Dorf on Law

  by Michael C. Dorf To qualify for discretionary adjustment of status to be able to remain in the U.S., a federal statute states that deportable non-citizens must show, among other things, that they have "been physically present in the United States for a continuous period of not less than 10 years." The same statute says that the clock stops running once the non-citizen receives "a notice to appear" containing various items of information. Because Augusto Niz-Chavez received some of that information in one mailing and the rest in another, he argued that receipt of neither mailing constituted a notice that sufficed to stop the clock, and thus he satisfied the 10-year continuous presence requirement. That argument is ridiculous. Nonetheless, six justices bought it. Yesterday, Justice Gorsuch--joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett--wrote an opinion for the Court in  Niz-Chavez v. Garland   holding that a notice to appear means a single not...

  by Neil H. Buchanan     [Note to readers: My latest Verdict column, " Will Biden Finally Neuter Republicans’ Debt Ceiling Demagoguery? " was published this morning.  This is one of those occasions where I am departing from our usual practice by writing my Dorf on Law column on a different topic entirely.  Nonetheless, I do hope that some readers here will click through and read that other piece as well.] It has become a cliche to refer to "tribalism" in American politics, a description that has become commonplace because there is a great deal of evidentiary support for it.  Because the Republican tribe has moved into such extreme territory over recent years, however, the term "cult" is unfortunately the best description of what is happening on that side of the divide. Even so, the notion of all politicians being part of one tribe or another does capture an element of political partisanship that long predates recent unpleasantness.  Even when there ...

by Michael C. Dorf On Monday the Supreme Court denied leave to Texas to file a lawsuit against California. The suit sought to challenge  California's refusal to fund or sponsor travel to states engaging in various forms of "discrimination against lesbian, gay, bisexual, and transgender people." Texas contended that in so doing, California violates the Privileges & Immunities Clause of Article IV, the dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection Clause. These claims are highly dubious, given that states acting in their proprietary capacities have much greater freedom to act than when acting as sovereign regulators. Nonetheless, the Court's denial of leave occasioned a dissent by Justice Alito , joined by Justice Thomas. That dissent expressed no view on the merits but instead repeated their previously expressed claim that the Supreme Court lacks discretion to decline to hear state-versus-state cases that fall within its original jur...

by Neil H. Buchanan   They are still counting ballots in the 2020 U.S. presidential election.  Correction: They are still re counting some ballots, the "they" in this case being Arizona's Republican state senate, using a completely opaque process run by a private contractor with no experience in auditing elections (and run by a man who has been pushing conspiracy theories of the "stop the steal" variety).  Oh, also, Arizona's votes have already been recounted multiple times, and the voting machines have been tested and found to have worked flawlessly. This will all play out in a very predictable way: The not-really-auditors will announce with some degree of confidence (most likely absolute certainty) that the vote count was wrong or questionable, the losing candidate will then claim that this was true in at least six states, and Republicans nationwide will thereafter further intensify their efforts to suppress votes and allow themselves to take control ove...

By Eric Segall Last week was an interesting month. I lived through many of the things that make my job so rewarding and so frustrating all at the same time.  Monday : I have this little podcast called Supreme Myth s which I started during Covid-19 because I was feeling so detached from my friends and colleagues outside Atlanta. My guest last week was New York Times reporter Emily Bazelon, whom I have long admired for her sharp and entertaining views on the Supreme Court. She did not disappoint. We talked about law and politics, legal realism, mass incarceration, and at the end the rumors of Justice Barrett's $2 million book deal in which book, according to the internet , she is going to talk about how judges should leave their feelings behind when deciding cases. Sigh. Emily made the clever observation that Justice Gorsuch, who also wrote a book shortly after being appointed to the Court, did not make anywhere near that much money, and she wondered how he was feeling about that. Sp...

by Michael C. Dorf At the height of the racial justice protests last summer, many activists were demanding that states and localities "defund the police." Although that phrase has no universally agreed upon meaning, virtually no proponents of defunding the police advocate anarchy. Rather, they would shift many of the responsibilities now undertaken by armed police officers to unarmed social workers and others. They would also decriminalize (or in some jurisdictions, further decriminalize) drugs and various other matters, in keeping with a broader program of reducing the role of the carceral state while increasing social support for neglected communities. None of these ideas is especially radical or even very new. For example, twenty years ago, Prof Colb proposed eliminating traffic stops for minor offenses as a means of limiting both racial profiling and the opportunities for deadly police/civilian confrontations. The movement for drug decriminalization is even older. So are...

by Neil H. Buchanan   After a cataclysm, there is an understandable urge to return to whatever felt like normal in the before-times.  Unfortunately, some of those normal things were bad habits to which we should not want to return.  Although I could be talking about how people will act in a post-pandemic world, I am instead thinking about the post-Trump-cataclysm world of politics and commentary. In both the pandemic and during Trump's time in Washington, people do/did things that they were absolutely unhappy about doing.  No one wants  to wear masks and social distance, to stop taking trips or going out to eat.  Perhaps a few people do not mind or are not affected by any of that, but certainly millions upon millions of people do things differently, because the threat to the world is too great.   For a much smaller number of people, the Trump presidency caused them to do things that they never could have imagined.  Journalists were calling lies l...

by Neil H. Buchanan We no longer see as much of the "Democrats in disarray" trope in U.S. political discussion, and for good reason.  Paul Krugman goes so far as to assert that Democrats are "a party that is far more comfortable in its own skin than it was a dozen years ago."  One might even describe them as -- what word am I searching for? -- confident .   True, the latest media trope (especially in Washington Post headlines) is "Some Democrats worry that ____," where the blank is variously "... their current popularity might not last," or "... the Republicans' attack lines might stick," or whatever; but that is merely because certain reporters and editors are addicted to painting Democrats as perpetually in a defensive posture.  It is an assumption supported by decades of reality, but it is still dreary and lazy in the current environment. Not entirely, however.  After all, even though Democrats have been remarkably unified so ...

  by Michael C. Dorf There are a great many things wrong with the Sixth Circuit's recent en banc opinion in Pre-Term Cleveland v. McCloud , which rejected a facial challenge to an Ohio law forbidding doctors from knowingly performing abortions on women who have decided to have the abortion based on a Down syndrome diagnosis. The lead opinion by Judge Batchelder concludes that the law doesn't burden the abortion right recognized in Roe and preserved by Casey, Whole Woman's Health , and June Medical --even for women seeking pre-viability abortions -- because the woman can still obtain one, even on the basis of a Down diagnosis, by not revealing her reason to her doctor. Three separate concurring opinions tendentiously describe the Ohio law as combating "eugenics." As Professor Colb explained on the blog last week, the use of that term is offensive; the express comparison to the Holocaust drawn by Judge Griffin is disgusting. I don't have anything to add about t...

By Eric Segall The Supreme Court of the United States plays much too large a role in our nation's politics. The validity of varying state and federal laws on abortion, gun control, campaign finance reform, affirmative action, and numerous other social, political, educational, and economic issues should not be determined by a majority of unelected judges sitting in the nation's Capitol. This institution we call a Court (which isn't one) is unique in all the world and is emphatically not the court the framers thought they were creating. The most important piece of Founding-era history on the nature of the Court was written by Alexander Hamilton who in Federalist 78 said, among other things, the following: The courts were designed to be an intermediate body between the people and the  legislature, in order, among other things, to keep the latter within the limits assigned to their authority... It therefore belongs to them to ascertain [the Constitution's] meaning, as well...