Dorf on Law

by Michael C. Dorf As I discussed in my last post , I think it unlikely that when the clock strikes midnight on Valentine's Day, the partial federal government shutdown will resume. To be sure, with Trump all (horrible) things are possible. Still, I regard two alternative scenarios as much more likely: (1) Congress adopts legislation that both extends DACA and TPS and contains funding for what can be characterized as a wall by Trump and a not-wall by Democrats; or (2) Congress adopts legislation that funds the government on a longer term basis, while Trump unilaterally declares a national emergency to fund his wall. Even before the latest shutdown ended, members of Congress introduced bills to outlaw future shutdowns. Ohio Republican Senator Rob Portman introduced a bill --the End Government Shutdowns Act--that would renew existing funding levels for 120 days. In the event that no new funding legislation is passed, a 1% across-the-board funding cut would then occur, followed by...

by Sherry F. Colb In my Verdict column for this week , I discussed the case of Mitchell v. Wisconsin , on which the U.S. Supreme Court recently granted review. The case asks whether a state can suspend the warrant requirement for blood samples that police wish to take from unconscious DUI suspects. The Wisconsin statute at issue provides that drivers give implied consent to such warrantless blood tests when they drive in the state and their driving gives rise to probable cause to believe they are intoxicated. Furthermore, if they become unconscious when police wish to take blood, they forfeit their right to revoke their implied consent, because they cannot revoke anything while unconscious. The Supreme Court will decide whether this makes sense as a matter of Fourth Amendment doctrine. In this post, I want to focus on the words "implied consent" and ask why anyone chooses to deploy such language. First, let us think of legitimate uses for the phrase. You go to a hair salo...

by Neil H. Buchanan One of the longest of long shots in the Democratic presidential field is Pete Buttigieg, the mayor of South Bend, Indiana.  One of the reasons that he is such a long shot is that, to state the obvious, he is the mayor of South Bend, Indiana.  As resumes for presidential candidates go, this is pretty unimpressive stuff. The mayor of Los Angeles, Eric Garcetti, is apparently is thinking about running , too, but at least LA is the size of many European countries -- and even then, Garcetti seems an unlikely candidate.  On the other hand, enough people voted for a nobody named Donald Trump in 2016 for him to sneak through the Electoral College into the Oval Office.  Also, Buttigieg's name might sound odd, but we did elect a guy named Barack Hussein Obama -- twice.  Who knows whether Buttigieg might find some traction? Because political handicapping is not part of my job description, however, I am happy to take Buttigieg's entry into the race...

by Diane Klein Back in May, 2018 , Roger Stone announced that he was "prepared to be indicted" by Mueller, and sure enough, in a pre-dawn raid on January 25, 2019, he was arrested by the FBI.

by Michael C. Dorf President Trump's capitulation last week to the Democrats' plan to reopen the government for three weeks while members of Congress of both parties (and presumably representatives of the president) negotiate allows for only two realistic options: (1) An agreement that permits Trump to claim that some amount of money has been appropriated for a "wall" while also permitting Democrats to claim that no money has been appropriated for a "wall"; or (2) no agreement on Trump's wall, a long-term spending bill that Trump signs, and a Trump declaration (over Democratic objections) of a national emergency that enables him to shift money from other appropriations to wall funding. Despite Trump's initial statement that failure to reach a deal that includes wall funding could lead to shutting down the government again, I regard that option as essentially off the table. The longest-ever shutdown gave Trump no leverage and undercut his already-...

by Neil H. Buchanan Even though the next U.S. presidential election will be held more than 21 months from now, it is understandable to want to talk and write about the candidates, even as one laments that the U.S. does not have snap elections that force shorter campaign seasons.  It is actually a pleasure of sorts to think about the prospect of replacing the worst and most dangerous president ever.  With no news about the shutdown, it is even more tempting to focus on the Democratic contenders.  What else is there to worry about, after all -- other than everything? With that non-apology on the table, I hereby pick up where my last column left off,  There , I asked which types of political apostasy in a candidate's past should count as "unforgivable."  Much to my chagrin, the candidate who failed my nascent forgiveness test is Senator Kamala Harris, who had been my personal favorite possible candidate for the past few months.  I will summarize my reasoni...

by Michael C. Dorf Notwithstanding the title of this column, I do not intend to diagnose Donald Trump with multiple personality disorder. Rather, I mean to invoke a well-known article by Kenneth Shepsle-- Congress is a "They," Not an "It": Legislative Intent as Oxymoron . Relying on difficulties long ago identified by Condorcet, Arrow, and public choice theory more broadly, Shepsle made a point that had hardly eluded scholars and judges but which, he argued with some force, many of them seemed to forget from time to time: the intent of a legislature in enacting a law is not merely difficult to discern but usually incoherent. Shepsle's article aimed at intentionalism in statutory interpretation, but he also criticized self-described textualists who limited their critique of intentionalism to an attack on sources. It's not enough to say (as Justice Scalia used to say) that committee reports and other forms of legislative history are unreliable evidence of ...

by Diane Klein Enes Kanter is afraid for his life.  And not because he might be fouled by Vince Carter or Dirk Nowitzki . The Turkish NBA player, until recently best known to Americans primarily as a double-double machine for the New York Knicks, stayed in the U.S. last week while his team traveled to London , because he was not confident his security could be assured.  What has put him at risk is his criticism of the current president of his home country, Recep Tayyip Erdogan, "a dictator in all but name," who is now seeking Kanter's arrest and extradition due to the player's association with the man Erdogan blames for the failed July 15, 2016, military coup attempt against him, his former ally,  Fethullah Gulen . Kanter's ties to Gulen are real; the athlete says he was with Gulen on the night of July 15, 2016, and he is a supporter of Gulen, though it has estranged him from his family in Turkey. However, the precise role of Gulen (a legal permanent re...

by Neil H. Buchanan As Donald Trump continues to prove his unfitness for office -- indeed, as he continues to demonstrate his complete lack of empathy for anyone who doe not support him (or even for millions who do) -- the Democrats are now launching their 18-month marathon to determine who will replace Putin's puppet.  Things are already rather interesting. Earlier this month, Professor Dorf wrote a column discussing the flurry of media coverage about a whisper campaign designed to sink Senator Elizabeth Warren's candidacy.  The idea is that Warren is supposedly not "likable," or something, and the people who want to bring Warren down are saying that she has all of the personality issues that supposedly were Hillary Clinton's undoing. Dorf's question was whether a person who does not buy into the obviously sexist basis for that argument can responsibly take others' sexism into account when deciding who should be the Democratic nominee next year.  D...

By Eric Segall Professor Ilan Wurman of Arizona State has written a thoughtful and mostly fair review of my new book Originalism as Faith . I wanted to briefly respond because the one aspect of the review that I think muddies the waters also happens to be what I think is the major new contribution of my book.