Dorf on Law

by Michael C. Dorf ( cross-posted on Take Care ) As I noted last week , tomorrow I'll be spending the day joining a great collection of law professors, lawyers, one journalist, and one judge to talk about the most recent SCOTUS term and preview the coming one. In last week's post I previewed my remarks on a case at the intersection of the dormant commerce clause and the 21st amendment . I also promised that I would follow up with two more posts: one on the Term in general and the other with some additional commentary on one of the Term's blockbusters for which I also will be providing an overview at the PLI conference: the Bladensburg Peace Cross Establishment Clause case . I'm going to break that promise (kinda) by talking about both in today's post. But first, a reminder: You can still sign up to see the day-long event live in NYC, at one of various satellite locations, or from the comfort of your computer. Here's an alphabetical list of the panelists: Jo...

by Neil H. Buchanan When Anthony Kennedy was still on the bench, and especially in his final term, the Supreme Court issued many horrible decisions.  Citizens United: Shelby County v. Holder ; the anti-union case in 2018 ( Janus ); the Ohio voter purge case ( Husted v. Randolph Institute ); Masterpiece Cakeshop .  The list is a long one. One of the Court's worst decisions in decades, of course, was the Muslim Travel Ban case ( Trump v. Hawai'i ), which is widely and rightly considered to be this generation's Karematsu -- a description so apt that John Roberts felt compelled to include in his opinion a doth-protest-too-much section that essentially said: "We're not issuing a new Korematsu .  See, we're explicitly admitting decades later that Korematsu itself was a bad decision.  How dare you say that our new case is like that other case ... that we have now disavowed?!" What made the Muslim Travel Ban case egregious as a legal matter was its tortur...

By Eric Segall Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors. In their essay, Rappaport and McGinnis try to bring the warring sides to the table and closure to this debate. According to the authors, both sides believe that the meaning of the constitutional text is fixed at ratification, but they "diverge sharply on the object of their interpretation."  Those who believe in original intent think it is the enactors' subjective intentions that matter while those who favor the original public meaning approach believe that constitutional interpretation should be guided by the meaning of the text as "reasonably und...

by Michael C. Dorf **Updated and corrected Friday's Supreme Court order permitting the Trump administration to begin construction on a border wall using funds that were appropriated by Congress for other purposes was not exactly a ruling on the merits. Nonetheless, if one follows the clues in Justice Breyer's separate opinion, it becomes apparent that five justices have tacitly accepted Trump's absurd claim that the situation at the southern border addresses "unforeseen military requirements." That language appears in the 2019 military appropriation act that the government relied upon to shift funds to border wall funding. The government's argument parallels the equally absurd claim that the declaration of "a national emergency . . . that requires use of the armed forces" (as required  by another statute ) authorizes the freeing up of other funds to build the border wall. Below I explain why the Court's order might reflect a favorable vie...

by Neil H. Buchanan Yesterday, I published my annual veganniversary column here on Dorf on Law : " Veganism, Year Eleven: Capitalism and Freedom ."  In it, I offered my standard update on what it is like to live as a vegan, noting that "veganism is ascendant" in the sense that in the first-world places that I frequent, the food industry is enthusiastically responding to market demand for better and wider vegan choices. I then noted that this virtuous cycle -- better vegan products encourage more people to eat vegan food (even people who do not self-identify as fully vegan), which encourages more restaurants and food stores to supply better vegan options, which encourages still more people to eat vegan food, and so on -- is one of the best arguments available in favor of capitalism properly understood.  That is, if capitalism is the system by which demand and supply interact in ways that are superior to central planning -- put differently, if Adam Smith's inv...

by Neil H. Buchanan Yesterday was the eleventh anniversary of my becoming a vegan -- my veganniversary, as I still insist on calling it -- making today's column the first opportunity to offer my annual musings on all things vegan.  (Interested readers with time on their hands might want to read one or more previous veganniversary columns: 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original announcement in 2008 .  In my excitement in 2008, I also wrote a followup column a week later.) I will divide my thoughts today into two categories.  First, I will offer some very anecdotal observations about living as a vegan in a world where attitudes about veganism are becoming interestingly complicated.  Second, I will use the increasing availability of vegan foods in mainstream stores and restaurants to make a point about why I am happy to call myself a capitalist in the way that Senator Elizabeth Warren calls herself a capitalist -- an...

by Michael C. Dorf In my latest Verdict column , I criticize what I dub the Trump administration's new "Apply in Guatemala or Mexico" rule barring migrants who arrive at the US-Mexico border from seeking asylum here if they did not previously seek asylum in a country they traversed en route. As I explain, absent a safe-third-country agreement of the sort that Guatemalan President Jimmy Morales did not enter with the US earlier this month, the policy is plainly illegal. I also argue that if such an agreement were entered, it too would be illegal, albeit not subject to judicial challenge. In this accompanying essay, I want to say a few words about asylum eligibility more broadly. As indicated by the title, I'll then suggest a troubling similarity to the tort system. The federal asylum statute was enacted to implement in domestic law the international obligations of the US under the Convention Relating to the Status of Refugees . Both domestic and international law...

by Michael C. Dorf Tomorrow's scheduled appearance of Robert Mueller before Congress will be covered breathlessly by the media but will likely be unenlightening and unimportant. I base that assessment on the following: (1) Mueller has already made clear that he does not intend to say anything that's not in his Report; (2) that rules out an answer to the one question to which his answer could possibly move the needle on public opinion--whether, absent the DOJ policy he followed barring indictment of a sitting president, Mueller would have concluded there was sufficient evidence to charge Trump with  obstruction of justice; (3) absent new revelations, which (1) forecloses, the Senate will not remove Trump even if the House were to proceed to impeach him; and therefore (4) the public hearing holds substantial risks for Democrats. After explaining the logic of (1) - (4), I'll suggest that (5) Democrats can mitigate those risks and maybe even benefit by playing their cards r...

by Michael C. Dorf On Thursday of next week, I shall participate (as I have since its inception two decades ago) in the annual Practicing Law Institute Supreme Court Review . As always, it's a star-studded cast. Tickets for the live full-day panel, whether in-person in NYC, at a groupcast location, or via your computer, are still available. (I don't get a cut of the door; we panelists all volunteer our time.) I'll be on just about all of the panels, mostly discussing cases that I've blogged or written Verdict columns about already, but invariably something falls through the cracks. Accordingly, today's entry discusses a case that involved the intersection of the 21st Amendment and the Dormant Commerce Clause. In the next two installments of my preview of the Review, I'll say something about the Establishment Clause case involving the "Bladensburg Peace Cross" (beyond what I wrote here  and here ), and I'll also provide my take on the Term as a...

by Anne M. Voigts The difficulty in writing about the life of someone like Justice John Paul Stevens is in knowing where to start.  He led an exceptionally full life, and those of us who were lucky to share some part of that life for one Supreme Court term were in awe of his energy, and kindness, and humility (if not his notoriously spartan lunches). Others will write about his opinions in cases like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or Bush v. Gore, but one far less prominent case embodies his fundamental decency and compassion.