Dorf on Law

Last Friday, Dorf on Law published a guest post, " A Message to Students: Fight for Democracy ," which Professor Dorf described in his short editor's note as "an edited version of   Boston College Law Professor Kent Greenfield's   final lecture this past semester to his first-year constitutional law students."  Professor Greenfield began his remarks by noting that this is the end of his thirtieth year teaching law, but his lecture was "final" in the sense of being the last of the semester, not of his career.  Even so, reading his words has caused me to think about my final lecture in the more final, final sense. Before I get there, however, I do want to encourage everyone to read Professor Greenfield's message to his students.  It is inspiring, bracing, and entirely necessary to the moment in which we find ourselves.  His penultimate paragraph is clear: " So let’s fight. Let’s fight for our profession. Let’s fight for our democracy....

The Foreign Emoluments Clause of Article I provides that "no person holding any office of profit or trust under [the United States] shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." In various articles (including this one ), Professor Seth Barrett Tillman has argued that the clause restricts only persons holding appointments to offices created by statute and thus doesn't apply to the presidency. To my mind--and in the consensus view of the academy--that counter-intuitive conclusion is too counter-intuitive to stand. The framers had, and we have, more, not less, reason to worry about foreigners purchasing influence over the president than over every lowly government official. Accordingly, although Professor Tillman's arguments cannot simply be dismissed, I shall proceed here on the widely accepted assumption that the Presidency is an "office" within t...

  [Editor's note: The following essay is an edited version of   Boston College Law Professor Kent Greenfield's   final lecture this past semester to his first-year constitutional law students. It is   cross-posted at the WBUR website .] Today completes my 30th year teaching law. You’ve been wonderful this semester. Thank you. But It has been a difficult time to teach constitutional law, and it must have been a difficult time to learn it. We are in a dangerous moment. How do we make sense of the law right now? Of our profession? Lately I have been thinking about  Joshua Chamberlain , the Bowdoin professor-turned-Union army officer who led the 20th Maine Volunteers during the Civil War (and eventually became governor). On the pivotal second day of the Battle of Gettysburg, his regiment guarded the leftmost edge of the Union line atop a hill called Little Round Top. Union generals expected the fighting to be elsewhere that day, and the Maine men were few. But Confe...

Ruling in the law firm Perkins Coie's suit against the US Justice Department, Judge Beryl Howell granted summary judgment and declaratory and permanent injunctive relief for the plaintiff.  The judge's memorandum opinion was a bracing 102-page analysis of everything that is wrong with the executive order in question, which was one of the orders that directly punished lawyers for daring to practice law in a way that displeases Donald Trump and his minions.  She wrote: "Settling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the U.S. government or an American President." The ruling also received some well deserved attention for setting the record straight about Shakespeare's frequently quoted but completely misunderstood line, "Let’s kill all the lawyers," which is one of the oldest erroneous tropes in American politics and popular culture.  We have all heard that...

As Mark Kende explained here on the blog on Monday, President Trump's decision to allow entry to the United States of white South Africans as refugees--even as it denies such admission to thousands of Black and brown people facing persecution throughout the world--can only be described as racist. That's not to say that Trump admits the racism. On Monday, he said this : Farmers are being killed. They happen to be white. Whether they are white or Black makes no difference to me. White farmers are being brutally killed and the land is being confiscated in South Africa. It's true that most of the farmers who have been killed in clashes over land are white. But 45 percent ( 101 out of 225 ) of them are Black. Yet none of the new refugees is Black, and the executive order Trump signed authorizing the resettlement program is expressly for "Afrikaners" exclusively. Afrikaners are descended mostly from Dutch settlers and are white. Meanwhile, the South African land redis...

I copied the title of this column from the subject line of an email that landed in my inbox yesterday.  It is not quite clear why an organization that presumably views itself as upholding the highest standards of English usage chose the passive voice -- OK, maybe this was a "retention" subcontractor -- but to be clear, my Washington Post subscription was canceled by me .  I did it. On the other hand, at least the body of the email was coherent and clear: "We hope you’ll reconsider the value of the necessary and important work our journalists do to keep citizens informed. Absolutely nothing has changed about that. In fact, it’s more important than ever."  Thanks, but no. But is this not a very old story?  Back when Post overlord Jeff Bezos forced his editorial board to kill their planned endorsement of Kamala Harris for President last Fall, there was a rush to the exits as an estimated 300,000 people canceled their subscriptions.  That betrayal of the standard...

I spent the year 2000 as a Visiting Professor in South Africa. I worked with the framers of their new multi-racial democratic Constitution. Hope was in the air with the end of apartheid. But horror was in the recent past. Now President Donald Trump has brought a reminder of the horror. Other than Nazi Germany, perhaps the 20th Century’s most racist nation was South Africa with its system of apartheid. Though the country was less than 10% white and approximately 80% Black (including the intermediate category of "colored" the government used), whites removed any political power from Blacks, brutalized and beat Black people, took land and minerals, and limited where Black people could live to unfavorable Shantytowns. The global community of nations (except the U.S.), however, joined with Nelson Mandela's African National Congress and helped institute South Africa’s multi-racial democracy. But now President Trump has ignored this history and is helping white South Africans on...

In the whirlwind of constitutional questions, I want to return to the issue of impoundment. Impoundment refers to the President withholding or refusing to spend congressionally allocated funds. President Trump has sought to deploy impoundment--albeit in different terms--in a few different contexts , such as "paus[ing]" disbursements of funds pursuant to the Inflation Reduction Act for electric charging stations, "freez[ing]" foreign aid made through various congressional appropriations, and "paus[ing]" appropriated aid to nongovernmental organizations supporting immigrant populations--among others. As Professor Dorf has observed , such refusal to spend funds, whether the Trump Administration wishes to call it a "temporary pause" or whatever, is an impoundment under the Impoundment Control Act  (ICA). Passed in response to President Nixon's various impoundments, that statute prohibits presidential impoundment unless various substantive and pro...

Last week, thirty-three faculty at the University of Nebraska College of Law (myself included) sent a letter to each of the members of our State's Congressional delegation alerting them to our concerns that the rule of law is in peril. (Needless to say, this blog post is written in my individual capacity. It does not purport to represent the views of the University of Nebraska, its law school, or any of my colleagues.)   The letter reads: We are current or emeritus faculty at the University of Nebraska College of Law. (We each sign this letter in our personal capacities; our views do not purport to represent the position of the University of Nebraska or its law school.) We are Democrats, Republicans, and independents; we disagree with each other about many important legal and political issues. We have, however, dedicated our careers to teaching the importance of the rule of law and the role the law plays in sustaining our society.   We are concerned that the rule of law i...