Dorf on Law

by Sherry F. Colb In my Verdict column for this week , I draw parallels between features of Miranda v. Arizona   and police interrogation, on the one hand, and attributes of the words spoken between people before they have sex, on the other. In particular, I propose that like concerns that giving suspects the Miranda warnings would shut down custodial interrogation, worries that requiring a man to refrain from having sex when his partner says "No" would interfere with consensual sex turn out to be unwarranted as well. Indeed, the real problem with Miranda  and with "No Means No" is that they do too little. Neither a suspect in custody nor a woman on a date consistently feels safe and comfortable enough to say no. In this post, I want to focus on a related matter: Why should people have to use language at all to let one another know what they do and do not want sexually? Why can't they just be passionate together and read each other's signals? It seems s...

By William Hausdorff Sometimes it appears that the end of the Trump administration nightmare is at hand, subject to a one-two punch from the Special Counsel and then the electorate in the mid-term elections. To mix sporting metaphors, in some articles it almost seems like a gimme, a golf shot that everyone agrees you don’t even have to take because it’s so easy.   The gimme is not to be confused with the infinite series of mulligans (shot do-overs) that evangelicals grinningly confess to providing Trump with as they overlook his disgusting and nasty personal behavior. I don’t think it’s a gimme, but there are some interesting twists in the ways this could play out.

by Neil H. Buchanan My car is running better lately.  My dog's coat is shinier.  Also, I have been sleeping better, and my ingrown toenail is not bothering me as much.  Why have all of these good things happened?  Because of the Republican tax cuts that Donald Trump signed last month, of course.  How silly even to ask. Now that Republicans have passed their historically unpopular and regressive tax cut, Trump and his helpmates are desperately trying to say that all good things that are happening have been caused by that one terrible new law. Their campaign is built around Republicans' apparently willful misunderstanding of economics and is sustained by their willingness to say anything and keep a straight face if doing so somehow supports Trump and justifies their tax cuts for corporations and wealthy people.  I cannot wait to see what the tax cut does to clear up the crabgrass in my yard.

by Michael Dorf My column for this week uses the occasion of the Supreme Court's decision to grant plenary review in the latest version of the Travel Ban litigation to take stock of the Travel Ban saga overall. I conclude that even if the Supreme Court ultimately upholds the Travel Ban or rejects the challenge to it on justiciability or other procedural grounds, the plaintiffs will nonetheless have succeeded in substantial measure. I identify three ways in which a Supreme Court defeat would nonetheless leave intact at least a partial victory: (1) the interim relief and delays permitted thousands of people who otherwise would have been excluded by the Travel Ban to come to the US; (2) the initial court decisions invalidating the ban led to modifications that resulted in somewhat less harsh and more defensible (though still, in my view, unlawful) versions; and (3) the Travel Bans crystallized the cruelty, incompetence, racism, and other horrible aspects of Trump and his administra...

by Neil H. Buchanan One of the most openly partisan provisions in the tax bill that Donald Trump signed last month was the limitation on the deduction for state and local taxes (SALT).  How can that be partisan?  Because so-called blue states collect more in taxes than red states do, allowing the blue states to provide more services to their citizens while red states starve their public sectors.  Limiting that deduction thus increases taxes on blue state taxpayers. The ability to deduct SALT payments when computing federal taxes is, in fact, one of the only ways that the federal government helps blue states.  Red states are generally net recipients of federal money while blue states are net payers, and the difference can be large .  Focusing only on the SALT deduction deliberately obscures that larger reality. In part one of this two-part series of columns, I noted Michael Dorf's argument that the effort by Trump and the Republicans in Congress to specifi...

By Eric Segall In Janus v. AFMSCE , the Supreme is revisiting the issue whether state laws requiring all public sector employees to pay union dues violates the First Amendment. Some  state  employees who don’t want to join unions argue that these dues fund ideological speech with which they disagree. Therefore, they contend that state laws requiring them to pay the fees against their will violate their right to free speech. The states’ counter-argument is public-sector union activities redound to the benefit of all state employees and, in any event, non-consenting employees may engage in as much counter-speech as they want against the union’s activities, so their first amendment rights are not abridged.

by Michael Dorf Yesterday was the first meeting of a new seminar I'm teaching this semester called Hamilton Versus Trump: Reading the Federalist Papers in Contemporary Context . I intend to provide occasional reports on topics that arise in the seminar over the course of the semester when they strike me as likely to be of wider interest. But first, the course description: This seminar will explore the contemporary relevance of The Federalist Papers. In constitutional law classes, students typically read excerpts of a few of The Federalist Papers. In this seminar, we will read them in order and in their entirety.  For each of ten sessions, students will read a number of the essays. Prior to each of these meetings, each student will be responsible for identifying at least one contemporary issue to which the assigned reading from The Federalist speaks. Class discussion will then be divided roughly evenly between analyzing the arguments in The Federalist on their own terms and...

by Neil H. Buchanan Taxes are not supposed to be in the news right now.  Back in December, Republicans abandoned all pretense of legislative order and sensible lawmaking to pass their stroke-the-rich tax bill, which Donald Trump happily signed.  And now we are supposed to have moved on, which is pretty much what has happened.  Why continue to worry about the last tragedy when new tragedies are hitting us in the face every day? It is amusing to note, however, that Trump and the Republicans apparently think that their awful tax bill was a political win for them, which means that they are the ones who want to keep talking about it. In his inimitably narcissistic way, Trump even argued that the current government shutdown is all about the tax law.  As The New York Times reported on January 18: "Traveling in Pennsylvania, Mr. Trump accused Democrats of provoking a shutdown to drown out discussion of the Republican tax overhaul. 'I think the Democrats would l...

by Michael Dorf A new National Constitution Center (NCC) podcast hosted by NCC President Jeffrey Rosen and featuring Cato's Ilya Shapiro and yours truly addresses federalism issues arising out of three controversies in the news: the pending Supreme Court case of Christie/Murphy v. NCAA ; the rescission by Attorney General Sessions of the Cole memo regarding federal enforcement of the Controlled Substances Act with respect to marijuana in states that have legalized medical marijuana (and related actions regarding enforcement with regard to state-legal recreational marijuana); and the Trump/Sessions policy with respect to sanctuary cities. The common thread running through each of these controversies is the constitutional doctrine forbidding the federal government from "commandeering" state legislative and executive officials. Because I have already commented on the marijuana and sanctuary cities issues, in this column I'm going to expand on a position I articula...

by Neil H. Buchanan As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by undermining the Republican leaders' latest bargaining strategy.  Within minutes, however, that was (unsurprisingly) being disputed . This is a mess, but other than proving again that Trump knows nothing about negotiating and that Republicans are incapable of governing responsibly, does any of it matter?  The short answer is that a possible shutdown is not as important as people make it out to be.  Because this is ultimately all about political theater, however, this lowbrow farce can end up making a big difference for the two parties' respective political fortunes. In any event, it is worth understanding what ...