Dorf on Law

  by Michael C. Dorf When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond  the authority Congress had delegated  to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in  Terkel v. CDC , even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule. That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

  by Michael C. Dorf In an important essay  earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice . Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death. Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the...

by Neil H. Buchanan   Donald Trump left office without pardoning himself, surprising many people -- certainly including me .  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.   Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket. ...

by Neil H. Buchanan At this point, it appears that most homes and businesses in Texas have at long last had their electric power restored.  If any are still without service, they are in the second week of living in 18th Century conditions, which millions upon millions of Texans experienced for many days last week.  And even now, houses with electric power restored do not have running water, with plumbers working day and night to work through waiting lists that run into the thousands (per plumber). In a column last week, I noted how quickly life becomes truly elemental when the foundations of modern living disappear.  Being thrust into a feral life is jarring, and humans understandably have psychological safety mechanisms that allow us to forget very quickly how awful things felt while we were waiting for normal life to return.  And as I pointed out, even when a power outage is relatively short, the temptation to say that it was "only 10 hours" or "only two days" m...

by Michael C. Dorf The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded. That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons. Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said  too much , and thereby  changed the underlyin...

 by Diane Klein Noted public intellectual, best-selling author, and co-chair of Bernie Sanders' presidential campaign Cornel West is threatening to leave Harvard, for a second time .  He has stated that "the administration disrespected him by denying his request to be considered for tenure."  A statement like this was crafted carefully, and it has to be read carefully.  First of all, West has not been denied  tenure.  It would appear that he was turned down after requesting "to be considered for tenure."  Why would he have to make such a request? Presumably, because he holds a position that is not eligible for tenure.  Is turning him down a sign of "disrespect," as he claims?  Or did West voluntarily accept a position that was ineligible for tenure - only to complain a few years later that Harvard refused to consider him for a status that was never part of the job? And why does it make such a difference?

by Neil H. Buchanan   The crisis in Texas this week is causing misery on a vast scale.  People who rely on electrical devices to keep themselves alive are not able to recharge batteries.  Hospitals have been without power or water for days.  People are being forced to live in group settings with strangers during a pandemic -- where such options are even available -- simply in order to survive.  Some are sitting in sub-freezing homes, trying not to die of hypothermia.  Not all are succeeding. My worst personal experiences with power outages have been two 3-day disruptions during winter storms, but in each case the weather dramatically improved while I was without power.  Also, because the outages were spotty and not region-wide, the only question was whether I would need to drive two towns over to get a hot meal from a restaurant.  Nonetheless, it was amazing how quickly life could change, where even sitting in a house that is 50 degrees Fahrenhei...

  by Michael C. Dorf The ongoing crisis in Texas and other states that have experienced atypically wintry weather is first and foremost a humanitarian challenge for the people affected. I feel nothing but concern for those suffering from cold, power outages, unsafe drinking water, and the associated ills. I urge readers who share that concern to donate to one or more relief organizations providing direct aid. I also hope that no one will mistake the following analysis of legal issues raised by one aspect of the response to the crisis for callousness or insensitivity. As was widely reported , yesterday Texas Governor Greg Abbott ordered that natural gas slated for delivery out of state be offered first to in-state power operators. In a moment I'll turn to the question that titles today's essay, but I want to begin with some procedural complexities. The story just linked refers to "a copy of Abbott’s order seen by Bloomberg" News. Likewise, a press release issued by G...

  by Michael C. Dorf After an assault on the democratic order, it is understandable to glorify the legal basis for that order, especially in the United States, which tends to Constitution-worship even in the best of times. Yet a moment's reflection reveals that the despicable attack on democracy by Donald J. Trump and those in the thrall of his personality cult was not merely an attack against the Constitution; it was facilitated by the Constitution's flaws. Here are some features of our Constitution that combined to enable Trump's assault: (1) The Electoral College--our byzantine system for choosing a chief executive whose current powers are better suited to one elected by plebiscite---not only distorts campaigns to focus on a handful of swing states at the expense of voters in all the others but periodically turns what should be easy-to-call election-night outcomes into nail-biters that then make contests over a relatively small number of votes consequential. Elections ...

by Neil H. Buchanan What is a technicality?  In the echo chambers of political punditry, certain words and phrases gain favor, allowing writers not to think deeply about issues even as they sound familiar notes to project seriousness.  Lately, among those who are disappointed that the Senate did not reach the two-thirds threshold to formally convict Donald Trump in the impeachment trial, the unfortunate move is to describe Republicans' dodging of the issue as hiding behind a technicality.   Aaron Blake, a Washington Post reporter, wrote that "Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional."  Similarly, Michelle Goldberg, the progressive New York Times columnist, yesterday disparaged Minority Leader Mitch McConnell for relying on the "manufactured technicality ... that a former president is 'constitutionally not eligible for conviction.'"   ...