Dorf on Law

by Michael C. Dorf Per my custom this time of year, I provide below my Federal Courts exam. I apologized to my students that it is not as funny as some of my prior ones, although I think the issues it raises are just as challenging and important as those raised by prior exams.  I did not have the urge this time to create a fake Trump tweet. Students were given 8 hours to complete the open-book take-home exam. As usual, blog readers should feel free to submit answers (which I won't grade) in the comments.

Note to readers: This is the first of this year's "classic" columns, i.e., an opportunity for Dorf on Law to take a break for the holidays while giving interested readers an opportunity to read some of our favorite recent columns.  This piece was first published on January 27, 2017, a week into Donald Trump's presidency.  Although I believe that it holds up rather well, I will note that the sixth paragraph includes this: " More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp."   Hmmm.  How well has that optimistic belief held up?  In any case, enjoy!   by Neil H. Buchanan There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters. If only these jo...

by Michael C. Dorf For many years, I cheerily wished my Christian friends a "merry Christmas." I'm Jewish but from childhood I had happy associations with Christmas and other events Christians celebrated. Each year, my family helped our Unitarian neighbors trim their tree. On Christmas Day itself, we typically joined our Armenian Apostolic family friends for a festive meal. And I attended the first Communion and Confirmation of a close childhood friend who was Catholic (as he attended my Bar Mitzvah). Saying "merry Christmas" to my Christian friends was for years simply automatic--a way of acknowledging that in a country blessed with religious freedom, there was nothing remotely uncomfortable, much less political, about extending good wishes to one's friends and neighbors on occasions that they deem significant, even if those occasions hold no special religious significance for me. It didn't occur to me not to wish a friend "happy birthday"...

By Eric Segall As we leave this decade, I thought it might be interesting to look back over the last ten years and highlight the Supreme Court's five (okay six) most important constitutional law cases. My criteria are my own subjective assessments concerning the decisions' impact on the people of the United States and the development or reversal of constitutional law doctrine.

by Michael C. Dorf The title of today's post, "Scientia Bona Est," is the Latin translation of "Knowledge is Good," the motto of Faber College, the fictional setting for the great 1978 film Animal House . It might have inspired the people working for federal Immigration and Customs Enforcement (ICE), who created the fake University of Farmington to lure would-be immigration fraudsters. U of F's motto? Scientia et Labor  or "Knowledge and Work." Here 's what the university website looked like before ICE deactivated it. As explained at length in the  WaPo  story linked above, ICE created the fake university in order to lure non-citizens seeking to overstay student visas as a means of circumventing US immigration laws.  Because U of F had no real classes or faculty or anything else, presumably students who enrolled would quickly realize that it was a scam but assume that the target of the scam was the federal government: Students paid U of F t...

by Neil H. Buchanan During the upcoming two weeks that include Christmas and New Year's Day, Dorf on Law  will be on partial vacation, with plans for new posts by Professor Dorf tomorrow and Monday of next week but after that, unless something very big happens (certainly a possibility), we expect to post only "classic" posts, if anything.  This is, therefore, likely to be my last new column of the year. With that in mind, I decided to announce the much-coveted Buchanan endorsement for President of the United States. Side note: Yes, I'm being self-deprecatingly ironic.  When I was much younger, I wanted to be a "cool" professor and told my students to call me by my first name; but if they could not bring themselves to do that, I said, "you must call me 'Lord High Professor Doctor Buchanan, Sir.'"  I later overheard one student saying to another, "Can you believe the ego on that guy, telling us to call him that?"  Irony is los...

by Michael C. Dorf Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election. In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to p...

by Neil H. Buchanan Now that the Senate Republicans have made it clear that they have no intention of running an honest trial of the impeachment of Donald Trump that the House will soon approve, non-Republicans and NeverTrumpers alike are trying to figure out what to do next.  The problem, of course, is that the Constitution is not self-enforcing; and even if it were, it is being exposed as hopelessly inadequate to the current task. Take the bare language of the two procedural impeachment clauses.  The last clause of Article I , Section 2 reads in full: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The last clause of Article I , Section 3 reads in full: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be c...

By Eric Segall If you are worried about the state of our political system in the age of Facebook advertising, Russian interference in our elections, dark money in politics, and President Trump’s Twitter account, among many other disturbing trends, Professor Ciara Torres-Spelliscy’s wonderful new book “Political Brands” is unlikely to make you feel any better. However, it will make you much better informed regarding the many threats facing American democracy. I strongly recommend this book to anyone interested in how Madison Avenue and political movements have merged to present new and unique risks to our representative, constitutional democracy.

by Neil H. Buchanan Both The New York Times  and The Washington Post , as of this writing, are running front-page articles that claim that the impeachment process will be good for Donald Trump in next year's election.  Both stories, however, are notably weak when trying to back up that point (and do not even really try). The Times 's  article merely says that Trump himself "thinks that it will help him on the campaign trail " (and the embedded link takes readers to an earlier  Times  article that says that Trump thinks impeachment will help him).  More interestingly, the story ends with a prediction, noting that "Mr. Trump’s advisers worry about ... the snapback of his anger once the impeachment process is over. They predict he will be furious, and looking for payback."  The invertebrate Lindsey Graham reportedly told Trump not to do that, apparently because it would be bad for his election, so even the most craven Republicans do not think this is...