Dorf on Law

by Neil H. Buchanan [Note to readers: I have published a new column today on Verdict: " What Do 'High Negatives' Mean? Or: Hillary Clinton On Her Worst Day Is Better Than Donald Trump On His Best ."  I have nothing to add here to what I wrote in that column, but I obviously do hope that many people will choose to read it.] The total collapse of the Republican leadership's opposition to Donald Trump was, to say the least, unexpected.  After mocking him every step of the way during the primaries -- and despising Trump so much that they even reluctantly rallied around the much-hated Ted Cruz for a few weeks -- the party's leaders inside and outside of Congress ultimately fell in line very quietly.  There have been a few holdouts, such as Lindsey Graham and Mitt Romney, but no one predicted the degree of unity that Republican leaders have shown in supporting Trump. At some point soon, I will write about the peculiar tragicomedy that has become House Speaker ...

by Michael Dorf My latest Verdict column explores Donald Trump’s claim that the Orlando mass murder vindicates his proposal to block Muslims from immigrating to the United States. Spoiler Alert: I conclude that it does not. Here I want to address a related question raised by a number of statements I have seen. Some people have suggested that by stretching the envelope of what a president can do with respect to immigration without congressional authorization, President Obama has established a dangerous precedent that could be used to exclude Muslims by Trump. Is that right? I want to begin by stating that I have sympathy for the general form of the claim. Executive actions by one administration can expand the options available for a later administration in various ways. (1) Administration 1 might do something that gives Administration 2 ideas it wouldn’t have come up with on its own. (2) If Administration 1’s envelope-stretching policy is challenged in court and upheld, that...

by Neil H. Buchanan It has become commonplace in U.S. politics over the last few decades to hear people say, "Well, if X gets elected, I'm moving out of the country!"  Most people understand that this is simply a dramatic way of stating one's opposition to an especially unappealing candidate, but in the immature world of partisan politics, declarations of that kind sometimes become an issue.  Recall, for example, the controversy surrounding the actor Alec Baldwin in 2000. In my recent lecture tour of Australia and New Zealand, where I spoke to audiences about the U.S. elections and economic policy, I used a similar line: "If Donald Trump wins the election, I can tell you that my next trip to your country will be on a one-way ticket!"  It was a reliable moment of levity, and the point was obviously that I viewed Trump as a fundamentally dangerous candidate, not that my hosts were in danger of my moving into their guest room. Two weeks ago, I published ...

by Michael Dorf [Foreword: The following post is about a recent federal appeals court case rejecting a Second Amendment claim. It is not meant as a commentary on the mass murder in Orlando. The timing is coincidental.] Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling, Peruta v. County of San Diego , is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone wh...

By Eric Segall The Supreme Court has three controversial, nationally important cases left this term, all from Texas. The Justices have been asked by the state of Texas to declare President Obama's immigration plans illegal; a woman who has graduated from Louisiana State University is asking the Court to stop the University of Texas from using racial criteria among other factors for roughly 25% of its undergraduate class; and clinics and doctors who perform abortions are asking the Court to strike down a Texas law that requires doctors who perform abortions to have admitting privileges at nearby hospitals and requires clinics to dramatically change their physical plants in ways that would drive many clinics out of business. It is universally agreed that the doctors and clinics have legal standing to bring their case. But the Justices should not resolve the merits of the other two cases. It is horn book law that in all cases filed in federal Court a plaintiff must have a pe...

by Michael Dorf Yesterday's SCOTUS ruling in Puerto Rico v. Sanchez Valle  decides a relatively narrow question: whether the United States and Puerto Rico are separate sovereigns for purposes of the Constitution's prohibition on double jeopardy, such that a prosecution by federal authorities for the same conduct that forms the basis for prosecution by Puerto Rican authorities is permitted? The Court, in an opinion by Justice Kagan, said no. For double jeopardy purposes, the U.S. and Puerto Rico are the same sovereign. That ruling doesn't necessarily decide other questions about the legal status of Puerto Rico. To give a somewhat silly example, obviously it doesn't imply that Puerto Rico can't have its own Olympic team . But even while Sanchez Valle does not directly decide the status of Puerto Rico for all purposes, the reasoning of the case potentially does have implications for other issues. Most immediately, the reasoning of Sanchez Valle  could bear on whe...

by Neil H. Buchanan Everyone would like to find win-win solutions to problems.  If there is no pain associated with a policy proposal, there is likely to be no political opposition, and the proponents of such policies can claim to have found a way to make everyone happy. In budgetary policy circles, one supposedly win-win idea that simply will not die is the notion that cutting tax rates will paradoxically lead to increased tax revenues.  Widely known as the Laffer Curve, this everyone-gets-a-puppy-and-rides-on-a-rainbow promise has been around for the last four decades, tempting generations of Republican politicians to try to update old-fashioned trickle-down economics to be sold to a gullible public. It is impossible to write about taxes in the U.S. without bumping up against Laffer-inspired claims.  Two years ago, I wrote a column and a blog post directly discussing "why Laffer lingers."  One explanation is that there is always a new generation of wide-eye...

by Michael Dorf My latest Verdict column  characterizes Monday's SCOTUS opinion in Ross v. Blake  as an example of the continuing influence of Justice Scalia on the Court. Justice Kagan's opinion for a unanimous Court is highly textualist. Although none of the remaining Court members other than Justice Thomas are as committed to textualism as Justice Scalia was, even the purposivist justices practice a brand of purposivism that is, as other scholars have noted, textually constrained. The column is essentially descriptive. I say that Ross is evidence of Justice Scalia's continuing influence, but I do not say whether I think that influence is good or bad, liberal or conservative. Here I want to consider the latter question. I'll begin with a bit of skepticism about the importance of ostensible methodological commitments. At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutor...

by Neil H. Buchanan Over the past several years, I have puzzled over the phenomenon of the Moderate Republican.  As the party of my youth moved further and further to the right, first driving out Rockefeller liberals but ultimately reaching a point where even Ronald Reagan's policies are anathema to nearly the entire party, reports have continued to bubble up claiming that there are still moderate Republican holdouts. What could be keeping such people in a party that so clearly disdains moderation and compromise?  It was not due to a lack of an alternative, because the simple fact is that although the distance between the two parties has increased over the last few decades, the Democrats have moved consistently to the right, especially on the economic policies that supposedly matter to the people who claim to be "liberal on social issues but fiscally conservative." As the Republican campaign heated up last Fall, it became more and more obvious that the pose of Repu...

by Sherry Colb and Michael Dorf   [ Cross-posted on HuffPo , which accounts for the "op-ed" style.] Utah recently became the first state in the union to require that anesthesia be administered to fetuses aborted at or after 20 weeks of pregnancy. Pro-choice opponents of the Utah law argue that the best medical evidence indicates that fetuses do not feel pain until roughly 27 weeks. Moreover, they say, the administration of untested fetal anesthesia could jeopardize the health of pregnant women seeking abortions. These are legitimate concerns, but they do not argue against requiring fetal anesthesia. No one can deny that at some point prior to birth, the average fetus experiences pain and other sensations. If the Utah law mandates fetal anesthesia at a point in pregnancy when it would do no good, then the cutoff should be moved to later in pregnancy. If there are not current medical techniques for providing fetal anesthesia without jeopardizing the woman’s safety, such t...