Dorf on Law

By Michael C. Dorf In his majority opinion in Seila Law v. Consumer Financial Protection Bureau , CJ Roberts summarized prior precedents on the scope of Presidential removal power as recognizing "only two exceptions to the President’s unrestricted removal power.  . . . Congress [can] create expert agencies led by a group of principal officers removable by the President only for good cause [and] provide tenure protections to certain inferior officers with narrowly defined duties." The CFBP Director is an individual, not a group, so he doesn't fall within the first exception. And the CFBP has broad and far-reaching duties, so the Director doesn't fall within the second exception either. Thus, according to the majority, the restrictions on at-will Presidential removal of the Director are unconstitutional. Justice Kagan's dissent is very persuasive. The Constitution's text contains no removal limit at all, and there is nothing in the Court's prior cases to sug...

by Michael C. Dorf Unsurprisingly and (mostly) appropriately, the big news in the SCOTUS decision in June Medical Services v. Russo  is that, as the NY Times headline put the point, " Supreme Court Strikes Down Louisiana Abortion Restrictions ." The fact that Chief Justice Roberts was willing to cast the fifth vote to invalidate any state abortion restrictions is a big deal. As I explain below, it hardly guarantees that he will in the end cast a fifth vote to retain abortion rights in the future, but at the very least it buys time. That is no small thing. Thus one cheer. The Chief Justice should also be praised for not hiding behind procedural legerdemain. The dissenters say that there needs to be a full-dress trial in Louisiana while its law is in effect before a court can strike it down, notwithstanding the fact that it is identical to the Texas law struck down four years earlier by the SCOTUS in the  Whole Woman's Health case. Yet that course would invite and reward d...

By Eric Segall Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

by Michael C. Dorf There is much that's wrong with Justice Alito's majority opinion for the Court in Dep't of Homeland Security v. Thuraissigiam ,  but I want to begin by acknowledging that there's something basically right about  Thuraissigiam : Justice Alito is right that the writ of habeas corpus is typically said to be available only as a means of challenging custody. The disagreement in  Thuraissigiam concerns the question of what counts as a challenge to custody. I want to suggest here that the defects in Justice Alito's opinion illustrate a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention. Habeas has long been and should be broader than that. It is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.

by Neil H. Buchanan Every month, week, and day of the Trump Administration has been shocking and disorienting.  It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all.  Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better. My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month.  Part 1 was published yesterday: " Trump’s Upcoming Refusal to Leave Office: The Good News ."  Part 2 landed on the virtual newsstands today: " Trump’s Upcoming Refusal to Leave Office: The Very Bad News ."  Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all.  Relatively speaking, things are a lot better. The reason that I am suddenly less pessimi...

by Neil H. Buchanan I served on the law faculty of The George Washington University from 2007-19, and although I am delighted to have moved to my current position at the University of Florida Levin College of Law, my years at GW continue to exert some emotional pull.  I was thus delighted to see that 80 percent of my former colleagues signed a letter condemning GW Law alumnus William Barr for having "undermined the rule of law."  GW Law alum Kellyanne Conway is also a walking, talking repudiation of what law schools attempt to teach. More than 20 percent of the GW law faculty is, based on my years of observation, unlikely to be big fans of the Democratic Party, which means that some of those who signed the letter were doing something that did not line up with their political priors.  I hasten to add that those signers who happen to be Democrats are hardly to be disregarded merely because they have other reasons to be repulsed by Donald Trump and to oppose Republican ...

by Jed Stiglitz Last week the Supreme Court rejected the Trump Administration’s effort to rescind DACA, the policy started under President Obama to provide deportation relief to immigrants who arrived as children. In a 5-4 decision with Chief Justice Roberts writing for the majority, the Court held that the rescission was arbitrary and capricious and therefore invalid under the APA. The case is a major victory for the over 700,000 DACA recipients who rely on the program. The case also creates a number of wrinkles in administrative law and presents important puzzles, one of which I want to focus on—why did we have this case at all? Observers including my host  have suggested a number of responses to this puzzle, but they all fit comfortably within normal politics. I wish to suggest one outside of normal politics.

By Michael C. Dorf Another weekend, another Saturday night massacre. Or so it seemed before Geoffrey Berman spared us a reprise of the Western schism in the late-14th-century papacy. Had Berman persisted, it would have been an interesting question whether the SDNY was Avignon and Washington was Rome or vice-versa. Or, if you prefer your historical analogies to be more local and (relatively) contemporary, think of the aftermath of the Dorr Rebellion that led to SCOTUS punting in Luther v. Borden in 1849.  In any event, Audrey Strauss is now the Acting US Attorney in the SDNY. AG William Barr has stated that he expects her to continue in that capacity until the Senate confirms a presidential nominee, but I'm not reassured. By all accounts, Strauss is a highly regarded professional with integrity, which all but assures that she will incur the wrath of Donald, perhaps leading him to fire her too. 

by Neil H. Buchanan Along with the lovely derisive terms that right-wingers hurl at their opponents -- snowflakes and libtards being only the tip of that iceberg -- is the idea that non-conservatives are merely pretending to be morally superior to conservatives.  A relatively recent snide term along these lines is "virtue signaling," by which aggrieved conservatives say that other people are not truly committed to the ideals that they tout but are merely gaining social status by showing other liberals how upright they are. The problem is that so-called virtue signaling is rampant on the right, making them rank hypocrites.  It is worth taking a moment to see how this works, because it is a technique of distraction that non-conservatives have failed to confront with any effectiveness.

by Neil H. Buchanan It is a testament to the depth of the wounds of systemic racism in America that the protests sparked by the police murder of George Floyd have continued with such intensity for so long.  Especially during a public health disaster, it takes a lot to get people to sustain this kind of action and passion.  But with literally centuries of injustice unaddressed, it apparently took that final spark to start a conflagration. That is both tragic and hopeful.  The centuries of tragedy, of murder upon murder upon oppression upon oppression, are shameful to contemplate, especially because so many people knew about it but could not get everyone else to focus on such chronic injustice.  The hope now is that this is, at long last, the moment when things start to change in fundamental ways. In a column last week, I argued that this change should involve "leveling up," meaning that giving people equal protection means moving currently disadvantaged people ...