Dorf on Law

by Michael C. Dorf Constitutional law is replete with tests that are not literally found in the text of the constitutional provisions the tests implement. For example, time, place, and manner restrictions on speech on government property that is a public forum are permissible so long as they are content-neutral and leave open adequate alternative opportunities for speech. Race-based classifications by government are impermissible unless they are the least restrictive means of advancing a compelling governmental interest . Police investigative activity constitutes a search within the meaning of the Fourth Amendment if it violates a reasonable expectation of privacy . None of the italicized phrases in the foregoing paragraph appears in the relevant constitutional text. And while conservative scholars and jurists sometimes complain (selectively) about courts reading into the Constitution concepts that its text does not contain, they routinely apply existing tests and often formulate...

by Neil H. Buchanan   In a recent Dorf on Law column , I offered a parenthetical observation at the end of the opening paragraph: "Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!"  Oddly enough, the topic of that column was tax policy, but it is in fact fitting that it somehow made sense to make a sarcastic remark about culture-war tropes even while writing about such a mundane topic.  The Republicans' grievance machine is working overtime, and it is flooding even unexpected corners of our existence with hate. Even in the best of times in this country, it was not outright shocking when right-wingers would insult people on the left with weird personal attacks.  "Why do you hate America?" was their response to critics of the Iraq invasion in 2003, for example.  In my f...

  by Michael C. Dorf Much of yesterday's oral argument in Biden v. Texas focused on statutory meaning. To oversimplify somewhat so I can get to my main point for today's post: (1) A statutory provision tells the federal government that undocumented immigrants seeking asylum "shall be detained;" (2) but Congress has never appropriated nearly enough money to pay for the cost of detaining all but a relatively small fraction of such asylum seekers; (3) not withstanding the detention obligation, the same statutory provision states that the Attorney General "may return" asylum seekers to a contiguous country (i.e., Mexico or Canada) from which they entered, although of course the government cannot do that without the contiguous country's agreement; (4) yet another statutory provision  authorizes the Secretary of the Department of Homeland Security "in his discretion" to "parole" otherwise not-yet-admitted undocumented immigrants (includin...

by Neil H. Buchanan The increasingly intense Republican efforts to energize their angriest voters with nonstop culture-war battles is truly a national effort.  Even so, because Republicans' power is currently limited to the state level, the action is happening in statehouses rather than in Washington, DC.  With hundreds of state-level Republicans -- those now in office as much as those who are trying to win party primaries -- trying to prove who is the Trumpiest of them all, one might imagine that it would be difficult to identify an epicenter of the most intense activity. Please forgive me for this groan-inducing play on words, but there is an epicenter, and it is the home of Epcot Center.  (That was almost as bad as Maureen Dowd's typical column.  I am truly ashamed.)  Despite occasional efforts by Texas Republicans to take the lead, Florida is where the most extreme action is.  There is so much going on here that it is nearly impossible to keep up....

 By Eric Segall The first amendment provides that the government may make no law "respecting an establishment of religion or prohibiting the free exercise thereof." Not too long ago, the Supreme Court took both parts of the religion clauses of the first amendment seriously. The Court, however, has now decided to breach the wall of separation between church and state by effectively reading the establishment clause out of the Constitution and by re-interpreting the free exercise clause to not only bar discrimination or punishment of religion by the government but also by forbidding states from relying on establishment clause concerns to justify keeping government and religion separate. The result is a theocratic Supreme Court imposing its strong religious beliefs on both the states and the American people. These dramatic changes have occurred not because of any change in constitutional text or new historical insights but because the Justices' values have changed.  Not too ...

  by Michael C. Dorf In a recent blog post , Professor Eugene Volokh considers the question whether Florida's imminent withdrawal of the very substantial legal benefits it had bestowed on the Disney Corporation--in obvious retaliation for Disney's opposition to Florida's "Don't Say Gay" legislation--violates the First Amendment. Although Professor Volokh's views overall could be fairly called center-right (with a strong libertarian streak) while mine could be called center-left, we often agree and sometimes work together ( e.g., here ) on free speech issues. I find Professor Volokh's post characteristically thoughtful and balanced. He first sets out the precedents and principles that might lead one to conclude that Florida will violate Disney's free speech rights if, as seems likely, it revokes Disney's various privileges and breaks. Employee speech cases are most apt here. As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendel...

By Eric Segall A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway.  I was probably wrong. I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk abo...

by Neil H. Buchanan There was a time when conservatives could plausibly claim to favor law and order.  Although that was always deeply infused with racism and included a lot of nodding and winking at various types of atrocious behavior (see, for example, the excuses for privileged White males to get away with sexual assault, because "boys will be boys"), they were at least able to say with a straight face that they wanted (most) laws to be enforced and that (most) people should live by the law. That is plainly no longer even arguably the case, but how did the change happen?  As it turns out, the area in which conservative politicians began to be openly contemptuous of law and order was taxes.  Lacking the political will to cut rich people's taxes as much as they wanted, the next best thing was to make everyone hate taxes and tax enforcers so much that there would be revulsion against the very idea of enforcing taxes.  Although Donald Trump is an extreme outlier in m...

  by Sherry F. Colb [Note to readers: The following is the text of remarks I recently made on the Think Like a Vegan  podcast. If you prefer to listen rather than read, you can do so here  or on the Think Like a Vegan feed on Apple podcasts, Spotify, or Stitcher.] When I first became vegan and told people about it, I ended up hearing many surprising questions. Some of the questions came from sincere curiosity, and I think some might have come from resistance. I remember not being vegan and wanting to come up with a question that would stump vegans and lead to the conclusion that I could continue to eat animals and their reproductive secretions. Regardless of why someone was asking a question, I tried to treat both the person and her question with respect. Getting angry, annoyed, or impatient in response to questions would surely turn people off veganism. If we are having a conversation about it, then change is possible. The question I want to talk about today is some vers...

by Neil H. Buchanan Yesterday, April 18, was the last day to file returns with the IRS for the 2021 tax year.  Well, not really, as I will explain below, but that is how this is generally reported in the news.  Normally, April 15 would have been the relevant date, but because that fell on Good Friday this year, the relevant decision makers decided that the US Treasury should not wage a War on Easter and thus pushed the filing date back.  (Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!) There are two competing points that I want to make here about tax filing.  First, it is nowhere near as difficult as people make it out to be, with the IRS doing an amazing job of simplifying the process, against all odds.  But second, tax filing should be nowhere near as difficult as it still is...