Dorf on Law

by Michael C. Dorf Donald Trump's tweet in response to the testimony of Lieutenant Colonel Alexander S. Vindman on Tuesday was despicable; yet remarkably, it was not nearly as outrageous as comments by Trump-friendly talking heads. Below I'll connect the smear by former Congressman Sean Duffy, FoxNews host Brian Kilmeade and others to controversy over statements by Congresswoman Ilhan Omar as well as to the nature of partisanship in our current era.

by Michael C. Dorf My latest Verdict column discusses a brief eruption of the progressive Internet last week in response to the false claim that Pete Buttigieg announced that he would seek to name justices like Anthony Kennedy to the SCOTUS. As I explain in the column and as I also explained in a Twitter thread (which you can read "unrolled" here ) last week, that's not what happened. Rather, Buttigieg mentioned Kennedy in the context of his explanation of a proposal to depoliticize the Supreme Court. My Verdict column first criticizes the Buttigieg critics who jumped on him without bothering to read what he actually said; it then pivots to criticize Buttigieg's goal of depoliticizing the Court. I explain that the Court has pretty much always been political and that to the extent that it is now more clearly embroiled in partisan politics than in some other periods, the problem is not the appointments process but polarization in Congress. Here I want to return to...

by Neil H. Buchanan One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter. Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's  infamous reference  to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me . As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also sh...

by Michael C. Dorf It is difficult to know how to regard the news that US special forces killed ISIS leader Abu Bakr al-Baghdadi. The killing of Osama bin Laden in 2011 did seem to diminish the power and reach of of Al-Qaeda. Perhaps al-Baghdadi's death will bring similar benefits. However, there are reasons to worry. Al-Qaeda was already a weakened institution when bin Laden was killed. Moreover, it had begun to transform into a kind of franchising operation. In this respect, it is useful to remember that ISIS is a lineal descendant of Al-Qaeda in Iraq. Its initial leader, Abu Musab al-Zarqawi, pledged his loyalty to Bin Laden and was then killed by US forces in Iraq in 2006. The US killed successor leaders before al-Baghdadi emerged and transformed Al Qaeda in Iraq into ISIS. So maybe the killing of Bin Laden wasn't especially effective after all. And difficult as it is to imagine, maybe someone as bad as al-Baghdadi will soon emerge. Put differently, terrorist organiz...

By Eric Segall On Wednesday, Professor Lawrence Solum kindly "recommended"  a forthcoming essay  of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument: I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And ...

by Neil H. Buchanan Last Sunday, the editorial board of The Washington Post  asked what they surely thought was an utterly reasonable question: "There’s an effective and progressive solution for climate change. Why won’t Democrats embrace it?"  The "effective and progressive solution" that enthralls them is a carbon tax.  The lack of self-awareness revealed by their question made my jaw drop. These editors, after all, are the very same people who have spent the last year or so gleefully joining in on the baseless attacks on Medicare-for-All by saying that such plans would "raise taxes."  As my most recent Verdict  column (and, to a lesser extent, my most recent Dorf on Law  piece ) explained at great length, this is utterly bonkers.  Whatever else one thinks about Medicare-for-All or about Senator Elizabeth Warren, she is absolutely right that the labeling debate about health care costs is a political trap. Why? As I said last week: "[S]h...

by Michael C. Dorf Today I shall have the pleasure of debating Prof Josh Blackman on the challenge to Obamacare now pending before the Fifth Circuit. Prof Blackman and I recently agreed with one another about amicus briefs in the SCOTUS (me here and him here ). Today, I suspect we'll disagree--and not just because the event is billed as a debate. The Cornell Law School chapter of the Federalist Society is sponsoring the event, and I know from past experience that Fed Soc likes to promote its events as "debates," even when a term like "discussion" would be more accurate, because debates attract a larger audience than discussions. Accordingly, I have sometimes found myself announced as debating some speaker only to end up agreeing with most of what the speaker says. But this time I suspect we will find plenty about which to disagree (though not disagreeably, of course). Below I preview my argument, which leans heavily on the House reply brief  in the pendin...

by Michael C. Dorf On Thursday of last week, the Supreme Court issued official guidance regarding the filing of amicus briefs. Most of it simply collects what's already in Supreme Court Rule 37, but even so it's useful. For a summary of the guidance (which is itself pretty short), here's a helpful article on Bloomberg. I'll offer some critical thoughts on a couple of points: (1) party consent; and (2) colors.

by Michael C. Dorf Numerous commentators (including yours truly ) have condemned President Trump's precipitous withdrawal of US forces from northern Syria as a betrayal of our erstwhile Kurdish allies. It was and remains such a betrayal. Despite yesterday's announcement of a 5-day "pause" in operations--which was predictably and inaccurately hyped by Trump as a "great" deal that resulted from his "tough love"--Turkey apparently has no current plans to withdraw forces from its self-declared "safe zone" in northern Syria. Thus, Turkey's incursion leaves alive the possibility of clashes between Turkish and Syrian and/or Russian troops. Such clashes in turn might result in a call for NATO involvement. Suppose Syria crosses the border and counterattacks. Suppose Russia, which has troops stationed in Syria about 20 miles south of the Turkish border, assists in such a counterattack. Would that constitute an "armed attack" under...

by Neil H. Buchanan Pete Buttigieg, it turns out, is a bit of a dick.  This was not supposed to be his brand.  He presented himself to the world as a thoughtful, modest uniter with Midwestern quietude and restraint who would move our politics forward -- the avatar of a new generation of people who have had enough of the old ways of doing things.  We wanted to like him.   I certainly wanted to like him. Apparently, however, Buttigieg decided that this was no longer working.  It seems that his initial success in moving into the second tier of candidates who might  break through -- not among the Three Septuagenarians leading the pack, but also clearly in a different category from Cory Booker and Amy Klobuchar -- gave him a taste for more.  Unfortunately for him, his boomlet ran its course as he faded out of double digits in national polls and has been muddling along in a land where people assume his future is as a Vice Presidential pick. How to...