Dorf on Law

One unanticipated blessing of being a policy nerd is that it is allowing me to turn my attention away from the ongoing rise of American fascism, at least for small amounts of time.  Today, therefore, I will not address Trump's militaristic display of dictatorial intent in Los Angeles, leaving that topic to other  Dorf on Law  columnists (starting with Mark Kende’s piece yesterday, and perhaps others yet to be written).  Here, I want to return to one of my favorite rant-inducing topics: debt and deficit hysteria.  Trust me, this will be comparatively soothing.  (And I've even received emails from readers asking me to write more often about economics, so you're welcome.) Two weeks ago (May 30), I asked (only semi-rhetorically): " Is It Time to Become a Deficit Scold? " Had I been in a better mood, I might have changed the title to: "Good Deficits Are Good - Duh!" I ran through the usual points that are mostly likely familiar to many long-time readers, ex...

On CNN , former Department of Homeland Security official, and conservative politician, Ken Cuccinelli echoed the Trump Administration talking points to justify National Guard deployment in Los Angeles. Normally, the Posse Comitatus Act, 18 U.S.C. Sec. § 1385 (1878), would not allow the federalized military to engage in ordinary law enforcement activities. Indeed, it makes use of the military for domestic law enforcement a crime. One major exception, however, is the Insurrection Act of 1807, 10 U.S.C. §§ 251-255 . That Act would need to be invoked to support Defense Secretary Pete Hegseth's outrageous suggestion that the Marines could be called in to supplement the Guard's presence. But for now President Trump is not using the Insurrection Act to deploy the Guard troops. Instead, he has federalized the National Guard under 10 U.S.C. § 12406 . This provision theoretically allows the National Guard to execute federal laws. Cuccinelli said that Guard enforcement implements our imm...

Here on the blog last week , I expressed puzzlement over the Department of Justice's investigation into allegations that the Harvard Law Review (HLR) has been practicing race-based and sex-based affirmative action for some of its membership slots and in its selection of articles for publication. I explained that Titles VI and IX of federal civil rights law don't apply to HLR because it is a separate entity from Harvard Law School and Harvard University. Under the case law as I read it, there are insufficient financial ties (essentially none) between those federally funded institutions and HLR to trigger federal civil rights law, and HLR itself does not receive any federal funds. I also explained that because HLR editors are unpaid and not "employees," Title VII also doesn't apply. A number of my fellow constitutional scholars (including Vikram Amar and Eugene Volokh) expressed to me the view that HLR might be covered by  42 U.S.C. § 1981 , which was enacted during...

Last Thursday, the 8th Circuit Judicial Council affirmed the Chief Judge's dismissal of a complaint filed against Judge Daniel Traynor. The order marked the resolution of the last of a flurry of complaints filed in the wake of a letter sent by thirteen federal judges to the president of Columbia University. Fourteen complaints. Five jurisdictions. All dismissed. The campus protests that erupted in spring of 2024 challenged many universities to respond. Those at Columbia University, in the melting pot of New York City, were among the most contentious. The university quickly became a political punching bag, attracting attention from numerous lawmakers on Capitol Hill, including Speaker Mike Johnson, who in April blamed the university for not cracking down on the protests. Not long after, a group of judges, led by culture warrior James Ho and the 11th Circuit's Elizabeth Branch, hopped on the bandwagon, sending an incendiary letter to Columbia University's president and the ...

If the current era of increasingly unalloyed fascism in the US and rising authoritarianism in too many places around the world is ever going to end and be replaced by an era of democratic and humanistic renewal, it will take years of work by everyone who wants to see a better world than the dystopia that the US and some other countries are becoming.  There are seemingly passive ways in which a regime might "collapse due to its internal contradictions," as some have said of the Soviet Union, but unless there are people who are willing to exploit those contradictions when the opportunity arises, repressive regimes will not simply fall spontaneously.  And even if that effort-free collapse were possible, the post-despotic renewal that everyone should desire can only become a reality through active engagement, not by sitting and hoping for the best. In the first part of my Dorf on Law column  on Tuesday of this week, I addressed the question of whether the people who flee a d...

The  NY Times recently reported  that the Justice Department is using a "cooperating witness" in its investigation of the Harvard Law Review (HLR) for alleged discrimination against white men. The Times article's primary focus is on the unusual circumstance that the cooperating witness--who was a HLR staffer until his graduation last week--is also now employed by the government and working for White House deputy chief of staff Stephen Miller. I want to put aside whatever ethical or legal issues that raises to focus on what might be the Trump administration's underlying theory of liability. The factual allegations are that HLR uses race and sex as criteria in selecting some of its members and articles for publication. Is that unlawful? The short answer is probably not. The long answer is . . . well . . . longer. (1) Title VII The Times article, citing a story in the Free Beacon , refers to "a 'pervasive pattern of racial discrimination' in hiring editors ...

There have recently been increasing reports about the migration of intellectuals out of the United States, along with a parallel decrease in foreign scholars moving to the US.  In the former category are three Yale professors -- Marci Shore, Timothy Snyder, and Jason Stanley -- who published a joint video on the op-ed page of  The New York Times  last month titled: " We Study Fascism, and We’re Leaving the U.S. "  They are all moving permanently to the University of Toronto, where I have been a visiting professor for the past two years. Indeed, my reasons for leaving the University of Florida (UF) in 2023 included the Yale trio's stated concerns about the scary trends in the US, which I had observed during the Florida Republican government's anti-intellectual dress rehearsal in the 2022-23 period (and which have only become worse since my decampment).  I explained my full set of reasons in some detail  here and here , shortly after I left not just the Univ...

Here's a recent social media post from President Trump: As the foregoing rant makes clear, the occasion for Trump's turn against Leonard Leo, some of the judges Trump appointed in his first term, and the Federalist Society was the fact that some of those people believe that the International Emergency Economic Powers Act (IEEPA) does not grant the president the authority to impose the sweeping tariffs Trump imposed. Given the Federal Circuit's stay of the ruling by the Court of International Trade, it is possible that Trump will eventually win this particular battle, although his social media post contains numerous falsehoods. Trump's tariffs were never going to bring in trillions of dollars, much less was any money from tariffs going to come "from other countries." And, of course, Trump's view of presidential powers reflects no familiarity with the Constitution. Even if one thinks that the IEEPA does grant Trump the tariff power he thinks it does, that wo...

One major goal of the American criminal justice is to provide the right balance between the burden on the prosecution and the defense. The U.S. has a presumption of innocence and a requirement that the prosecution prove guilt beyond a reasonable doubt. We have juries, and the vote for a guilty verdict must be unanimous . Overall this balance is uniquely pro-defendant. By contrast, even democratic France is pro-prosecution. Now, President Trump and his minions are changing the American rule of law to make it even more pro-defendant, but for the wrong reasons and in the wrong way. We now have a quid pro criminal justice system. Those who pay enough money, or contribute otherwise, to the Trump machine receive favors, pardons dropped prosecutions, or reversals where the government appeals on their side. These are generally rich people, not poor. The troubling pardon list is growing . We have long had a skewed system but it was usually based on harsh social realities for the poor, not gratu...