Dorf on Law

  by Michael C. Dorf Just about everybody who heard Vladimir Putin say "I'm not bluffing" when he threatened nuclear war last week probably thought, as I did: (a) Well that's terrifying; and then (b) but the fact that he says he's not bluffing hardly demonstrates that he's not bluffing, because admitting that one is bluffing would undercut the point of bluffing. Needless to say, whether Putin was bluffing is an existential question. Here I'll offer a few thoughts--recognizing that I have no special expertise in this matter but also recognizing that the people who do have expertise may not be very good at this sort of thing either, as it calls for game theory, military intelligence, and most importantly, a psychological assessment of a man who has been isolated from direct interaction with anyone who might provide useful information.

by Neil H. Buchanan At some point during Donald Trump's temporary occupation of the White House, Republicans decided that they did not need to be in favor of any specific policies.  Instead, they only needed to be in favor of outcomes that people like, such as "prosperity" and "strength."  Suddenly realizing that they could simply skip over the means and directly embrace the ends, Republicans apparently concluded that they did not need to bother explaining to anyone how they would move us away from American carnage and toward the wonderful world of great-again greatness. This was most famously on display at the 2020 Republican National Convention, when the party decided not to issue a new version of its quadrennial platform, saying instead that they were in favor of whatever Trump wanted to do.  That was a rather astonishing moment, because no one had ever confused a party platform with an action plan from a serious public policy think-tank.  Even endless plati...

by Michael C. Dorf My latest Verdict column urges Congress to enact legislation making clear that Title VI of the Civil Rights Act of 1964 does not bar race-based affirmative action by recipients of federal funds. As I explain in the column, depending on when such legislation went into effect, it would either prevent or reverse a decision by SCOTUS in the pending Harvard case, in which the Court will very likely hold that Title VI forbids nearly all race-based affirmative action. My proposed statute would do nothing for public colleges and universities like the University of North Carolina, the defendant in the companion case, because the Court will likely invalidate race-based affirmative action in that setting using the Fourteenth Amendment's Equal Protection Clause. Still, a half-victory via Congress is better than a total defeat via the Supreme Court; thus, my proposal. However, as I acknowledge in the column, Congress almost certainly won't take the action I recommend, wh...

by Neil H. Buchanan   American democracy continues to blunder forward, with even the most informed people imagining that although things are scary, somehow everything is as it has always been.  In my most recent Dorf on Law column , I commented on some shockingly blase comments by David Leonhardt, who is a New York Times columnist and a former Washington bureau chief at that important newspaper.   Leonhardt managed not only to bothsides the idea of gerrymandering but also to dismiss the extent of Republicans' redistricting successes, barely suppressing a yawn while concluding that "the current House map slightly favors Republicans, likely by a few seats."  So sure, he insinuated, maybe Republicans are doing the whole gerrymandering thing a bit more aggressively than Democrats are, but the extent of their success is "slight," only amounting to "a few seats."  Time to move on to other, more sexy, topics.  Right? In last Thursday's column, I lambas...

 By Eric Segall The Supreme Court’s new term starts a week from today with several scary cases on its docket. Among them are two affirmative action cases . It is more than likely that the Court will issue a decision prohibiting both public universities and private ones that receive federal funds from using race in any way in their admissions processes. And, once again, the Court will stand directly in the way of racial progress. In 1857, the Supreme Court stopped Congress from prohibiting slavery in the territories despite express constitutional text granting Congress the power to make all “rules and regulations” for those territories. In 1883, the Supreme Court prevented Congress from prohibiting racial discrimination in places of public accommodations such as hotels and restaurants despite Section 5 of the 14th  Amendment, which gives Congress the power to enforce the equal protection clause. But in 1896, when Louisiana required separate (and obviously unequal) seating c...

by Michael C. Dorf In addition to the possibility of criminal charges for their role in using Venezuelan migrants as what I called human spears in my Tuesday blog post , Florida Governor Ron DeSantis, other Florida officials, and the State of Florida itself now also face a civil lawsuit filed on behalf of the migrants. The complaint  alleges a much more elaborate plot to trick the migrants than has been widely reported. For example, one of the plaintiffs was (allegedly) put up in a hotel for five days and told by someone secretly working for DeSantis that if her "family got on the flight" the DeSantis agent had "arranged, then Plaintiff would be provided with permanent housing, work, educational resources for her son, and help changing her address for immigration proceedings." The factual allegations, if true, indicate that this was indeed a carefully calculated ruse and stunt. But what about the law? The complaint asserts common-law, statutory, and constitutional c...

by Neil H. Buchanan   At long last, the mainstream press and some of the pundits who are accepted in polite society are taking more and more seriously the idea that the US might soon cease to be a functioning constitutional democracy.  I continue to believe that it is already too late to prevent the worst from happening, but I also remain willing to reassess my predictions as new evidence comes in. Although Democrats have recently been feeling better about their chances in the midterms, there are still plenty of reasons to think that it will all go very badly for them (and the country) on November 8.  As but one among many examples, despite being one of the weakest candidates in the history of the country, Georgia's Republican candidate for the Senate is actually leading in the polls.  No matter how extreme or crazy (or blatantly dishonest ) the Republican nominees are for key gubernatorial and US Senate races, there is no evidence of any dams breaki...

by Neil H. Buchanan     For the past several months, Covid-19 has continued to kill between 2500 and 3000 people every week .  This is good news only when compared to pre-vaccine times, when the Covid death rate was much higher .  It would thus be inaccurate to say, for example, that "Covid is over," or that everything can go back to normal again. Some deniers were in fact saying irresponsible things along those lines from the very beginning, and they were and are wrong.  President Biden, however, did not say that.  He said during a recent interview that the pandemic is over, which can be true even while it is also true that we need to continue to worry about Covid-19 going forward.  Unsurprisingly, however, many people immediate jumped on Biden for his comments. Biden was right, and even though some commentators are characterizing the White House's efforts to clarify the situation as "walking back" his comments, the better way to think about it is ...

  by Michael C. Dorf Let's begin with the moral point. Even if one believes that federal immigration policy needs drastic reform, using undocumented immigrants as pawns and weapons is despicable. A recent Washington Post story thus aptly compared Texas Governor Greg Abbott and Florida Governor Ron DeSantis to Belarusian dictator (and Putin ally) Alexander Lukashenko, who sought to weaponize migrants by deceiving them and sending them across the border to ostensibly more welcoming states but jeopardizing their health and safety in the process. The WaPo story also calls out Turkish President Recep Tayyip Erdogan for a similar policy. To be clear. It should be acceptable for an immigration hardliner to make the rhetorical point that liberals are hypocrites for opposing immigration crackdowns while secluded in exclusive enclaves like Martha's Vineyard. Maybe they're right; maybe they're wrong. The "limousine liberal" charge is an old one that may have more or les...

 By Eric Segall Saturday September 17, 2022 was officially Constitution Day in America, though many universities (like mine) are celebrating it today. Our Constitution is the oldest written Constitution governing an entire country. Ratified in 1789, it has been amended only 27 times and 10 of those happened in 1791 (The Bill of Rights).  It certainly feels like the Constitution is failing America these days (though it can reasonably be argued that Americans are failing America these days). In any event, in honor of Constitution Day, here are my ten most important proposals to improve our foundational document. On one hand, I understand this is all pure fantasy. On the other hand, shouldn't we take a hard look at a document that was ratified over 200 years ago? This list obviously reflects my personal biases and values. How could it not? Other than number one, which I feel is the most important, the list is in no particular order. 1) The Constitution should be amended to guaran...