Dorf on Law

By Mike Dorf An AP wire story that reports on a movement in state legislatures to forbid any sort of "individual mandate" to buy health insurance, even one coming from a federal statute.  The story (accurately) quotes me as follows:  "They are merely symbolic gestures," said Michael Dorf, a constitutional law professor at Cornell University. "If this Congress were to pass an individual mandate, and if it is constitutional - which I believe it is - the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails." In a display of typical two-sides-to-every-issue false equivalence, the story introduces this quotation by noting only that " it's questionable that such . . . measures could shield state residents from a federal health insurance requirement."  Questionable?  I'll say.  Much in the same way that it's questionable that the Flintstones accurately portrayed early human life in all of it...

By Mike Dorf Taken to its logical extreme, the NIMBY phenomenon--"not in my back yard"--leads to BANANA--"build absolutely nothing anywhere near anyone," because if some site is undesirable in X's backyard, it will often be undesirable in Y's backyard.  This phenomenon is now at work in the Obama Administration's apparent reversal of its initial decision to try Khalid Shaikh Mohammed and four accomplices in federal district court in Manhattan. In this post I want to underscore the path-dependence of how we got here. According to published accounts, the volte-face by Mayor Michael Bloomberg and other NYC officials on a civilian court trial was the product of renewed terrorism jitters arising out of the foiled Christmas Day airline bombing and the revelation that the NYPD's plan to secure the KSM+4 trial would be inordinately expensive and disruptive of traffic (and thus business) in lower Manhattan.  Neither of these obstacles would be as serious...

This was a line from a documentary I recently saw - The Cove . As a piece of documentary film, I cannot recommend this strongly enough, though I found it impossible to watch the last 5 minutes of the film and other short parts were difficult to get through as well. The overall story is a documentary about how the last 5 minutes of the film were shot and it is fascinating. What I am taking the time to write about, however, is just a few lines from the film. A small Japanese village (Taiji) is the source of pretty much every dolphin at all of the world's very popular sea entertainment facilities. Only a handful of dolphins are sold each year (though because of their quite high two- and five-year mortality rate in captivity, sea entertainment facilities always need a ready supply of entertainment dolphins). In addition to the handful that are captured for sale to the sea entertainment industry, approximately 35,000 dolphins are brutally slaughtered for their meat. When intervie...

-- Posted by Neil H. Buchanan The link to my most recent FindLaw column, " If We Must Obsess About Budget Deficits, Can We At Least Measure Them Correctly? " is now working. This is the column that I discussed at the beginning of yesterday's Dorf on Law post, " Deficits, Inflation, and Living Standards ."

By Mike Dorf As Linda Greenhouse noted , President Obama's criticism of the Supreme Court's Citizen United speech made for an awkward moment and arguably showed why Supreme Court Justices should not attend the State of the Union address. While not quite Joe-Wilson-esque, Justice Alito's shaking of his head in disagreement was itself a mild breach of decorum: If you're going to show up at a political speech by a President who, when a Senator, voted against your confirmation, be prepared to grin and bear--or at least sit stone-faced through--criticism of your recent politics-affecting decision. Meanwhile, although Justice Alito's head shake is getting a lot of attention, the substantive issue should not be overlooked.  And here I do not have in mind the question of what, exactly, the President believes Congress can do to limit corporate influence on politics without once again running afoul of the Supreme Court.  That's an important question, but there is a m...

-- Posted by Neil H. Buchanan My FindLaw column this week continues my reaction to the Democrats' renewed zeal for fiscal orthodoxy. I have particularly harsh words for President Obama, whose embrace of the Republicans' insane idea to freeze spending during a recession is nothing short of irresponsible. I go on in that column to offer what I hope is a constructive idea: If we must live in a world where politicians pander to (and thus reinforce) politically contrived fears about deficits, maybe we should revisit how deficits are measured. I suggest that any efforts to create a bipartisan panel to fight deficits should instead be used to create a panel to measure the fiscal deficit in a responsible way. Even though such a panel would surely be populated by the usual suspects who infest Washington, the net result of a semi-public discussion of how to measure deficits would have to be positive. We use the simple-minded cash-flow measure of deficits now. Even alerting the publ...

By Mike Dorf On Friday, I'll be presenting a paper at a conference at the University of Pennsylvania (sponsored by the U Penn Journal of ConstitutionalLaw) on The Judiciary and Popular Will .  The Symposium is built around (though not limited to) themes discussed in Barry Friedman's terrific new book, The Will of the People .  Readers who have followed Friedman's academic work over the last decade and a half will see in the book the development of points he made in a series of articles tracing the history of the countermajoritarian difficulty (a clumsy phrase coined by Alexander Bickel to refer to the power of American courts to invalidate as unconstitutional laws passed by majoritarian bodies).  But the book is not just a re-packaging of a collection of articles.  It is a lucid and powerful narrative. What's odd about Friedman's book--or what's odd about the necessity of the book--is that his core point has been known for many years: He shows how the Supre...

By Mike Dorf In my post yesterday , I gave Justice Thomas a hard time for taking the view that corporations are constitutionally entitled to make campaign expenditures without having to comply with a statutory duty to disclose that they are doing so.  Today I want to praise Justice Thomas for his dissent from the denial of certiorari in Noriega v. Pastrana .   Former Panamanian dictator Manuel Noriega, who is scheduled to be released from federal custody shortly, filed a habeas corpus petition arguing that the the U.S. would violate the Geneva Conventions if it followed through on its plans to send him to France for further trial, rather than allowing him to return to Panama. Here's the core of Noriega's argument: 1) The provision of the Military Commissions Act (MCA) that, by its terms, appears to strip federal habeas courts of the power to grant relief under the Geneva Conventions, is actually best read as not doing so. 2) If, by contrast, the MCA does strip habeas...

Posted by Mike Dorf My latest FindLaw column critically examines Citizens United v. FEC .  I conclude that the decision probably won't do as much damage as many of the good-government groups fear because: a) even before Citizens United , corporations had plenty of ways to influence politics; and b) the largest wealthiest corporations will usually be wary of becoming too obviously involved in politics for fear of alienating roughly half of their customers.  Nonetheless, I criticize the Court pretty sharply for its overall obtuseness. Here I want to add a brief word about Justice Clarence Thomas's remarkable separate opinion.  Although the Citizens United Court split 5-4 on the constitutionality of McCain-Feingold's limitations on corporate independent expenditures, 8 Justices agreed that its disclosure and disclaimer requirements are valid.  As a result, if, say, Exxon-Mobil were to start running ads opposing candidates who want to slow global warming by curbing...

By Mike Dorf Overturning two precedents, this morning the Supreme Court invalidated the application of the Bipartisan Campaign Reform Act (aka McCain-Feingold) to corporate-funded independent expenditures.  I'll have more to day about the case-- Citizens United v. FEC --in my FindLaw column and an accompanying post here on Monday.  (My preview of the issues back in August appears here .)  For now, here is a quick observation about the constitutional rights of corporations. Neither the majority nor the dissent directly cites Santa Clara County v. Southern Pac. RR , the 1886 case that said that corporations are persons under the Fourteenth Amendment.  However, the spirit of Santa Clara County could be said to hover over the opinion.  Part III(A)(1) of the opinion begins with the following statement: "The Court has recognized that First Amendment protection extends to corporations."  There then follows a citation of over 20 First Amendment cases involving...