to tell, of course, but given the pace at which damaging disclosures are coming forth, no one should assume that it will not happen. What we do know without question is that the Republicans in Congress would have impeached and voted to convict Barack Obama, Hillary Clinton, or any other Democrat for doing anything even close to what we now know -- from his own tweets and other statements -- that Donald Trump has done. But that merely tells us that Republicans are in a bind.  Only a bit of one, however, because such shameless inconsistency only matters to people who have shame, which almost all of these Republicans have repeatedly shown that they lack.  Even those who are perfectly willing to apply different standards to presidents on the basis of partisanship, however, might have their limits. So the question is: What might be enough to convince a House Republican to impeach, or a Republica...

by Michael Dorf On this Memorial Day, I remember and honor those who gave their lives in the service of our country. I'm taking the day off from blogging. If you're looking for something to read, I suggest this DoL "classic" from Memorial Day 2011 . Re-reading it, I was struck by both how little has changed and how much has changed. We are still trying to extricate ourselves from largely counterproductive wars in the Middle East without leaving behind a still-worse situation. But whereas the contradictions in the Obama policy were mostly a product of conflicting sensible goals, the contradictions in the Trump approach (which hardly rises to the level of "policy") are, in addition, the nearly random product of Trump's ignorance and massive but fragile ego.

by Neil H. Buchanan The release of the Trump Administration's proposed federal budget has been met with mockery and ridicule across the political spectrum.  All budgets are "dead on arrival," but Trump's budgets stands out for its dishonesty, incompetence, and inhumanity. Even though most Republicans have been running away from Trump's budget (although they continue to support him in the face of evidence of impeachable offenses), this budget falls into the category of what Michael Dorf once described as "Trump as GOP on truth serum," where Trump is merely saying out loud what Republicans have not yet dared to say. My initial reaction to Trump's budget, in fact, was that it fully explains why House Speaker Paul Ryan has continued to support a man whom Ryan so clearly despises.  Ryan has spent his career trying to look concerned while crafting reverse-Robin Hood policies.  Trump's budget proposal will allow Ryan to look comparatively humane...

by Michael Dorf The scene of the lavish reception that greeted President Trump in Saudi Arabia was arresting to say the least. The Saudi royal family (literally) rolled out the red carpet, treating Muslim-bashing Trump as a hero. While the speech Trump thereupon delivered was no doubt written for him before Air Force One touched down in Riyadh, anticipation of a royal welcome could well have been a factor in what went into it. Meanwhile, by kissing up to Trump, the Saudis appear to have scored a double victory on substantive matters: Trump has tilted US foreign policy decisively in favor of the Sunni side of the regional cold/hot war between Sunni and Shia forces; and Trump more or less endorsed the view of the Gulf states with respect to the Israel/Palestine conflict. This is not the first abrupt foreign policy about-face by Trump. A cordial meeting with Xi Jinping instantly turned China from a currency manipulating hostile power into a strategic partner. It appears that foreig...

by Sherry F. Colb In my column for this week , I write about the topic of jury nullification, occasioned by an episode of RadioLab  that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.

by Neil H. Buchanan Everyone is still trying to figure out what to make of the last two weeks of nonstop news about Donald Trump's unraveling presidency.  His trip abroad is generating a bit of news (including his curtsy to a Saudi ruler), but until he inevitably becomes unhinged by the rigors of travel and diplomacy, the rest of the world will have some time to digest the multitude of shocking revelations that led to the appointment of a special counsel to investigate the Trump/Russia mess. The overarching question that has generated serious political commentary is whether and when any Republicans will turn against Trump.  Until that happens, he is in no danger of being forced from the White House.  Of course, even something short of Trump's removal from office is a win for sanity, both because nonstop drama will derail the Republicans' regressive policy agenda and because it will keep Trump's supporters on the defensive in the 2018 midterm elections. Still, it...

by Michael Dorf (cross-posted on Take Care ) As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach. Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At fi...

By Eric Segall On at least three occasions over the last seven months Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). Despite these public comments by Alito, there has been a deafening silence by those who often complain when other Justices make such political statements.