Dorf on Law

  by Michael C. Dorf On Wednesday of last week, SCOTUS heard oral argument in Arizona v. San Francisco . After providing an account of the case, I'll raise a question that was suggested but not fully explored during the argument: Can a new administration acquiesce in a judicial ruling it believes is wrong as a legal matter but consistent with its policy druthers in order to short-circuit notice-and-comment rule making? So yes, today's essay is an 11 on a 1 to 10 scale of wonkishness.

by Neil H. Buchanan   With Vladimir Putin now unmistakably threatening to use nuclear weapons if he is thwarted in his takeover of Ukraine (and who knows what other countries), this is a grim day indeed.  The horrors happening in Eastern Europe necessarily dominate the headlines, and we all hope for the best while having a difficult time even fathoming what "the worst" might be. Perhaps as a matter of denial or distraction, but mostly because I have no expertise in matters of war and peace, this column is not about any of that.  I will, instead, focus on what in any other time would be very big news: the Republican Party has admitted at long last that it is the anti-Robin Hood party.  If the world survives Russia's military assault, this will be a moment worth remembering, because the rich are not only going to continue to get richer, but Republicans are now even more unmistakably targeting the poor for further immiseration.  

  by Michael C. Dorf The Soviet Union was a founding member of the United Nations in 1945. Interestingly, in a move that gave the Soviets three rather than just one seat in the UN, so were two Soviet republics. After the breakup of the Soviet Union, Russia took the primary Soviet seat (including as a veto-wielding permanent member of the Security Council), while the successors to the other two Soviet seats were Belarus (now reduced more or less to a Russian puppet) and Ukraine (currently the victim of Russian aggression). As a member of the UN, Russia has bound itself to the  UN Charter , which states, in Article 2, Section 4: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Accordingly, Russia's invasion of Ukraine, its recognition of independence for Luhansk and Donetsk, its pri...

by Neil H. Buchanan The fad of the moment is to fault Democrats for being "out of touch" with the presumed concerns of regular folks, who are supposedly turned off by "wokeness" and other right-wing tropes that the political media has uncritically adopted.  Washington Post columnist Jennifer Rubin calls these dire warnings to Democrats "tough love," saying that "[p]ollsters, analysts and campaign leaders are telling them they have overreached and ignored the legitimate cultural concerns of voters."   Although Rubin does not buy into the framing as much as others do, she is still amplifying a false narrative.  The idea that Democrats might lose in November's midterms because of "cultural concerns of voters" is both nonfalsifiable and an attempt to move the party away from what are in fact popular and easily defended positions.   But no, say the grim "facts don't lie" scolds, most recently evidenced in a study from th...

 By Eric Segall Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference.  I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful ...

  by Michael C. Dorf On Friday, the Supreme Court granted certiorari in Biden v. Texas , setting an expedited briefing schedule that will result in an oral argument this April. A federal district court forbade the Biden administration from terminating the Trump administration's "Migrant Protection Protocols" (commonly called "Remain in Mexico" but which I'll abbreviate as MPP) under which undocumented immigrants presenting themselves at the southern border for admission as refugees or otherwise are temporarily removed to Mexico to await a hearing to determine their eligibility to enter the United States. The US Court of Appeals for the Fifth Circuit denied relief from the district court order. The case presents two basic questions: (1) Whether MPP is required by statute?; and (2) whether the Fifth Circuit rightly rejected detailed memoranda memorializing the work done by the Biden administration's Department of Homeland Security to strengthen the case ...

  by Michael C. Dorf After Justice Sotomayor, who serves as the Second Circuit Justice, rejected an emergency application from plaintiff NYC Dep't of Education employees challenging a vaccination mandate, the plaintiffs refiled (as is their right) with Justice Gorsuch , who in turn referred the petition to the full Court for consideration at its March 4 conference. The case presents some procedural questions about whether the defendants and trial court have been complying with an earlier appeals court ruling in the case, but I mostly want to bracket those issues to focus on the core claim of religious discrimination. As the Second Circuit found, the policy as originally written is neutral on its face; it provides no religious exceptions but neither does it provide exceptions on secular grounds that might be a baseline against which one could argue that the absence of religious exceptions is discrimination against religion. A teachers' union objected to the absence of religiou...

by Neil H. Buchanan   What about the children?  Won't somebody please think of the children!   With all due respect to the fictional Mrs. Lovejoy, the problem is not that no one is thinking of the children.  The real problem is that people have no idea how to think intelligently about the children (or much else).  Combine that with general innumeracy, and we almost always find that the people wringing their hands about the fates of our young people are engaged in projection, wishful thinking, or simple political opportunism. In my writing over the years about intergenerational justice (one of dozens -- if not hundreds -- of examples here ), I have noted many times that anyone can turn any argument into a "for the good of the children and grandchildren" heart-string tugger.  And I do mean anyone making any argument.  Just this week, reports emerged about the mayor of a small town in the state of Washington who is a believer in a conspiracy that goes...

by Michael C. Dorf Yesterday, the jury hearing  Palin v. New York Times rejected Sarah Palin's claim that the New York Times defamed her when it falsely stated in a 2017 editorial (that it subsequently corrected) that Palin's promotion of a map showing congressional districts in crosshairs had inspired Jared Loughner to shoot Congresswoman Gabby Giffords. Presumably the verdict was based on the jury's conclusion that the Times did not act with "actual malice" -- the high threshold for liability to a public figure or public official under the First Amendment as construed by  NY Times v. Sullivan  and subsequent cases. That's that, right? Hopefully so, but perhaps not, thanks to an unforced error by SDNY Judge Jed Rakoff, who presided over the trial. On Friday of last week, Judge Rakoff sent the jury to deliberate. On Monday, before the jury had concluded its deliberations, Judge Rakoff told the lawyers and parties that he had reached a conclusion: If the jury c...

by Neil H. Buchanan   Last Friday, a Washington Post news article ran under this headline: " House aides weigh deficit reduction as way to revamp economic plan for Manchin ."  Given that Senator Joe Manchin's statements about fiscal policy over at least the last six months have been either confused or dishonest (usually both ), this was one of those recurring moments of deep frustration that are familiar to anyone who knows anything about fiscal policy.  It is understandable that House Democrats would feel the need to offer to take Manchin at his word, trying to rework the Build Back Better legislation to win his vote by giving him a bill that would lead to "deficit reduction" -- even though the original legislation that Manchin has rejected was "paid for."   But it is also inevitably not going to work, because of Manchin's confusion and/or dishonesty.  Moreover, even if this does somehow win him over, it will be at the cost of kowtowing to econo...