Dorf on Law

Not every clown in the clown car that will be the second Trump administration must be appointed in conformity with the Constitution's Appointments Clause. For example, people named to White House staff positions--including powerful positions like the Chief of Staff--are not officers of the United States. They can thus be named by the president unilaterally. Likewise, fake/advisory entities such as the "Department of Government Efficiency" can be headed by whatever ketamine addict and/or vulture-capitalist-turned-political-opportunist the president selects. But some of the highest-profile clowns are being proposed as principal officers who can exercise power only via the Article II, Section 2 procedure (as none of the named clowns currently holds an office that would entitle them to serve in an "acting" capacity pursuant to the Federal Vacancies Reform Act ). Since the abolition of the filibuster for appointments, only a simple majority in the Senate is required...

One occasionally hears the phrase "the best and the brightest" used without intentional irony to describe  people as highly qualified experts and thus likely to do an excellent job in some demanding positions. The phrase nonetheless carries a negative connotation ever since David Halberstam's book of that name, chronicling how the Kennedy and then Johnson administrations blundered into, and continued to blunder once embroiled in, the Vietnam war. In standard cocktail-party settings, Halberstam's The Best and the Brightest is often cited (frequently by people who haven't actually read it) for the proposition that expertise is no guarantee of practical competence. Although that proposition is true, it isn't actually the point of the book. Halberstam offered plenty of evidence that the decision makers--especially Robert McNamara--were of course smart and well educated but that they in fact lacked relevant expertise and largely ignored the reports and warnings of ...

[Note to Readers: Earlier this week, in " Respecting Trump Voters and Abstainers Must Include Viewing Them as Responsible for Their Decisions, Not as Helpless Children ," my analysis amounted to an answer to a simple (but never explicitly posed) question: Who is condescending to whom?  I do plan to write the promised followup to that column, but that will have to wait until next week.  Here, I offer a Classic (that is, rerun) column from early 2018 that is eerily similar to what I wrote two days ago.  Even those readers who have not read that more recent column -- but you all should! -- might find the discussion below from almost seven years ago to be surprisingly up-to-date.]   There is a sub-genre of political punditry that relentlessly promotes the idea that the balance of future political power in the United States depends entirely on Democrats reconnecting with the people who voted for Donald Trump.  And to do that, Democrats supposedly need to "unders...

I had expected to spend at least several days and possibly several months of the post-election period weighing in on the intricacies of the Electoral Count Reform Act, Article II, the Electoral College, and all of the other pieces of the Rube Goldberg machine by which the United States chooses a president. Had the outcome been extremely close, post-election challenges and counter-challenges would have brought echoes of 2000 and 2020. Even if the outcome had been decisive for Harris, there would have been much to discuss, because Trump wouldn't have conceded under any circumstances. However, because the outcome was both decisive and for Trump, Harris--a normal politician and decent human being--conceded. Thus, the election-law and related issues have been mooted for at least four years. That is not to say that there are no post-election issues that overlap with my expertise. In the last week, I have fielded questions from reporters, colleagues, students, family, and friends about th...

During the 2016 presidential election, I heard about a meme that went something like this: "I wanted a craft West Coast pale ale with citra hops and a crisp aftertaste, but this bar doesn't have that.  I shall thus drink battery acid."  The idea, of course, was that people were picking out one thing or another about Hillary Clinton that made them not want to vote for her, but they had no argument about why they voted for the toxic alternative that was Donald Trump. Of course, at the time, the background assumption was that Trump would lose badly in any case, so such votes for him would prove to be protest votes and nothing more.  Similarly, the large numbers of people who did not vote at all could hardly hide -- indeed, they were openly performing -- their sense of virtue in not sullying themselves with a Clinton vote, supposedly safe in the knowledge that other voters would do the dirty work of putting her in office. In 2024, Trump votes or non-votes were not protests....

After almost a week, many people are in still in shock. I have friends complaining of depression and grief caused by both fear of the next four years (or more) but also a more general disbelief that so many people in our country would vote for Trump and what he represents. I think many Americans are looking at this country quite differently than before last Tuesday. In 2016, it was about Trump. Today it is more about us. Here are a few serious, sarcastic, and quasi-humorous thoughts (I’m a law professor so I get to use the word quasi) about the election blended together. I think it’s fair to say the American left is mixed up right now and only time will help us heal and improve. I hope the way forward includes both a desperate sense of urgency and purpose as well as a commitment to civility and empathy. 1) No matter how hard it is, try to keep a sense of humor and perspective, and help others to do the same. A lot can change very quickly, as we just saw.  The political does not hav...

On election day and several times since, I have been asked by reporters what will happen to the criminal cases against Donald Trump now that he is president-elect. According to news reports , Jack Smith is planning to wind down his prosecutions before Trump takes office, perhaps to issue a report that Attorney General Garland could then make public. Should Smith decide otherwise, and persist in the prosecution, Trump would surely end his commission, although it would likely take a little longer than the "two seconds" Trump has promised. But just a little. The DOJ regulation that authorizes the appointment of a Special Counsel also states that the Attorney General, not the President, "may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." So Trump can't fire Smith, but anyone Trump appoints as Attorney General can and indeed would be justified in ...

Early yesterday morning, as I tried to recover after seeing the results of the US election, one of my first thoughts (after "Oh, no!") was: "Well, I was wrong."  After all, as recently as the day before, I had renewed my repeated-ad-nauseam prediction that Kamala Harris would seem to have won the election but that Donald Trump and the Republicans would exploit the weaknesses in the country's legal system to install Trump in the White House in January.  Not only did Harris not win the Electoral College, however, she did not even win the popular vote.  The one scenario that I had dismissed as too farfetched -- Trump winning outright on the night of the election -- had happened. It is true that this outcome is the same as it would have been in my predicted scenario, with Trump becoming President again.  And as a grim-but-real silver lining, at least this way the agonizing and harmful scenes that I had expected to play out over the next two and a half months will n...

Some years ago, I heard an interview with Anne Washburn, who wrote the book for Mr. Burns, a Post-Electric Play, in which actors in a post-apocalyptic world retain few cultural artifacts of the pre-apocalyptic world but manage to reconstruct and perform an episode of The Simpsons. Over time, the play within the play evolves and moves further and further away from the original Simpsons episode. I didn't get to see  Mr. Burns, a Post-Electric Play , but I recall from the interview that Washburn said, perhaps reciting a line one of her character speaks in the play, something like this: The one good thing about living in a post-apocalyptic hellscape is you don't need to worry that there could be an apocalypse . It's a great and memorable line, but it isn't really true. Bad as things are, they can always get worse. Bears can invade the cave in which you're living. You can run out of salvaged fuel for your generators. Raiders from the neighboring valley can attack you. So...

Yes, today is Election Day 2024, in the United States of America.  That means that one part of the campaign for political power is about to end, while a completely unprincipled campaign is about to begin, as Republicans go about installing Donald Trump in the White House in defiance of any vote counts.  There is a very small possibility that we will have a clear outcome in the next day or two, if it turns out that Trump seems to have won under the current rules.  But if Kamala Harris is deemed the winner -- and certainly if there are genuine doubts that require recounts and litigation -- the election will not be over potentially for a very long time, possibly extending beyond January 6 or even January 20, 2025.   It is worth noting that when Al Franken won his first (and, it turned out, only full) term as a US Senator from Minnesota in an election that ended on November 4, 2008, his razor-thin victory was not finalized until June 30, 2009, meaning that it took almos...