Dorf on Law

by Michael C. Dorf On Wednesday I explained why Justice Thomas is wrong in arguing, as he did in his dissent from denial of certiorari in Baldwin v. United States on Monday, that Chevron  deference to administrative agencies is unconstitutional. His argument, I explained, relies on an unnecessarily maximalist understanding of Chevron , seeing that case as mandating judicial abdication of the authority to construe the law in favor of administrative interpretation rather than as simply a presumption of statutory interpretation according to which congressional use of vague or ambiguous language in agency-empowering statutes acts as a delegation of policy-making discretion to agencies. Today I want to focus on Justice Thomas's further argument (in part II of his Baldwin dissent) that even accepting Chevron , his own majority opinion in the Brand X case should be overruled. He writes: "By requiring courts to overrule their own precedent simply because an agency later adopts ...

Note to readers: My new Verdict column today takes a break from pessimism and looks (with a small amount of success) for reasons to be optimistic about the U.S. constitutional system.  My column here does not build on the Verdict piece, but I encourage you all to read -- and possibly enjoy -- both. by Neil H. Buchanan Did you know that the Change Candidate always (at least since 1960) beats the No-Change Candidate in U.S. presidential elections?  Other than when formerly Change Candidates run for reelection, this is true -- every time.  And even when a president is running for a second term, the basic logic still works -- every time. Although what I wrote above is mostly true (which I will demonstrate momentarily), the whole exercise is absolutely pointless and nonsensical.  Let us put aside for today thoughts of the doom of our constitutional system and work through a demonstration of armchair analysis that would be on the high end of U.S. political pund...

by Michael C. Dorf Dissenting from the denial of certiorari on Monday in Baldwin v. United States , Justice Thomas urged his colleagues to reconsider and overrule its 2005 decision in  National Cable & Telecommunications Assn. v. Brand X Internet Services . Justice Thomas himself wrote the opinion for  the Court in Brand X. While he deserves praise for showing a willingness to change his mind, his dissent is wrongheaded. Justice Thomas was right in 2005 and wrong now. Although the Baldwin cert petition targeted Brand X , the real quarry for Justice Thomas is the doctrine on which it relies: Chevron deference to agencies.  Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , permitted the Reagan administration EPA to apply a more lenient interpretation of the term "stationary source" in the Clean Air Act than had the Carter EPA on the ground that an agency's reasonable construction of an unclear statutory term is entitled to deference by reviewing courts...

by Neil H. Buchanan It is hardly news that the liberal establishment is absolutely freaking out about Bernie Sanders, just as it previously freaked out in an (apparently successful) effort to tear down Elizabeth Warren's candidacy last summer and fall.  Now that Sanders seems on the verge of locking up the Democratic Party's presidential nomination, things are truly getting weird at the top. It is not as though things have been sane in the suites of Democratic influencers up until now.  Last April, I wrote two columns describing the group panic that had Democratic insiders making all kinds of scurrilous attacks on Sanders.  And even on a less panicked level, the so-called moderates (whose moderation nearly always manages to lean right on economic and foreign policy) have been deliberately maligning the progressive candidates' positions. Thus, just a couple of weeks ago, the editors of The Washington Post wrote that "Sens. Bernie Sanders (I-Vt.) and Elizabeth ...

by Michael C. Dorf A recent  Note in the Harvard Law Review  (also available here as a pdf) argues that state laws banning boycotts of Israel (so-called anti-BDS laws) cannot fairly be justified by claiming that such boycotts involve illicit discrimination or antisemitism and that therefore they should not be characterized as anti-discrimination laws. I think I might agree with that core claim. After all, although some people who support the BDS movement are motivated by antisemitism, many simply oppose various policies of the Israeli government. To be sure, some proponents of anti-BDS laws argue that participants in the BDS movement unfairly single out Israel. Why don't the proponents of BDS boycott Russia (which illegally occupies Ukrainian territory), China (which occupies Tibet and has sent over a million Muslims to reeducation camps), or other countries that violate human rights? The singleminded focus on Israel, BDS opponents say, bespeaks a bias. How widespread i...

by Michael C. Dorf After a former law clerk to Judge Reinhardt testified before a House subcommittee about how he sexually harassed her, other former law clerks reacted with supportive comments. For example, I posted a personal statement  saying that I believe her account and echoing her call for better systems for training, deterring, reporting, and responding to such conduct in the judiciary. Late last week over 70 former Reinhardt clerks (including me) signed a statement expressing those sentiments and more. Our statement, which has received some media attention, appears here .

by Neil H. Buchanan How far should candidates go in attacking each other during primaries?  How unfair is too unfair?  How awful is too awful?  Former Mayor Michael Bloomberg decided to cross the line two nights ago, and he went so far past it that I was temporarily at a loss for words.  But the red-baiting plutocrat actually did us an inadvertent favor, because in crossing that line, he actually exposed a deep similarity between communism and (Bloomberg's version of) capitalism. I have been very hard on Pete Buttigieg and Amy Klobuchar for their unfair treatment of Elizabeth Warren, especially when they have falsely accused her of being vague and unrealistic.  Even so, those attacks might arguably not be the kind of thing that can readily translate into attack ads for the Republicans.  The difficult balancing act for candidates is in saying, "I'm better than her/him," without saying "She/He should never be president."  So let me be clear...

by Michael C. Dorf I believe myself to be, overall, a pretty good parent, but like most parents, I've said or done things I regret. A low point for me came when my then-five-year-old daughter was resisting being dropped off for the first day of a half-day summer day camp at the local Y. I had a work meeting for which I was late and she was grabbing onto my leg and refusing to go with the "nice lady" (a teenage counselor) to play with the other five-year-olds. After my various efforts at coaxing and cajoling had failed, I resorted to a threat. "I guess I'll have to call the police," I said sternly. My daughter looked at me and said with disdain and anger: "This is not the kind of thing you call the police for." She was right, of course. Needless to say, I did not call the police, and eventually she calmed down. Knowing who can be held accountable for what by whom and in what way is much of what knowing about the law entails. Accordingly, I was...

by Michael C. Dorf The call  by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR . In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said: I would agree that it would perhaps be better if the president didn't tweet about matters of this nature that are before the Justice Department. But on the other hand, there is a level of transparency as to his position that might not otherwise be seen. In response to a follow-up question, Terwilliger repeated the claim, stating that "there's a certain l...

by Neil H. Buchanan Donald Trump repeats himself quite often, and one of his favorite claims is that he has an "absolute right" to do whatever it is that he currently wants to do.  Most recently, for example, he claimed to have the absolute right to tell the Department of Justice what to do in the Roger Stone case (even though he denies having intervened).  He thinks that Article II of the Constitution means that "I have the right to do whatever I want as president," which would be funny if it were not so frightening. This means that Trump is accelerating down the road to autocracy and that "Trump and his supporters are effectively arguing for an elective monarchy" -- although the "elective" part clearly only includes the presidential election of 2016, given that the Democrats' 2018 blowout win somehow did not reflect the people's will, in Trump's eyes.  Only some elections count, apparently .  Certainly, 2020 will only count ...