Dorf on Law

by Michael C. Dorf The approach of debt ceiling doomsday has provided Professor Buchanan and me with further opportunities to elaborate on our "least unconstitutional option" approach. We are making some new points, but much of what we have to say now simply aims to clarify or popularize our prior academic writing--as in my recent op-ed in The Boston Globe . Today's essay will do a little of both: (1)  clarify a prior point; and (2) offer a set of new observations. In addition to our own new writings, we find that journalists have also taken an interest in our work. Sometimes they do so without contacting us, as Jamelle Bouie did, citing us in this excellent January 20 essay in the NY Times . Other journalists may cite our prior work but also wish to talk to one of us, as reporter Jeff Stein did for this Washington Post  article over the past weekend. I was very grateful to Mr. Stein for giving me the opportunity, after we talked, to review and edit the quotations he att...

by Michael C. Dorf Along with millions of other Americans, I was horrified and sickened by the police murder of Tyre Nichols. I am also somewhat in awe of his mother and family for how they have handled this devastating loss--promoting the public good even while experiencing unimaginable grief. I don't claim to have any special insight, but I also don't think it would be appropriate to say nothing about this incident. Accordingly, I offer three observations regarding: (1) traffic stops; (2) excessive force; and (3) race.

by Neil H. Buchanan The public discussion of the debt ceiling crisis is reverting to a slow burn, now that everyone (and I do mean apparently everyone ) has offered their hot take on last week's report that the US has again hit the formal debt ceiling.  That was both big news and a non-event, the former because of course it is a very big deal that Republicans have made it clear that they truly are willing to shoot the hostages this time, the latter because the real drop-dead date is not when we hit the ceiling but when Treasury exhausts the (misleadingly named and revealingly absurd ) "extraordinary measures" that a long-ago Congress made available for these situations. With the heat temporarily turned down, it seems worth taking a moment to address an issue that I mentioned briefly in a column last week : What is wrong with the possibility of "prioritization"?  Specifically, if President Biden soon finds himself on the drop-dead date without a deal to increase...

  by Michael C. Dorf Just before the new year and almost two years after the passage of the law permitting the sale of recreational marijuana in New York State ,  the first dispensary in the state opened for business  in lower Manhattan. I expect that eventually cannabis dispensaries will become fairly common in New York State, but so far the rollout has been quite slow. Meanwhile, the combination of decriminalization of possession and the dearth of legal dispensaries has led to what I imagine is at least a temporary flourishing of the illegal marijuana distribution business: increased demand from New Yorkers who might have been deterred from purchasing marijuana by the old enforcement regime will have been met by marijuana dealers operating outside the law. In the long run, however, one would expect that the illegal market will shrink once the legal market expands. How much it shrinks depends on a number of factors. Municipalities may opt out of permitting dispensar...

 By Eric Segall My Father Maurice Segall died a little over a week ago in the middle of the night in his sleep at the age of 93. Tragically, that was the only peace my father found over the last few months of his life.  His death has been very difficult for all of his family but I wanted to write this blog post because of what I saw towards the end of his life. 

by Neil H. Buchanan One of the many, many problems with the current discussion surrounding the Republicans' renewed threats to take us all hostage via the debt ceiling is that it invites everyone to spout off about anything that comes to their minds about debt, deficits, and spending.  These things have virtually (and to be clear, I mean as close as possible to literally ) nothing to do with each other. As I discussed in a column last week, people conflate government shutdowns with a possible debt default, which is also deeply problematic.  What makes the "I'm just gonna say whatever comes into my head about government and money" response especially annoying, however, is that it opens up an unfiltered fire hose of statements based on confused thinking, uninformed priors, and an inability to separate the past from the present.  Please allow me to illustrate.

by Michael C. Dorf Much of the public discussion of the inconclusive Marshal's Report of the investigation into last year's leak of the draft opinion in Dobbs  has focused on a question that raises doubts about its thoroughness and fairness: why were the Justices not subject to the same requirements--such as signing affidavits--as law clerks and other Court personnel? Marshal Gail A. Curley, who headed the investigation, stated in response to this question that she "spoke with each of the Justices, several on multiple occasions" and "followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits." Maybe that's all there is to it, but given the status of the Marshal relative to the Justices versus her status relative to other Court personnel, it's also possible that she was predisposed not to push too hard to find leads tha...

by Neil H. Buchanan Yesterday, in what I admitted was a rather grumpy column , I waded back into the muck of the debt-ceiling debate.  I made it clear up front that there is nothing important about technically reaching the statutory debt limit this week, because the impending catastrophe will happen only if the Treasury Department exhausts its so-called "extraordinary measures," most likely in late Spring or early Summer.  Even so, it matters how the debate is framed over the coming months, and readers can be assured that both Professor Dorf and I will not be able to avoid writing again and again about the debt ceiling. Today, however, I want to turn to one of the most basic, old-fashioned seitan-and-potatoes political issues out there: taxes.  If the Republicans who are threatening to blow up the global economy by refusing to adjust the debt ceiling were truly interested in "fiscal sanity" of any kind, they would be talking sensibly about taxes and spending.  Inst...

by Neil H. Buchanan References to "Groundhog Day" cannot possibly do justice to the absurdity of the ever-returning debt ceiling madness, but I have not come up with anything better.  Maybe "the 'Groundhog Day' of 'Groundhog Day'"?  No, probably not.  In any event, having recently recovered from another bout of Covid-19, I have had more than enough of repetitive traumas.  But here we are, beginning yet another iteration of debt ceiling inanity. There has been a flurry of public discussion about the debt ceiling in the last couple of weeks, for two related reasons.  First, what we can now accurately call the "hostage-takers' caucus" -- also known as virtually the entire Republican Party -- announced loudly and clearly that they are planning to use their new House majority to threaten to force a US government default unless their demands are met.  It does not matter how slim their majority is, or how often pundits and journalists pretend ...

by Michael C. Dorf [N.B.  The following essay also appears on Balkinization as part of that blog's 20th Anniversary Symposium on the Present State of Constitutional Theory. I'm grateful to Jack Balkin for inviting me to participate and for permitting me to cross-post here.] * * * Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed ...