Dorf on Law

Onesideism and Bad Faith Arguments from the Right in US Politics

2026-04-03T14:58:00.000-04:00

I hope that this Friday is good for everyone. Or should I say Good? Anyway, pleasantries aside, this will be a relatively short column to end the week, focusing on what has come to be called bothsidesism, sometimes also known as false equivalence, a topic on which I have written frequently on this blog (most recently here).

More accurately, because the term bothsidesism was coined specifically to highlight a fundamentally dishonest political move -- "I'm bad for wanting to end democracy? Well, you once tried to get a parking ticket fixed by a friend at City Hall. Samesies!" -- I want to explore what we might call onesideism. The number of possible examples is enormous, but I will focus on only two here, one quite simple and the other slightly more complicated.

Have Democrats as a group, or even a large subset thereof, ever glommed onto anything similar to the "Obama is a Muslim" move by Republicans? It is true that John McCain, in the late stages of his losing presidential campaign against Barack Obama in 2008, did the right thing by pushing back against a supporter at a town hall who called Obama "an Arab" (which, to be clear, is the same as calling someone a Muslim only to people who have no idea how to keep their bigotries sorted into nationalist and religious lanes), McCain's answer was less than ideal: "No ma'am, he's a decent family man, citizen, that I just happen to have disagreements with on fundamental issues, and that's what this campaign is all about."

As an ABC affiliate put it (perhaps too) gently ten years later: "Though some have criticized McCain's response as furthering anti-Arab and anti-Muslim sentiments, the exchange came to be viewed as a defining moment in the senator's decadeslong political career." Consider me among the critics who think that "No, I know he's not an Arab because Arabs aren't decent family men or citizens" is less than ideal. Even so, it was a defense of sorts, and because McCain's running mate had been pushing the line about Obama "pallin' around with terrorists," it was notable.

But the point is that there is no equivalent on the Democratic side when it comes to creating a lie and absolutely refusing to let it go. The closest I could come to an example is the ongoing joke about J.D. Vance having sex with -- with, not on -- furniture. But that is something that no one (including the person who started it all as a joke) believes, and it is not intended as a statement of fact. Conspiracy theories about Obama, however, never seem to go away and are fervently believed by large numbers of people on the American right.

The larger onesideist point occurred to me the other day. I happened to be having lunch with a friend in Hyde Park (the one in Chicago), which of course made me think of all of the Chicago School-infused political, legal, and economic arguments that have done so much damage to policy in the US and the world at large for something going on a full century now. This happened to be the day after I wrote these words in my column on Tuesday of this week: "When I say, for example, that although I reject trickle-down economics, I would believe in it if the evidence ever were to show that it works the way conservatives say it works, I mean it. It is difficult to imagine being any other way."

The context of that statement was important, because I chose that as an example of something that I firmly believe -- trickle-down economic policies are terrible -- but that I could be convinced not to believe if the evidence supported changing my mind. Thinking about those people who believe (or claim to believe) in trickle-down economics notwithstanding the complete lack of supporting evidence, I had a snarky thought (and certainly not for the first time): "Well, isn't it convenient that a person who doesn't give a damn about non-rich people can hide behind trickle-down economics as a way to claim not to be elitist, cruel, or racist!"

The point is that someone can hold truly horrific views about the people who are less advantaged in society, blaming them for being lazy or morally defective and undeserving of anything better than their current lots in life, all the while hiding behind the claim that in fact giving tax cuts to rich people will eventually help everyone. "I don't hate poor people. I just know a better way to help them."

And when those stroke-the-rich policies fail to deliver for the umpteenth time, what then? "Oh, I thought it would work this time. I truly care. Bummer." I suppose one could imagine a person being sincere but ignorant (although that would have to be some seriously motivated ignorance), but certainly trickle-down mythology provides a convenient cover for people who view the harms to the non-rich of regressive redistributionist policies as a feature rather than a bug.

So that is one side. What would the equivalent accusation be against people like me? That is, how would a critic from the right frame a snarky response? "You say I'm secretly happy that my favored policies help the rich and hurt the rest, but you're secretly happy that your redistributive policies actually do something that you don't want to admit out loud." What would that something be?

The closest that I have ever heard to a counter-insult in that context is that people like me are "just jealous," which is to say that we care only about taking down successful people even if it did not help the non-rich. Put another way, "You hate rich people so much that you'd support Robin Hood even if he only stole from the rich and never gave it to the poor."

What is the source of our/my supposed hatred? Envy! Envy that other people are more successful, talented, or whatever. The problems with that claim are obvious, but the most basic error is that the supposed haters include large numbers (I daresay even a majority) who could have made large amounts of money but were simply not motivated by that goal. Nearly every liberal law professor I know could have gone the BigLaw route and made serious coin. Economists who are liberal could have gone to business school and cleaned up, and certainly large numbers of economists have monetized their Ph.D.'s in a big way. These are not people who envy other people's superior talents, to say the least.

More importantly, the accusation is off the mark because there are in fact reasons to favor the "half Robin Hood strategy" that I described above. Especially in the last decade, it has become clear that the social, political, and economic damage caused by rich people derives not only from hoarding and withholding "their" money but of rigging the system to make it impossible for them ever to be dislodged. If someone were to accuse a person like me of "being a tax-and-spend liberal because you want to hurt the rich, full stop," my response would be, "Well no, but that is hardly the zinger that you seem to think it is."

Am I saying that non-conservatives are morally perfect and as pure as the driven snow? Of course not. I am saying, however, that there appears to be no equivalent on the left of dodgy trickle-down nonsense, in which at best we know that the rich will get theirs up front while we cross our fingers and hope (or claim to hope) that everyone else will soon feel the warming trickle on their heads that has been promised so many times.

What makes the Trump era different, I suppose, is that we now see many people on the right who have become comfortable -- make that gleeful -- in no longer bothering even to hide their contempt for the "losers." Does that count as progress?

- Neil H. Buchanan

Is "Subject to the Jurisdiction Thereof" a General Principle or a Term of Art? Does It Matter?

2026-04-02T09:44:00.001-04:00

There was a curious apparent methodological reversal during yesterday's oral argument in Trump v. Barbara. At one point, Justice Alito asked ACLU National Legal Director Cecillia Wang, arguing for the plaintiffs/respondents, the following question:

When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up?

Later, Justice Barrett asked a version of the same question, and Justice Kavanaugh referred to it. I think Justices Barrett and Kavanaugh are unlikely to side with the Trump administration in this case but that Justice Alito is very likely to do so. The rest of his questioning made clear that he thinks that, at least when it comes to the meaning of "subject to the jurisdiction thereof" in the Fourteenth Amendment's Citizenship Clause, the answer is that the general rule applies also to later applications that might come up. Under this view, the Wong Kim Ark Court's list of people to whom the exception applies--the common law exceptions to jus soli for foreign sovereigns, ambassadors, warships, and occupying armies, plus children born into Native American Tribes--would be non-exhaustive. If we today face a new situation that falls within the general language of the exception, it too falls within that exception.

As Justice Kagan pointed out during the argument, this move can be at most partially successful. Although illegal immigration as we now understand it did not exist in the 19th century, the phenomenon of children being born to non-citizens who were transient visitors certainly did. I'm going to bracket that concern, however, for two reasons. First, the Trump administration has a different argument with respect to transient visitors: SG John Sauer contends that Wong Kim Ark was long understood as not conferring citizenship on them. I think he's wrong about that, but never mind for now, because second, I want to focus on the jurisprudential issue that is broader than this case.

My initial point is that we see in the dynamics of Justice Alito's question at least a superficial reversal of what we ordinarily expect as an ideological matter. Typically it is the conservatives who say that some constitutional phrase should be confined to what the framers and ratifiers understood it to cover, while liberals say that it should be construed to cover new circumstances as well.

However, that is a superficial reversal. In his initial question, Justice Alito invoked Justice Scalia for the proposition that conservatives can be good textualists/originalists while still giving effect to language in circumstances beyond those originally envisioned. He gave the example of a statute forbidding theft enacted long before the invention of microwave ovens. Nonetheless, Justice Alito said (that Justice Scalia said), obviously the statute applies to the theft of a microwave oven. So maybe there's no ideological reversal here after all. Maybe everyone believes that general language can encompass examples beyond those envisioned by the enactors.

Maybe, but also maybe not. After all, when Justice Gorsuch, writing for the Court in Bostock v. Clayton County, ruled that discrimination "based on . . . sex" as used in Title VII of the 1964 Civil Rights Act encompasses discrimination based on sexual orientation and transgender status, Justice Alito dissented, going so far as to accuse the majority of flying the flag of textualism even while committing the cardinal textualist sin of "'updat[ing]' [an] old statute[] so that [it] better reflect[s] the current values of society." So maybe Justice Alito is a hypocrite after all.

If so, are the liberals also hypocrites for their mirroring reversal? Why do they think that in just this one case a general phrase--"subject to the jurisdiction thereof"--is limited to what it meant at the time of the language's adoption?

I want to offer two means of resolving the puzzle.

First, I'll grant that it is often true that general constitutional language properly encompasses examples beyond those contemplated by its drafters and ratifiers. "Freedom of speech" includes emails and text messages. "Unreasonable searches" includes thermal imaging. Etc. However, not all seemingly general language is best understood as timeless general language. In some circumstances, what looks like timeless general language may be a term of art.

Consider the provision of Article III, Section 2, describing cases falling within the Supreme Court's original jurisdiction to include "all cases affecting ambassadors [and] other public ministers and consuls . . . ." The phrase "other public ministers and consuls" naturally covers U.S. government officials. However, as the Supreme Court tersely held a century ago in Ex Parte Gruber, the phrase applies only to foreign officials.

Or consider the view expressed by the majority in United States v. Stevens about the categories of unprotected speech such as fighting words, obscenity, and so forth. The Court described these as historically rooted exceptions. The theory seems to be that when the framers and ratifiers of the First Amendment decided to protect "the freedom of speech," they meant to protect speech subject to the exceptions then widely known and accepted but subject only to those categorical exceptions. Thus, new justifications for treating a category as unprotected are out of bounds.

To be clear, I don't think that's an accurate account of the prior cases involving unprotected categories. My point isn't that Stevens is right in this respect, but that the notion of constitutional language incorporating (either expressly or implicitly) known applications and exceptions but not future ones is a conceptual possibility that has been recognized in the Supreme Court's cases.

Accordingly, it is entirely possible that the original public meaning of the Fourteenth Amendment's phrase "subject to the jurisdiction thereof" covers exactly the exceptions known at the time and nothing else.

But second, even if that's not so--even if Justice Alito is correct that the phrase "subject to the jurisdiction thereof" could give rise to examples unknown in 1868 or 1898 (when Wong Kim Ark was decided)--the language should be unavailing to the Trump administration. That's because, as the respondents argue, the theory of all of the exceptions is that they refer to people and places that are conceptualized as extraterritorial even when they are physically present within the territory of the United States. The point is made very effectively in the amicus brief of Professor Akhil Amar.

Thus, even if there can be new applications of a principle embodied in the general language of "subject to the jurisdiction thereof," that principle would not encompass children born to undocumented immigrants or transient visitors because they do not implicate a principle of foreign sovereign bubbles within the territory of the United States. Justice Alito's question, though interesting as a general jurisprudential matter, is irrelevant to the outcome of this case.

-- Michael C. Dorf

RFK Jr. and Dr. Oz Double Down on Raccoon Penis

2026-04-01T07:00:00.403-04:00

Many legal scholars and others interested in the law, including me, will undoubtedly be paying attention this morning to the oral argument in Trump v. Barbara, the SCOTUS birthright citizenship case. You can find my latest Verdict column on the case. In the column, I defend birthright citizenship as a matter of fundamental principle, not just as a matter of the Fourteenth Amendment's meaning. I'll almost certainly weigh in on the case again after the oral argument (probably on Friday), but at this point it feels like everything worth saying by way of preview has been said. Accordingly, I thought I'd start the day off with a less weighty, but more bizarre foray into the latest news.

A forthcoming book about HHS Secretary RFK Jr. makes use of previously unknown private diaries to reveal all sorts of interesting tidbits, such as this gem: "In his diary, [RFK Jr.] writes about cutting off the penis of a road-killed raccoon in 2001, while his 'kids waited patiently in the car,' so that he could examine it later." The story just linked provides no further details about what RFK Jr. discovered upon examining the deceased procyonid's phallus, but it does helpfully add that "Google says raccoon penile bones are also known as 'mountain man toothpicks.'" Clicking on the link provided therein reveals additional intriguing facts, including this from a website called World Wildlife Products on a page advertising the sale of a raccoon baculum (a word I learned means raccoon penis bone): in 2004 "Sarah Jessica Parker and Vanessa Williams were both seen wearing raccoon baculum earrings."

There the RFK Jr. raccoon penis trail (as it were) runs dry--or at least it did until Monday, when an intrepid reporter asked Dr. Mehmet Oz, the Administrator for the Centers for Medicare & Medicaid Services, whether he knew what his boss learned from his raccoon penis inspection a quarter of a century ago. Dr. Oz answered:

Raccoon penis has been used in Chinese medicine for millennia. Together with tiger bones, bear bile, pangolin scales, and rhino horn, ground up raccoon penis, even when taken in microdoses, holds considerable promise in treating everything from kidney disease to macular degeneration to erectile dysfunction.

Within hours, Wei Hui, the current president of the American Traditional Chinese Medicine Association (ATCMA), released a statement expressing disagreement:

Raccoon penis has not in fact been used in traditional Chinese medicine. Raccoons are not even native to China. (Raccoon dogs are, but they are unrelated.) Although Dr. Oz is correct about the other products, they have not been part of traditional Chinese medicine for decades. ATCMA members are at the forefront of protecting endangered species, and many are against all use of animal products.

There the matter seemed to have come to rest, except that yesterday morning HHS Secretary Kennedy posted a thread on X announcing a new initiative to "leverage alternative and traditional cures [that] do not rely on hopelessly conflicted big pharmaceutical companies and insurance companies." Among the "therapies" that RFK Jr. said would be "studied, promoted, and funded" was "raccoon baculum powder as a therapeutic in combination with a carnivore diet and ferments." The tweet did not say what this therapy would aim to treat. Later that day, and bypassing all required procedures, Dr. Oz announced on X that "effective immediately" Medicare Part D plans would be required to cover "raccoon baculum" if prescribed for "moderate macular degeneration" or "idiopathic erectile dysfunction."

Needless to say, Dr. Oz's statement is legally problematic, and not just procedurally or because there is no scientific evidence to support the use of raccoon baculum for any medical purpose. As Professor Lewis Grossman told the NY Times, "Medicare Part D can only cover FDA-approved drugs. Needless to say--and I can't believe I'm saying this out loud--raccoon baculum is not FDA-approved." Animal rights and animal protection groups are also opposed to the program. Animal Legal Defense Fund (ALDF) Executive Director Chris Green announced that his organization is "looking into litigation options to prevent this cruel and wholly unnecessary program."

Despite all of those issues, however, blocking Medicare coverage for raccoon baculum could be challenging. Swinging into action almost immediately, Professor Josh Blackman took to the Volokh Conspiracy to write "Rocky: Watch Out" (a title that appears to be a reference to the Beatles song Rocky Raccoon). There he argues that "neither raccoons nor animal rights organizations have standing to challenge" decisions regarding Medicare Part D coverage.

Professor Blackman does not discuss the possibility that a health insurance company that offers a Medicare Part D plan and does not wish to include raccoon baculum in its formulary would have standing. Perhaps he's right not to discuss that possibility: major insurers might be willing to absorb the cost of paying for raccoon baculum to avoid incurring the president's wrath with respect to other matters of greater financial importance. That seems especially likely if, as Dr. Oz suggests, microdoses are at stake.

I couldn't find any information on the Internet about what a regular dose of raccoon baculum would be as treatment for either macular degeneration or erectile dysfunction, but MAHA-inflected social influencer Vani Hari (the self-proclaimed "Food Babe") wrote on her blog that "you can literally derive at least 20,000 microdoses of medicine from a single raccoon penis." From my perspective, that's one raccoon too many to sacrifice for dubious benefit, but I do understand why health insurance companies would not choose raccoon penis as the hill to die on.

Meanwhile, in addition to the regulatory issues, there is a lurking Free Exercise question, at least according to a very short but punchy essay that Professors Stephanie Barclay and Richard Garnett posted late last night on SSRN. While "bracket[ing] the question whether raccoon baculum is an effective modality for any medical purpose," they argue that pursuant to "the most-favored nation rule of Tandon v. Newsom, Dr. Oz was obligated to approve it for medical uses condoned by traditional Chinese medicine--which is rooted in Taoism, a religion for First Amendment purposes--so long as the government allows any secular uses of raccoons, including as pets or for meat." Anticipating an objection along the lines articulated by the ATCMA, they add that "it doesn't matter whether raccoon baculum is part of actual traditional Chinese medicine; free exercise protects idiosyncratic as well as orthodox beliefs."

I would like to say that Professors Barclay and Garnett are mistaken, but their analysis strikes me as in line with recent free exercise precedents. If that proves to be true, then you'll have not only RFK Jr. and Dr. Oz but also the Supreme Court to thank, or more likely to blame, when your ophthalmologist or urologist prescribes raccoon penis.

-- Michael C. Dorf

"Will Self-Criticism Save Colleges?" Is This a Joke?

2026-03-31T15:19:00.224-04:00

Imagine that you regularly receive notification after notification asking you to upgrade from an unpaid subscription to "premium" or some such thing on an app, a streaming service, or some other joyful convenience of modern life. Yes, I know that this strains credulity, and perhaps I am the only person who receives such persistent messages. No one ever complains about such things, right? But please stay with me.

After receiving a flood of such messages trying to get them to pay for supposedly superior service, a person might think: "Gee, I'm tired of these messages, but they won't go away. But wait! Maybe if I finally give in and buy it, this will all stop happening, right?" If you are a person who would harbor such a hope, you might be a Democrat. You also might be an academic. Allow me to explain.

Giving in and buying the product will obviously not stop the onslaught. In fact, it will make matters worse, because you have now revealed yourself as someone who falls for an upsell. There is also a decent chance that your name will be added to a list that other marketers will use to target suckers -- er, "suggestible" people. The marketers do not say, "Oh, that's nice. They said yes, and I'll leave them alone from now on." They salivate while saying, "Wow, that idiot paid for our crappy Premium package! Time to offer them super-premium, then super-duper-premium, then diamond premium, then elite ultra-premium with a cherry on top. Let's bleed 'em dry."

Why am I analogizing this to Democrats and professors? Because both (and of course there is meaningful overlap of the two groups) have demonstrated over time that they think that giving an inch means giving an inch, full stop, which means believing that the party that has taken an inch will say, "Oh, that was reasonable of them. How lovely! We can all get along now."

This was, after all, the fundamental idea behind the self-devouring Democrats who first created the Democratic Leadership Council in the 1980's, then took over the Clinton Administration (getting the new president to drop any pretense of being an actual Democrat), and then spent the ensuing decades telling everyone that the best strategy is always to give more ground. The mantra of the Clintonian "triangulators" was, in essence, "Republicans say we suck, and to be fair, we do. Maybe they'll be nice to us if we act more like them."

How did that go? The Democrats-shouldn't-dare-acting-like-Democrats crowd soon created multiple conservative groups (masquerading as non-conservatives) with names like Third Way. Get it? Because heaven forbid that we align with one of the two existing ways. Democrats? Ick! By the time of the 2020 election cycle, they had pushed the party so far to the right that it was easy for many Democrats to say, "Well, Ronald Reagan had it right when [fill in the blank]," and mean it. Only three weeks ago, The American Prospect (very much not a triangulation magazine) ran a piece with the brilliant headline: "Centrists: Better Things Aren’t Possible," with the telling sub-headline: "Third Way’s strategy session for Democratic moderates lacked any vision other than a hatred for progressives."

And did Republicans reward Democrats for moving their way? No, they simply kept moving further to the right, becoming more openly bigoted and authoritarian, and going from calling Democrats "pathetic" to accusing them of being "groomers." One can almost hear the Biden types thinking to themselves: "But I was so reasonable and told them that they had a point! I never imagined that they would then move on to accusing my side of being child sexual abusers. Why did my accommodating and fair-minded demeanor not win them over?"

The answer is, as it has always been, that Republicans are bullies who not only smell weakness but revel in exploiting it. Both Clintons, Obama, and Biden -- along with the other Democratic nominees whom the triangulators deemed acceptable, like John Kerry and Kamala Harris -- said over and over again that they were reasonable Democrats, by which they meant that they would ignore their own voters in pursuit of some mythical swing voter somewhere. Did Republicans respond by treating the Clintons, Obama, or Biden with respect during their years in office? No. No, they did not.

On the academic side of things, it is a deeply ingrained belief among professors that every accusation should be taken seriously. Years ago, I started dating a woman who was not a professor, and after a few weeks of getting to know each other, she said something like this:

You know, every time I ask you a question about yourself, you first tell me why it might be reasonable to think five bad things about you, only to finally get around to saying that none of those things are true -- probably. The answer to, say, "Are you going to tell me the truth?" should be "Yes," not "Well, I have to admit that there are circumstances in which even honest people might not tell the truth, and although I hope you'll believe me that I'm honest with you, it would be entirely understandable if you thought otherwise." Just stop it!

In general, I think academics' default move toward saying, "Well, to be fair ...," should be a good thing. If I thought otherwise, I would not be so ready to go there in almost every situation. Self-reflection is not only a productive habit, but the alternative to self-reflection is in the extreme being unwilling to brook criticism or ever change. When I say, for example, that although I reject trickle-down economics, I would believe in it if the evidence ever were to show that it works the way conservatives say it works, I mean it. It is difficult to imagine being any other way.

But what happens when this "to be fair" default goes meta? That is, what happens when academics say about academia, as the triangulators do about liberal Democrats, "Well, it's true that we suck"? Do we see a meeting of the minds? No, we see a feeding frenzy on the right as they destroy the very people who hand them the tools to criticize academia.

I was thus not surprised, but still depressed, when I saw the headline that I reproduced in the title of this column -- "Will Self-Criticism Save Colleges?" -- on the March 9 Newsletter of the Chronicle of Higher Education. The first article in the newsletter was: "The Self-Flagellating President: Higher ed finds new critics — in the mirror," with this sub-headline: "More campus leaders are openly agreeing with some right-wing complaints about the sector, and making the case that change will help restore public trust."

Again, this muscle-memory reaction springs from a good place. Being open to criticism is indeed healthy. The problem is that the criticism to which the self-flagellators are agreeing is some combination of utter nonsense and hyped-up anecdotes repeated on a loop. The same people who claimed that "cancel culture" was destroying campuses are now lining up to say, "And look, even those liberals admit that it's true." That will not "restore public trust." It will give critics ammunition to tell the public, "See we told ya so!"

Has self-criticism led to a meeting of the minds? Of course not. It merely creates more momentum in the wrong direction, to the point where Maya Krishnan, a philosophy professor at the University of Chicago, felt the need to write: "Why It’s So Hard for Professors to Say Anything Good About Academe: Against the cheap fashion of denigrating our institutions."

Yet it is not people like Krishnan who are being given the biggest megaphone. Even though The Chronicle did publish that piece, that magazine is in the midst of a veritable orgy of negative coverage of its own subject, to the point where the magazine is now touting Harvard's Danielle Allen as "Academe's most interesting reformer," gushing that Allen "is far stranger than the label ‘moderate’ might suggest. She seems irresistibly drawn to difference, disagreement, competing ways of representing the world." And then: "If you read one thing about higher education this week, make it 'Can Danielle Allen Save Academe From Itself?'"

I did read it, and it is drivel, but it is precisely the kind of self-flagellating drivel that lights up the eyes of people who like to congratulate themselves by saying, "Well surely some self-criticism can only be a good thing, right?" To be useful, criticism has to have substance, and other than the constant repetition of how academia is too something, there is nothing there. Academia does not have to be saved from itself but from hucksters who give ground until there is no ground left to defend.

Are there real-world consequences to this? Of course there are. This is why the American right is gleefully shredding the country's higher education system, which had long been one of the US's most valuable assets. The self-criticism is not taken as the intellectually honest exercise that it is presumably intended to be. It is used as ammunition.

For example, on March 20, the Trump Department of Justice sued Harvard, trying to claw back about a billion dollars of grant money and to cancel all legally required payments of future grants that have been memorialized in existing contracts. As Professor Dorf's column here last Wednesday explains, the complaint asserts that Harvard falsely assured the government it was complying with Title VI when in fact (according to the complaint), Harvard was indifferent to and actively engaged in antisemitism.

I cannot add to Professor Dorf's analysis (or if I could, I see no need to gild that lily), but the point is that the Trump lawsuit against Harvard is an outstanding example of the perils of self-criticism. In fact, most of the alleged evidence of antisemitism cited in the complaint is drawn from a self-critical report that Harvard itself created.

Obviously, people and institutions should be open to new ideas and the possibility of change. Even so, the atmosphere within which higher education now finds itself is about as predatory as one could imagine. One side is saying, "Yeah, we suck, so we'll try to do better," and the other side is saying, "No, everything you could ever do sucks, because you just admitted that you suck. Our goal has always been to destroy you, so thanks for making that easier for us, losers."

And now, I will respond to an upgrade request from a streaming service. That will solve everything.

- Neil H. Buchanan

Broccoli, Birthright Citzenship, and How to Confront Terrible Constitutional Arguments

2026-03-30T07:00:00.009-04:00

In the Spring of 2012, the most publicly discussed constitutional law question of the day was whether the Supreme Court would strike down the Affordable Care Act. The justices had scheduled three days of oral argument--an unprecedented event in modern times. There were numerous issues in the case but almost all the attention was focused on whether Congress had the power to require Americans to buy health insurance under its Article I authority to regulate “commerce among the states.”

Virtually every liberal law professor to discuss the issue publicly thought the answer was easy: health care and health insurance were trillion-dollar industries affecting the commerce of every state and among the states. Moreover, there is not a syllable in the Constitution prohibiting Congress from using economic mandates to regulate commerce. Most pundits agreed. The wonderful Dahlia Lithwick told me that she would publicly eat my book Supreme Myths if the Court said the law was beyond Congress’ commerce clause authority and struck down the law.

I was a lone voice arguing that, unless the Obama Administration dramatically changed its prior litigation strategy, the Court would likely accept the absurd argument floated by conservatives that if Congress had the power to require us to buy health insurance, it could also mandate that we buy broccoli. It turns out that I was right about that prediction even if I failed to see that Chief Justice Roberts would change his mind at the last minute and uphold the mandate as a valid tax even though he joined the other four conservatives to conclude that the commerce clause could not justify the mandate (an impossibly wrong decision based on text, history, and precedent).

My prediction had nothing to do with law, and law had nothing to do with the Court’s ultimate decision. Whatever drove Chief Justice Roberts to save the statute (though an important part was invalidated), and whatever drove the conservatives to invent out of nothing a “no mandate” limitation on Congress’ commerce clause authority, law played at best a minimal role.

I have speculated that one of the reasons Roberts voted to uphold the law as a tax was that up to that point in time he had never voted with the liberals in a 5-4 constitutional law case, and at the time the Court was considered by most commentators to be the “Kennedy Court,” not the Roberts Court. That trope changed dramatically after the case was decided. Whether my lay psychology explanation is valid is not the point. What is important is that predictions before-the-fact and explanations after-the-fact need to go well beyond legalisms.

Last week, JD/PhD student Pranjal Drall and Professor Samuel Moyn of Yale Law School co-authored a three-part blog post on Balkinization comparing the lead-up to the absurdly stupid broccoli argument and this week’s birthright citizenship case, which the Court will hear on Wednesday (I am going to talk about only Moyn because I am not familiar with Drall's prior work. You can find parts 1, 2, and 3 of their blog post here, here, and here, respectively.).

There is much to discuss about these posts but I want to focus on what I think is Moyn’s central concern: liberal scholars when faced with absurdly bad legal arguments in important constitutional law cases should seriously consider not engaging with those arguments because these kinds of decisions are much more about the politics and personal values of the justices than law. Moreover, by engaging with these frivolous arguments on the playing field of legalism, liberal scholars may actually move those contentions, in Jack Balkin’s words, from off-the-wall to on-the-wall. Moyn wrote the following:

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway…and perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

Moyn named numerous law professors in the piece, including my colleague Anthony Kreis as well as Jed Shugerman, Paul Gowder, and Evan Bernick. All four, among many more (like Yale’s Akhil Amar, also discussed in the post), have written publicly about the obvious weaknesses of those arguing that Trump’s Birthright Citizenship Executive Order is or even might be constitutional (it is not under the law). Bernick responded on social media wondering what Moyn actually wanted them to do in the face of such misleading accounts of text, history, and precedent:

The notion that it is somehow inconsistent to 1) claim that the anti-birthright arguments are meritless and then 2) refute them on the merits, is just wrong. “I can’t believe I’m here. These arguments suck. Here’s why” is entirely consistent. The idea that [the defenders of the Executive Order) needed my help to get their arguments taken seriously is also wrong. I engaged precisely because I saw that they were being taken seriously and I did not want them to march unopposed to the Supreme Court.

This debate is about a fundamental question raised by an overly aggressive and obviously political Supreme Court. What is the best way to fight objectively weak legal arguments which may well be accepted by the justices for political or ideological reasons? Moyn’s central thesis is that liberals should seriously consider refusing to play on the field of text, history, and precedent because those factors will not deter the justices from making decisions based on other factors. Bernick counters that leaving that playing field altogether will undoubtedly make it easier for the Court to adopt bad legal arguments. I suspect he, as well as most other legal academics, also believe that their job is to “set the record straight,” as part of their job descriptions and in the scholarly pursuit of clarity and truth. After all, when the Court embraces inaccurate history, more damage is done than just a bad result in a single case. That faulty history lies there to be misused in the future. This disconnect from reality, for example, has been a serious problem for lower court judges and others in the Second Amendment context.

Similar issues have arisen among anti-originalist liberal scholars over whether they should play the “originalism game” in amicus briefs and legal scholarship. It is well-accepted on the left that the justices only use originalism when doing so is consistent with their prior beliefs about how a case should be decided. Will pretending originalism really matters help move the Court away from bad decisions or should we just refuse to play the game because, as the broccoli fiasco demonstrated (and there are many other examples such as presidential immunity and voting rights), the justices will do what they want to do regardless of the merits of legal arguments. Why tacitly accept a mode of reasoning that is both absurd and likely irrelevant to how the Court ultimately decides cases?

These are important questions to discuss. One does not have to be a core legal realist to accept the idea that politics and values matter a lot to the Supreme Court (and obviously not just to the conservatives). But it is also true that presenting nakedly non-legal political arguments to the justices might alienate them even more, as will telling them that originalism is stupid and hopelessly biased against women, people of color, and religious minorities. Moyn would likely respond that it is better not to engage at all with the justices and try to use other political means to further desired outcomes.

But Supreme Court litigation and constitutional law scholarship do not have to be zero-sum games. There is space to make both kinds of arguments. There is room for litigators and scholars to suggest that the Court is using the wrong metric (originalism) to resolve constitutional questions while at the same time marshalling the best arguments using the tools the Court prefers. When doing either, however, it is imperative to also understand who the justices are as people and appeal to them in any way that is ethical, even if that appeal is not framed in traditional legal terms.

In the end, I agree with both Moyn and Bernick, and there may be more common ground between them than might appear at first blush. Manipulating text, history, and precedent, combined with an understanding that those factors rarely carry the day in important constitutional cases, is the landscape legal scholars have to navigate if they want their arguments to be both taken seriously and have maximum impact. Balancing which approach should be emphasized will depend on the particular case and the issues and facts presented.

It is likely that Moyn would respond that the suggested approach will not lead to serious change and serious change in how the Court operates is desperately needed to help return us to a functioning democracy (a lot more would have to happen of course). He may not be wrong. But Bernick and others would likely say that in responding to hopelessly bad legal arguments, scholars should not forget their appropriate role, which is seeking the truth, not bringing the entire system down.

I wrestle with that conflict regularly as someone who thinks the Supreme Court is a terrible institution no matter the politics of the justices who happen to be in power at any given moment. My tentative answer, which Moyn probably won’t like, is to chip away at the artificial structures of constitutional law that hide the true reasons for the Court’s decisions while at the same time doing whatever is possible to minimize the likelihood of bad Court decisions which have terrible consequences. That is often a hard line to discern, but reforming a government institution housing life-tenured officials with almost unreviewable power is no easy task. Maybe those who (like Moyn and me) want to bring it all down, and those who want to stave off or at least minimize bad decisions, should work together instead of against each other and continue this difficult and important debate. That would be at least a good place to start.

Eric Segall

President Trump’s Birthright Citizenship Executive Order: Too Much Detail, Too Little Authority -- Guest Post by Scott Titshaw and Stephen Yale-Loehr

2026-03-27T07:00:00.001-04:00

There are three categories of birthright citizenship recognized around the world. Two of these, citizenship based on place of birth and citizenship inherited from parents at birth, have roots dating back hundreds of years. The third category, hybrid citizenship rules, evolved in the twentieth century.

The United States recognizes inherited citizenship for children born abroad to U.S. citizens, but it has always relied primarily on birthplace citizenship. For over a century, the Fourteenth Amendment of the U.S. Constitution has, with limited exceptions, granted citizenship to everyone born in the United States. Congress assumed this simple birthright citizenship rule when it enacted and later amended the Immigration and Nationality Act (INA). That assumption now permeates our immigration and citizenship statutes.

This reliance on birthplace citizenship is now being questioned. On the first day of his second term, President Trump issued an Executive Order that would overturn this simple rule and replace it with a complex hybrid citizenship scheme. On April 1, the Supreme Court will hear arguments in Trump v. Barbara about whether the Executive Order is legal.

Because the Executive Order is such a bold departure from a national consensus dating back to the nineteenth century, courts and scholars have focused on the text and original meaning of the Citizenship Clause and the INA provision codifying it. But the Executive Order itself would face overwhelming problems even if the Citizenship Clause and the INA were less clear.

Too Much Complexity

Our traditional birthplace citizenship rule focuses on a simple answer to a single question: Was a person born in the United States? If the answer is yes, the child is a citizen. If the answer is no, the child is not a citizen.

The Executive Order eliminates this simple rule to invent a new hybrid citizenship regime, focusing on the parents of “persons born in the United States” and raising a slew of additional questions: What citizenship or immigration status must parents have for their children to qualify? Who counts as a parent in this context? Does it matter if children were born in or out of wedlock? Is there a distinction between the required status of mothers and fathers? What status(es) do U.S.-born noncitizens have?

The Executive Order recognizes the “privilege” of citizenship for U.S.-born children only if their father is a citizen or has lawful permanent residence (a “green card”) or their mother is not “unlawfully present” or in a “presence” that is “lawful but temporary.” The Department of Homeland Security and State Department have tried to explain what this language means, but the technical line-drawing is all based on modern immigration law classifications beyond anything the framers of the Fourteenth Amendment contemplated in 1868.

Among other things, the Executive Order would disqualify children whose parents are in lawful immigration status as students, investors, or temporary workers. For instance, Indian engineers or scientists with approved green card petitions may work legally in the United States for many years while waiting in the line of massive green card backlogs for applicants born in India. Yet their U.S.-born children would not be citizens.

Complicating things further, the Executive Order and agency implementation plans discriminate in the status they require for fathers as opposed to mothers. The children of noncitizen mothers who are asylees or refugees, for example, would be citizens, but the children of asylee or refugee fathers would not. This raises equal protection problems.

Because of its focus on the parents of persons born in the United States, the Executive Order was compelled to decide who counts as a parent. It could have used state definitions of family relationships. Or it might have adopted the federal definitions used for children born abroad who inherit their parents’ U.S. citizenship. But it ignored both.

Instead, the Executive Order reinvents family relationships. It ignores whether the child was born in or out of wedlock and defines the child’s “mother” as “the immediate female biological progenitor” and the “father” as “the immediate male biological progenitor.” Only genetic parents appear to count. These new definitions ignore age-old marital presumptions of parentage that are still generally recognized under state family law. They also ignore parents who use modern reproductive techniques involving donated sperm or eggs. Even if their non-genetic but legal parents are citizens, U.S.-born children may not be. Even if both parents are U.S. citizens, if neither is the child’s genetic parent, the child born on American soil would not be an American. Perversely, the same child born to the same parents abroad could qualify for citizenship under existing law.

Too Little Authority

Taken as a whole, the Executive Order creates a complex modern hybrid citizenship rule similar to those adopted in the United Kingdom, Australia, and Ireland since the 1980s.

There are valid arguments for reconsidering U.S. birthright citizenship rules like lawmakers and voters did in the United Kingdom, Australia, and Ireland. But that national conversation should not be short-circuited by an Executive Order.

Our Constitution delegated enumerated powers to Congress, the President, and the courts. Citizenship is so important that the Constitution defines it in the Fourteenth Amendment. Article I of the Constitution delegates to Congress the power to create other citizenship rules. No one has delegated such power to the President.

The United Kingdom and Australia followed the legal requirements for changing their citizenship rules through proper legislation. Because the Irish Constitution, like ours, mandated birthplace citizenship, the Irish held a referendum and amended it.

The Irish did it the right way. If Americans want to change our birthright citizenship law, we must amend our Constitution as well.

--- Scott Titshaw is a professor of law at Mercer University School of Law. Stephen Yale-Loehr is a retired professor of immigration law practice at Cornell Law School.

Examining the Urge Among Insecure Men (and Some Women) to Inflict Pain on the Weak and Defenseless

2026-03-26T17:08:00.002-04:00

In recent months, I have again become obsessed with (and depressed by) the phenomenon of self-styled manly men exulting in acts of cruelty. As the Trump immigration crackdowns spiraled out of control, one of the most notable aspects of right-wing propagandists' response was their vulgar desire to ridicule and dehumanize their victims, all the while delighting in the spectacle of the ugly meanness of it all.

Kristi Noem (aka "ICE Barbie") may be gone, but the image of Noem standing in front of caged prisoners in El Salvador -- prisoners who had received no due process, meaning that she (and we) could not possibly know whether they were guilty even of immigration violations (which are civil, not criminal, absent additional facts) -- is permanently etched into my mind as an example of how toxic masculinity can metastasize and be embraced even by non-men. Worse still, rather than claiming that what was happening in that photo was somehow not terrible, Noem's social media accounts luxuriated in the cruelty.

There is more than a passing visual resemblance between the Trump Administration's "Look at how we're kicking these weak people's butts!!" posturing and the photo of Trump's eldest son on a safari holding up the tail of an elephant he had killed. It turns out that someone at Forbes in 2012 wrote a piece defending Junior that crossed the line into hagiography ("And Donald Jr. certainly has the good looks Hollywood would cast as the careless son of an American magnate. However, his reputation is clean. He’s a hardworking family man."), which is high comedy in its own right, but this line stands out in the context of what I am discussing here: "Donald Jr. points out, the leopard they hunted in Zimbabwe was not endangered, and they didn’t hunt any of the animals in an unethical way." (Yes, leopard. The elephant was not the only animal he killed.)

To be clear, there is a spirited argument among vegans and animal rights philosophers about whether outrage against hunting is the best use of anyone's energy. After all, the sheer numbers of animals being tortured and killed in factory farms is many orders of magnitude greater than the numbers of animals killed by hunters on any given day. I begin with a "Why not oppose both?" attitude that I concede is not fully responsive, but that discussion is not relevant here. My point is that it is revolting that people think that killing animals in big-game hunts is an enjoyable sport. In that 2012 piece, Trump fils mouths platitudes about hunting as environmental stewardship and even says this:

[H]unting isn’t about killing. Nature actually humbles you. Hunting forces a person to endure, to master themselves, even to truly get to know the wild environment. Actually, along the way, hunting and fishing makes you fall in love with the natural world. This is why hunters so often give back by contributing to conservation. ...

[W]hen I was growing up and other people I knew were getting into trouble, I was somewhere in a deer stand or going to bed early so I could be up before dawn to hunt turkeys. My love of the outdoors kept me solid.

So that explains why Donald Trump, Jr. is such a solid citizen today? Because he got up early, killed turkeys (even though "hunting isn't about killing"), and loved the outdoors? Sure thing. And if one is worried (as Trump Jr. also claimed to be) about the destructive overpopulation of certain animals, the question is why we should respond to that problem by having a bunch of amateurs run off to prove how tough they are by using high-powered rifles to "best" terrified animals.

It is notable that the Wikipedia page for "canned hunts" -- the horrific practice of putting animals in constricted areas, often drugged so that they will put up minimal resistance to the "sportsmen" who pay to kill them -- begins with this: "A canned hunt is a trophy hunt which is not 'fair chase.'" So the non-canned hunters feel that they are morally superior because they only give fair chase, meaning that they can use modern technology to run animals into exhaustion and then kill them, if their expensive high-tech rifles cannot do the job first?

Why would an environmentalist who is merely helping local populations in Africa control their animal populations then stop to pose for photos? Why hunt for trophies, for chrissakes? Again, how different is what Noem was doing last March from all of that, as she smirked in front of her prey after a ridiculously unfair hunt? Or what of Pete Hegseth sneering about the killing of scores of people on the open sea, including people who were clinging to wreckage and were then murdered in cold blood?

"No quarter" is a war crime for obvious reasons, but Hegseth was not fired, admonished, or even challenged by Trump Sr. or anyone in his orbit after saying that "[w]e will keep pushing, keep advancing, no quarter, no mercy for our enemies." Like Noem, Hegseth flaunts his thirst for carnage rather than hiding it. As Democratic Senator Mark Kelly put it:

“No quarter” isn’t some wanna be tough guy line - it means something. An order to give no quarter would mean to take no prisoners and kill them instead. That would violate the law of armed conflict. It would be an illegal order. It would also put American service members at greater risk.

Notably, Senator Kelly and some of his congressional colleagues drew Trump's ire after committing the horrible sin of reminding US military personnel that they should not violate the law: "This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. ... Our laws are clear. You can refuse illegal orders." Of course, Trump and his team want to prosecute those military and intelligence veterans for "sedition." Of course.

But my main interest here is in the enjoyment and celebration of unfair fights by these overgrown bullies. As I reluctantly conceded in a column last week, I experienced in my (early) adult life a moment in which I willfully exploited a physical advantage over a child while playing pickup basketball. To be clear, I did not in any way harm the boy, but I did in that moment get a jolt from blocking the shot of someone who was at least a foot shorter than I was. So I have felt it -- whatever "it" is -- but I also felt shame and then went about the business of becoming a better, more fully mature adult.

At some point, "running up the score" says worse things about the victors than it does about their over-matched opponents. In last year's Wimbledon final match, Iga Świątek defeated Amanda Anisimova in a historic 6–0, 6–0 rout. It was an astonishing thing to watch, but as Anisimova crumbled, Świątek did not gloat or preen. She was gracious in victory, finishing the match as quickly as possible (against an opponent who was not obviously inferior prior to the beginning of play that day) while showing that she was not enjoying someone else's pain. Why do I find it difficult to imagine anyone in Trump's world even being able to conceive of such a thing?

Again, I do know that there is something visceral that might be sitting inside even people who are not Hegseth-like in their day-to-day lives. But when I wrote above that I "gratuitously" exercised my advantage in that basketball game, I could have added "and pointlessly." What exactly does one get, after all, out of proving what anyone with eyes would already know? A 6-foot-1 adult man can block a 5-foot boy's basketball shot. A man with an expensive enough rifle and the right kind of ammo can kill any animal. A team of ICE agents can rappel from helicopters and smash into an apartment building filled with unarmed innocents. People who look or sound Hispanic can be rounded up and put in a gulag. War machines can kill people in boats.

Also, men have the ability to physically abuse their wives and children. Rich and powerful men have the ability to go to the island of a sex trafficker and force children to do things that children should never be forced to do. Stronger people can physically dominate weaker people for their own (twisted) pleasure.

What does any of that prove -- or more pointedly, why does it seem to make the people who are doing it feel like manly men? It is no accident that they reserve especially cruel treatment for trans people, who are among the most powerless people in our society. That these bigots then piously claim that it is the trans people who are the true abusers of innocent children (which deliberately conflates being trans with being a sexual predator, which is a vicious lie) is especially rich in a world where the bigots do nothing about people who have in fact abused innocent children. They themselves are sometimes the ones who have inflicted the abuse.

In a column discussing toxic masculinity a few years ago, I referred to "(the needlessly gendered) [aphorism that] 'a man never stands so tall as when he stoops to help a child,'" adding: "The idea is that growing up and being good involve learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others."

But as I noted in a column that I re-posted here two days ago, the cruelty brigade that is currently laughing about its ability to engage in wanton cruelty toward the weak now seems to reject the very notion that "being good" is a real thing. They mock non-cruel people and accuse us of being performative, that is, of "virtue signaling." It is not possible in their minds, it seems, to imagine that some people are not inhuman monsters. Trumpists take pleasure in harming innocents, so they insist that the people who are not sociopaths are faking it. Rather than trying to learn how to live in a civilized world, they insist that civilized attitudes are a lie.

They are wrong. No matter how much they might want to believe that they are not uniquely awful, they are. Other people are not saints, but at least we try to protect the weak from the predations of emotionally damaged barbarians.

- Neil H. Buchanan

What's Wrong With The Trump Administration's Lawsuit Against Harvard

2026-03-25T07:00:00.023-04:00

Last week, the Department of Justice filed suit against Harvard University, alleging that Harvard is violating Title VI by failing adequately to respond to antisemitism and by itself intentionally discriminating against Jews and Israelis on the basis of race and national origin, respectively. The complaint alleges, in addition to the claims under Title VI, that Harvard is in breach of the contracts for its federal grants because, as part of those contracts, Harvard provided assurances that it was in compliance with Title VI. The government seeks declaratory and injunctive relief, including a declaration that Harvard is not entitled to future payments on existing grants and must repay past grant awards for the period of alleged violation.

The lawsuit is problematic in multiple respects. This story in the Harvard Crimson (in which I'm quoted a number of times) does a nice job of explaining some of them. I'll focus attention on three of the issues here.

(1) As readers may recall, this is not the first legal battle between the second Trump administration and Harvard. In September of last year, Federal District Judge Allison Burroughs granted Harvard's motion for summary judgment, finding that the Trump administration's withholding and cancellation of various federal grants to Harvard based on alleged Title VI violations were unlawful in two main respects: (a) the federal government failed to follow any of the key steps required by statute (42 U.S.C. § 2000d-1) to withhold funds; and (b) the government's actions violated the First Amendment as retaliation, coercion of Harvard's own speech, and an effort to coerce Harvard to violate the free speech rights of students and other third parties.

That ruling is currently pending on appeal before the First Circuit. It is possible it could be reversed in part or in whole, but unless and until that happens, the government's latest lawsuit looks quite a bit like an effort to re-litigate issues that were already decided against it.

(2) The government will likely argue that this new lawsuit is not precluded by the earlier summary judgment because it comes after an investigation and a determination that, in the words of 42 U.S.C. § 2000d-1, "compliance cannot be secured by voluntary means." However, it appears that the government still has not conducted an investigation in accordance with the statutory requirements.

To be sure, the complaint claims that the administration followed a few of its statutory obligations. Paragraphs 8 and 9 respectively state that the Department of Health and Human Services (which makes and administers substantial grants) provided Harvard with notice that it had opened an investigation on February 3, 2025, and with notice of its findings on June 30, 2025. Conveniently omitted from that timeline is the fact that in between, and without adhering to the statutorily mandated procedures, on April 11, 2025, the Trump administration sent Harvard a letter demanding federal control over admissions, hiring, governance, and more.

That omission severely undercuts the new complaint’s assertion that it is authorized by the fact that the Trump administration “has determined that compliance cannot be secured by voluntary means,” as required by 42 U.S.C. § 2000d-1before resort is made to funding cutoffs. For one thing, the administration initially cut funds long before any determination that compliance could not be secured by voluntary means. For another, it is noteworthy that most of the allegations in the government’s new complaint are taken from a report by a task force Harvard itself convened to assess its response to antisemitism and anti-Israeli bias. The production of that report and the follow-up measures Harvard has taken are hardly consistent with the Trump administration’s portrayal of Harvard as indifferent to antisemitism and anti-Israel bias. Moreover, the fact that the government relies so heavily on Harvard's own report strongly indicates that it did not conduct any kind of thorough investigation of its own.

(3) Nor can the Trump administration be taken at its word that voluntary compliance cannot be secured. Negotiations have apparently stalled, but that hardly means that Harvard is unwilling to comply voluntarily with Title VI. Rather, it mostly indicates that Harvard is unwilling to accede to all of the additional conditions that the Trump administration is demanding—including the payment of tribute or ransom wholly unauthorized by any statute and the sacrifice of institutional autonomy. I would not be surprised to see a judicial conclusion that the government has been negotiating in bad faith and thus that its determination that voluntary compliance cannot be obtained is legally invalid.

* * *

Some of the foregoing is adapted from a portion of a statement I submitted yesterday to the U.S. Civil Rights Commission. As readers may recall, last month I testified at the Commission's hearing on campus antisemitism and the Trump administration's response. (I published an unfootnoted version of my original written testimony here on the blog; the hearing can be viewed here.) Late last week, the Commission sent me a couple of follow-up questions. The statement I submitted in response answers those questions and also takes the opportunity to supplement my oral response to a question that a Commissioner posed to me and the other panelists: whether Congress should incorporate the International Holocaust Remembrance Alliance definition of antisemitism into federal law.

No Such Thing As Virtue? (a retitled Dorf on Law Classic)

2026-03-24T15:10:00.002-04:00

Note to readers: Due to extenuating circumstances, I’m unable to post a new column today. Because I plan to write again about toxic masculinity at least once in the near future, I am republishing here a column on that sadly timely subject that I first published just short of three years ago. More to come.

- Neil H. Buchanan

Complaints About "Virtue Signaling" Amount to Claims that There Is No Such Thing as Virtue

By Neil H. Buchanan - March 30, 2023

One of the most obvious strategies that Donald Trump uses is to accuse other people of doing or being exactly what he is doing or being. He tries to cheat people, so he accuses everyone of trying to cheat him. He will stop at nothing, so he claims that his opponents will stop at nothing. He is a racist, so he calls Democrats -- even (especially) non-White Democrats -- racists. He peddles hatred of all kinds, so he says that everyone else hates him and his supporters.

As in so much else, however, this too is a matter in which Trump is merely acting like Republicans have always acted -- only more shamelessly. That is, this is yet another way in which Trump is not a break from the Republican Party but merely its most noxious logical next step. He lacks almost all of the restraints and minimal niceties that have characterized the rest of his party in the post-Civil Rights era, because he does not bother with cover stories, whereas Republicans spent decades perfecting their feints, nods, and winks with terms like "urban" and "thugs" and "strapping young buck" (turning "welfare" into code for "giveaway to lazy minorities"), and so on.

Republicans (especially as the former Southern reactionary Democrats moved en masse to become Republicans in the 1980's and 1990's) have very much been in the business of projection as a political strategy. In my Dorf on Law column on Tuesday of this week, I referred to their adolescent tendency to say, in essence, "I know you are, but what am I?!" This is more than merely trying to get ahead of their opponents, however. They seem simply incapable of believing that anyone can be a good person, so rather than trying to be less bad, they puff up their chests and say, "What, you think you're better than me?" Despite its toxic effects, thinking about this can be somewhat amusing.

Tuesday's column included, among other things, a discussion of whether men who decry other men's toxic masculinity are merely being opportunistic and trying to gain social approval by saying, "Look at me, I'm a different kind of man!" One way in which I have heard that accusation made, which did not come up in the course of that column, is some conservative men's suspicion that liberal men have simply landed upon a sneaky strategy for getting women to have sex with them.

I need not repeat the uglier language that one often hears in such conversations, because this "clean" assertion/accusation captures the essence of it: "Man, you guys have it figured out! If I could fake sincerity like you can, I'd be getting it more than ever. Smart move, if you can stomach pretending to believe that sensitive-guy crap." Again, this reflects the toxic male's refusal to change, combined with an insistence that no one else is truly any different from the worst of their ilk. Anyone who is not doing exactly what toxic males do is supposedly engaged in a long con, a dishonest act of the most cynical kind.

Having spent my life as a straight, cis man who identifies as a feminist and who often spends time with people of all identities who espouse similar views, I can say that toxic masculinists are hardly the only people who have noticed that it might be possible to "fake it" for such self-motivated purposes. Certainly, women are plenty aware of that threat. (Some women claim that men cannot truly be feminists at all, but that is a different matter and has nothing to do with the version of sexual predation at issue here.) Indeed, one of my daughters told me that she and her friends in college referred to a specific type of college dude: "the Nice Guy T M" (as in TradeMark), or what my generation referred to more bluntly as the f*ck-me-I'm-so-sensitive type.

So no one is being fooled. If toxic masculinists think that faking sincerity is a uniquely effective path to the bedroom, they are showing yet again that they do not understand any of this. In short, they think that women are simpletons, and they think that every other man thinks that women are simpletons, too. When toxic masculinists' lives do not go as they would prefer, they lash out and say that everyone else is being performative and getting something unfairly -- in this case, casual sex.

Which brings us to the relatively recent pejorative coinage known as "virtue signaling." Like its close cousins "political correctness," "cancel culture," and most recently "woke," this is a vague concept that would only have an identifiable meaning if applied in a nonpartisan, non-ideological fashion. Conservatives send out signals to show that they have the correct views all the time. Think: red baseball hats with white letters emblazoned across the front. When it is no longer possible for Republican senators to disagree with the false claim that regressive tax cuts pay for themselves, we have conservative political correctness driving policy. When extremely conservative politicians are "primaried" for daring to condemn Trump's lawlessness, we have conservative cancel culture. When Republicans tell each other that they have to stop sleeping on their responsibility to stop the "weaponization of the federal government," we have conservative wokeness. Indeed, that particular mindset is much broader, as in: Wake up, sheeple!!

And virtue signaling? As above, liberal men are supposedly merely trying to look good to a target audience by mouthing the right phrases. Meanwhile, every conservative feels the need to say something like, "My pronouns are lab/leak/conspiracy." Nothing being signaled to a target audience there!

But again, there is nothing new here among conservatives. They have been virtue signaling forever, not because they hold objectionable views (or not only because of that) but because social interactions are always a matter of communicating through signals. What makes them different is that they want to convince other people (and themselves) that their views are not objectionable at all -- not because they can claim with a straight face that, say, allowing marital rape is "no less enlightened" than opposing marital rape but by asserting that those who oppose it are simply full of crap.

The difference with Trump is in the timing, with his provocations used in advance to neutralize claims that will surely be leveled against him. Before his opponents are able to say a word, he has degraded their forthcoming criticisms. That is not to say that Republicans and conservatives before Trump's rise had never done anything similar, only that Trump does it nearly constantly. It is a highly effective way to muddy the waters. If Trump calls people radicals, fascists, and so on, what can his opponents do? "No, you'reradical. You're a fascist!" At worst, it becomes a matter of turning the discussion into playground taunts, but at its most effective, it takes away Trump's opponents ability even to level honest charges.

Trump's reactions to the various prosecutions that are bearing down on him provide the most recent examples of this. He calls Manhattan District Attorney Alvin Bragg a radical and a racist. He also, however, calls Bragg an "animal," which is not a matter of anticipating what his opponents might say about him but is instead part of his own racism, where he leans into some of the ugliest efforts to dehumanize Black people. I should hasten to add that Professor Sherry Colb would have been the first to say that Trump should only wish that he (or any other person) is more like a non-human animal, because it is in our differences from other animals that humans are at their worst.

Indeed, Trump would take it as a compliment, but it might be the most profound insult to him to say that he exhibits everything that is wrong with being too little like an animal -- no loyalty, no caring, no selflessness. We sometimes mistakenly conflate "monsters" and "animals," but the best way to think of monsters is as the mythical beings that embody all of the negative traits that we wrongly attribute to non-humans. Except that Trump is non-mythical. As he might say: sad.

For what it might be worth, my prediction is that at some point soon, either an old recording will emerge in which Trump is heard using the n-word, or he will actually say that word live on a hot mic (or maybe even in full voice at a rally). At that point, he will insist that there is nothing wrong with that slur (because he never admits to being wrong about anything), and his supporters will -- after a few days of looking around nervously to see what is happening -- breathe a huge sigh of relief and start saying it (in public) again themselves.

In any event, it is worth remembering that it was long, long before Election Day in 2020 that Trump started to lay the groundwork to steal the election. All the while, he said that his opponents were trying to steal the election. Even if many people did not believe that Trump was innocent, the idea was to get people to say that "they're all the same." What, you think you're better than me? You're no better than me! And when Republicans say, for example, that Democrats are hypocrites who engage in gerrymandering even as they condemn Republicans for gerrymandering, they try to win either way: Democrats can either unilaterally disarm or agree that gerrymandering is not a bad thing. Everything else is empty virtue signaling.

Interestingly, it is American conservatives who have been most exercised over the years about moral relativism, claiming that the left has no moral absolutes and that there truly are standards to determine what is right and wrong. Laws are there to express those views, and they should be enforced. Yet when it comes to laws that they do not like, they claim that the law cannot be used to change what people do. If guns are outlawed, only outlaws will have guns; so one imagines that if murder is outlawed, only murderers will kill people ... which is somehow a reason not to outlaw murder?

But the claims from the right about virtue signaling and the rest are a concession that their own views are unpopular and indefensible. They have nothing to say about solving real problems in people's lives, so they target vulnerable people for even harsher treatment. Then, they call people who oppose Republicans' anti-trans legislation "groomers." When Black people finally started to say out loud that the US seems to treat black lives as expendable and insisted that Black lives do in fact matter, the right responded by saying that all lives matter or that Blue lives matter. It is all a strategy of distractions and claiming that dominant groups are being unfairly treated.

Certainly, the longstanding cries from the right about reverse racism fit this pattern. Any change in White privilege is not a matter of undoing injustice but attacking innocents. A young conservative father, pointing to his toddler son, looked at me recently and said with great sincerity: "He's going to have a tougher time in life than anyone, because he's a White male, and society is making life for us impossible." Any attempt to present simple facts about racial and ethnic differences in the US regarding life expectancy, childhood mortality, access to education, lifetime earnings, and so on is just "woke nonsense." Unearned privilege knows where its power comes from, and it defends itself by pretending that any change in the world is a matter of giving unearned privilege to others.

Question: Why change one's views when it is so much easier to claim that everyone else is just as bad as you are? American conservatives' response to that question is: Why indeed!

- Neil H. Buchanan

Afroman Is The Free Speech Hero We Need

2026-03-23T07:00:00.001-04:00

After Timothée Chalamet's beef with opera and ballet, the best relatively harmless recent story to divert us from more serious news has to be the triumph of Joseph Foreman, better known as Afroman, in his defense against a civil lawsuit. Readers unfamiliar with the tale could do worse than to watch Jordan Klepper's Daily Show segment on the case. For those of you who don't have the time to watch the video just linked, I'll start with a synopsis.

Afroman is best known for his 2000 hit song and music video Because I Got High (featuring Jay and Silent Bob of Clerks fame). In 2022, heavily armed officers in combat fatigues from the Sherriff's office of Adams County, Ohio raided and searched Afroman's home. They didn't find evidence of anything but they caused some damage and were caught on video surveillance in a number of unprofessional positions, including one officer who looked longingly at a lemon pound cake in Afroman's kitchen. Afroman, understandably upset about the invasion of his home, responded with a number of satirical music videos that incorporated his surveillance camera footage of various of the officers.

The videos include Will You Help Me Repair My Door?, Lemon Pound Cake, and Why You Disconnecting My Video Camera, in which Afroman accuses the officers of racism and corruption, while also making an obviously false-and-not-intended-to-be-taken-seriously claim about having had sex with the wife of Sergeant Randy Walters. ("Randy Walters private cop. I used to fuck his wife doggy style." The Daily Show segment includes a snippet of another video, Randy Walters Is a Son of a Bitch, in which Afroman sings "Randy Walters is a son of a bitch. That's why I fucked his wife and got filthy rich.")

Seven officers sued Afroman in state court, alleging that the videos were defamatory, subjected them to false light publicity, and appropriated their images for commercial purposes. The trial judge dismissed the commercial appropriation claim but permitted the other claims to go to trial. Last week, the jury returned a verdict for Afroman--and for freedom of speech--on all claims by all plaintiffs. That verdict is undoubtedly correct, but the case raises two interesting questions.

First, why there was even a trial? Why didn't the judge dismiss all the claims before trial? The Daily Show segment does a good job in a short time of demonstrating the absurdity of the defamation claims. It makes clear that Afroman was not seriously alleging that he had sex with the wife of Sergeant Waters, that Waters himself did not believe the allegation, and that no reasonable person could believe it to be true either. And that's enough to avoid civil liability for defamation. A statement that is clearly intended as a joke, opinion, or hyperbole simply can't be defamatory because a defamatory statement is a false statement that harms reputation, but a statement that is plainly not intended to be expressive of truth is necessarily not false. So far as the law is concerned, it does not have a propositional value.

The trial judge also should have dismissed the false light publicity claims. Consider the Supreme Court's 1988 decision in Hustler v. Falwell. Hustler magazine published a parody ad (of a then-popular series of ads) in which Jerry Falwell was portrayed as having lost his virginity "during a drunken incestuous rendezvous with his mother in an outhouse." Falwell sued Hustler, alleging intentional infliction of emotional distress (IIED). The Supreme Court unanimously disallowed liability. Chief Justice Rehnquist, speaking for the Court, explained that the same First Amendment doctrine that restricts liability for defamation also restricts liability for IIED claims based on speech about public figures.

To be sure, Hustler involved an IIED claim, but the key point of the case is that plaintiffs cannot evade the limits the First Amendment places on defamation liability by pleading other related causes of action. If that's true for IIED, it's equally true for false light publicity--as the Court said much earlier, in Time v. Hill in 1967.

Hustler involved Jerry Falwell, a public figure, whereas (at least prior to this case) Randy Walters was not a public figure. However, Walters was a public official, which makes Afroman's defense all the stronger. The Supreme Court in New York Times v. Sullivan held that the First Amendment imposes limits on defamation claims by public officials. Only later did the Court extend those limits to suits by public figures. The core of the doctrine is its application to public officials because the core of free speech is the right to criticize those who exercise power in the public's name. And Afroman's music videos plainly do just that.

Second, why did the plaintiffs bring this case? On cross-examination, the officer caught coveting the pound cake stated that he had suffered insofar as some people now call him "Pound Cake" and send him pound cakes. Needless to say, that has led to considerable mockery. Other officers appear to have suffered more serious consequences due to online trolls, etc., but even so, the principal impact of the lawsuit was the "Streisand effect," whereby the plaintiffs have called a whole lot more attention to Afroman's music videos than there would have been had they not sued. Perhaps that would have been a price they thought worth paying if they won a verdict and judgment, but given the odds that they would lose, gambling on a victory while ensuring certain widespread ridicule was an odd choice.

* * *

Parties who offer free speech claims or defenses to vindicate constitutional rights are often quite unsavory. Hustler magazine is crudely misogynist. The protagonist in the leading case establishing the limits on incitement liability was a racist and antisemitic Klansman. Civil libertarians nonetheless support their causes because important principles are at stake. Important principles are at stake in Afroman's case as well, but one need not hold one's nose in supporting his cause. As NPR reported:

"I didn't win, America won," Afroman, 51, told reporters outside the court, dressed in his American flag-patterned suit, tie and aviators . . . . "America still has freedom of speech. It's still for the people, by the people."

The people hope you're right, Afroman, and we thank you.

Does Bruen Insanity Violate the Tenth Amendment?

2026-03-20T07:00:00.092-04:00

Since the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, I have written numerous blog posts and essays criticizing the opinion’s “insanity.” In Bruen, the Supreme Court invalidated a 1911 New York gun law on history and tradition grounds. More important than the specific result in the case, however, was the Court’s announcement of a brand new test to establish the validity of modern gun laws.

In an opinion written by Justice Clarence Thomas, the Court decided that contemporary gun legislation can only be upheld by judges if the government points to similar laws passed either in 1791 or 1868. The Court rejected the traditional and historically justified balancing approach the Court uses to decide most constitutional law cases, whereby the justices weigh the importance of the asserted right against the government’s justifications for the law. I have described this new framework as follows:

The Court’s decision in Bruen is not steeped in text, history, or precedent. At the founding and in 1868 when the Reconstruction Amendments were ratified, judges in constitutional litigation routinely used a balancing test to determine the validity of state and federal laws. It is likely that one motivating factor for the Bruen text-and-history-only method was the Justices’ fear that the public safety impacts of gun laws will always be relatively easy to see and will often outweigh the asserted gun right in the case. But that is exactly how the interpretation of the Second Amendment should proceed.

We should not be seeking answers from a society hundreds of years removed from today when weapons were much weaker than they are today, urban areas far less populated, and society in general so different. Even assuming that District of Columbia v. Heller correctly found an individual right to own guns separate from militia service, that right, like all constitutional rights, is not absolute and can be limited in the name of an important public good. A bad actor cannot legally yell “fire” in a crowded theater (unless there really is one), and similarly a bad actor should not be allowed to bring a lethal killing tool inside a crowded theater if a town, city, or state so desires. The Bruen decision, however, likely takes that decision out of the hands of elected leaders and places it in the hands of unelected, life-tenured judges. And that method of keeping our country safe is, quite simply, constitutional insanity.

In a provocative new article forthcoming in the University of Chicago Law Review titled “Bruen’s Tenth Amendment Problem,” Professors Jake Charles and Jonah Gelbach put forth a new critique of Bruen that has not been previously articulated by the many scholars who have strongly lamented the Court’s rationale. In their article, the authors suggest that Bruen violates the Tenth Amendment to the United States Constitution because it divests the states of a power that was reserved to them by that Amendment. The authors argue that legislative choice (whether or not to enact a law) is a power reserved to the states and not given to the federal government. Bruen’s holding that contemporary gun laws that do not have analogues either in 1791 or 1868 are invalid violates the states’ reserved power to not address problems in a legislative manner. The authors summarize their arguments as follows:

In Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before.

Although I am not completely persuaded by the authors' ultimate Tenth Amendment argument for reasons discussed below, I highly recommend this article for its blistering criticisms of the Bruen test. Whether or not Bruen actually violates the Tenth Amendment as currently applied (the authors put forth helpful suggestions to reduce the current insanity of the test), the authors' federalism concerns are persuasive and should be used by legal scholars to further criticize the history and tradition only test the Court invented in Bruen.

The Tenth Amendment provides the following: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The essential idea is that states retain all powers that are either not given to the federal government by the Constitution or prohibited by the Constitution to the states. The states have no authority to enact laws that violate the Second Amendment, however, so it is a bit difficult to see how the Tenth Amendment is violated if states act in ways that the Court deems to be inconsistent with the Constitution. If the authors are correct, it may be that every time the Supreme Court interprets the Constitution to limit state power in ways that critics think are wrong, the Tenth Amendment is violated. If so, the authors' analysis is just another way of saying that the Court should interpret the Constitution correctly; otherwise the Court is acting improperly.

For example, in Janus v , AFSCME, the Court held that states violate the First Amendment when they require their employees to pay partial union dues whether or not they belong to the union. Many scholars believe this decision erroneously interprets the free speech clause and limits state authority in a manner inconsistent with federalism principles. Does that mean Janus also violates the Tenth Amendment? And, even if it does, what does that conclusion add to the analysis?

But it is also possible that Bruen's history and tradition only approach is unique in how the Court's constitutional interpretations raise Tenth Amendment concerns. The conservative justices are essentially taking away a power the states should have for all time, the authority to enact legislation or not, and converting that power into a "use it or lose it" power that is forfeited unless it was exercised long ago. I do not think the authors believe that every Court decision that erroneously limits state power violates the Tenth Amendment, but I would have liked a bit more discussion of that issue. The states whose powers were wrongfully limited by the Court in Janus, and the states that for decades argued that Roe and Casey were wrongly decided, also likely thought that those decisions were at least inconsistent with, if not violative of, the Tenth Amendment.

Nevertheless, Bruen is an intolerable decision creating mass chaos in the lower courts. It also erroneously interprets the Second Amendment in ways that violate traditional federalism principles. Critics of the opinion should use every reasonable weapon at their disposal to undercut Bruen and end the insanity it has caused. To that end, I highly recommend reading “Bruen’s Tenth Amendment Problem,” by Professors Jake Charles and Jonah Gelbach.

-- Eric Segall

Oh Good Gravy! College Presidents Are Now Directly Firing Professors

2026-03-19T14:32:00.000-04:00

I drafted this column's headline more than six months ago, but I never actually wrote the column to go with it. Although the content of today's column covers more than the specific problem noted, I still like the headline enough to stick with it. A more boring, accurate headline might be: "Republicans Continue to Prove That They Never Cared About Intellectual Diversity," or something like that.

In any event, the news story that inspired today's headline was "Texas Professor Fired After Accusations of Teaching 'Gender Ideology,'" with the subheadline "Two administrators also lost their posts at Texas A&M, an example of how Republican policies meant to curb liberal ideas are reaching into university classrooms," which The New York Times published on September 10, 2025. That article reported that

Texas A&M University swiftly fired a lecturer and removed two administrators after a student filmed herself arguing with the instructor that a children’s literature course broke the law because the coursework recognized more than two genders. ...
Mark Welsh, Texas A&M’s president, said he terminated the instructor, Melissa McCoul, and removed the dean of the College of Arts and Sciences and head of the English department from their posts. ...
Gov. Greg Abbott said, in a post on social media responding to the video of the classroom at Texas A&M, that the teaching of gender depicted in the class was “contrary to Texas law.” But it was not clear what law Mr. Abbott was referring to. A spokesman for the governor pointed to the termination letter sent to Dr. McCoul that did not directly allege any violation of state law.

That story broke less than a month after I wrote "The Grim March Toward Enforced Right-Wing Groupthink in US Universities," here on Dorf on Law. There, I quoted the recently ousted President of the University of Florida's disingenuous claim that "[t]he culture of ideological conformity and monoculture at [American universities] is unhealthy not just for them, but for the nation at large." Monoculture. Check. I then argued that

the Trumpian right is no longer trying to set up alternatives to the elite institutions that they have habitually smeared. Instead, they are now busily remaking everything to fit their idea of what a university is supposed to be. Which is? A true "monoculture" in which even to be in favor of, say, diversity is a fireable offense, and where teaching about systemic racism (or really about bigotry of any kind) is potentially criminal. For all of their complaints about non-conservatives' supposed intolerance of opposing views, these people are the most intolerant snowflakes imaginable.

Although I did in fact call that one correctly, I am not going to take much of a victory lap, because it has long been obvious that this was the true agenda on the right. And sure enough, the news on the higher education front in the six months since that incident at Texas A&M has been littered with more stories about summary dismissals of non-compliant professors and other staff, while Republican-led states around the country have been falling all over themselves to enact laws making it illegal to say anything in a classroom that would bother a Trumpist true believer. Texas A&M even managed to make the news again in January:

Over the past six years, Leonard Bright has provoked hours-long discussions in his graduate-level “Ethics of Public Policy” course about the thorniest corners of contemporary politics: What is critical race theory? Is DEI dividing America? Should transgender athletes be allowed to compete in women’s sports?

So when Bright, a professor at Texas A&M University’s Bush School of Government and Public Service, received an email earlier this month from a department head asking when and how he planned to teach about sexuality in the course, and whether he planned to advocate for race ideology, he knew he was in for a frustrating back-and-forth.

Under a new Texas A&M systemwide policy, professors are not allowed to advocate for race or gender ideology or teach about topics related to sexual orientation or gender identity unless they can prove to administrators that it’s required for accreditation or career preparation.

After a series of sharp and, at times, combative email exchanges, administrators decided last week to cancel his class.

They say Bright was being uncooperative.

In an interview with The Chronicle, Bright said administrators were using arbitrary definitions of “advocacy” and “controversial content” in their course reviews. Classroom discussions, he said, are impromptu and impossible to predict.

But one-by-one enforcement of right-wing viewpoint monoculture is laborious and takes time. How to speed up the assembly line to make sure that every university in every red state has a flattened intellectual life? One of the more shameless strategies to enforce the new groupthink is the creation of "civics" centers within universities. My most recent academic home, the University of Florida at Gainesville, has one such center, and the person who created it then moved to the University of Texas-Austin as provost. That once-great university now has one as well.

There is no longer even a robust attempt to say that they are not in the business of hiring conservatives, not just at Florida and in Texas but elsewhere. In my column last week describing how violence is becoming more and more acceptable on the right, I pointed out that the thuggery had recently spilled over into higher education. At The Ohio State University, a newly hired professor in the "Salmon P. Chase Center for Civics, Culture and Society," attacked a reporter who had the temerity to try to ask a question after a speaker had said that he would take no more questions. A New York Times news story about the incident noted that the violent professor's "listed areas of expertise include the ethics of war and international human rights [and] is among the roughly two dozen academics on the Chase Center’s faculty." The article then added this regarding The Ohio State's center:

The state government created the center with the budget that was signed into law in 2023 to “conduct teaching and research in the historical ideas, traditions and texts that have shaped the American constitutional order and society.”
The law says the center’s mission includes educating “students by means of free, open and rigorous intellectual inquiry to seek the truth” and affirming “the value of intellectual diversity in higher education.” Republican politicians across the country have championed such centers, arguing that they can promote free debate and Western values on campuses that they believe have become hubs of liberal ideology.

Except of course there is no free debate about anything at those centers. It is all about being performatively anti-lib. Indeed, the professor in question decided to turn himself into an ad hoc bouncer at a speaking event by The Ohio State's former president, Gordon Gee, because Gee had been asked questions about Jeffrey Epstein.

(Aside: There have been calls to strip former Victoria's Secret owner Les Wexner's name from some of The Ohio State University's facilities, because Wexner had come up prominently in the Epstein files and was subpoenaed last month to testify before a congressional committee. In response, Gee predictably argued that "[t]his is the cancel culture gone wild." But wait. I thought cancel culture (which is a hyped-up myth, but stay with me) was supposed to be bad because it made students on campus feel marginalized. It is thus interesting to see that yelling "cancel culture" is the muscle-memory response from conservatives, even when the issue is a donor's ties to a convicted sex trafficker.)

Meanwhile, earlier this month we learned that North Carolina's heavily gerrymandered super-majorities in its state legislature also created a "School of Civic Life and Leadership," and it is not going well. The university paid $1.2 million for an outside investigation of the school, but the university now claims that it is not allowed to release the results. What was the problem?

Lee H. Roberts, the university’s chancellor, announced the investigation in September, as the school found itself mired in controversy over its hiring practices and other issues. [Dean Jud] Atkins was publicly accused by several former faculty in the school of inappropriately strong-arming job searches, ignoring the input of inaugural faculty for a number of external hires. ...
Public scrutiny of the school began long before the contentious faculty searches. When the school was originally announced in 2023, by a unanimous resolution passed by the Board of Trustees, many faculty and community members were taken by surprise.
Its founding was spearheaded by the university’s now-former provost, Chris Clemens, an outspoken conservative who helped write the initial proposal for the school to the legislature.
The school opened its doors in August 2024, soon announcing 11 new external hires in addition to an original slate of nine adjuncts. Four of the inaugural instructors left within months, some upset with how it was being run.

This is, in short, a sketchy new world that can barely maintain the pretense that it is anything other than a new reactionary monoculture. And it is being created by using a very old trick. During the intellectual battles over the future of economics departments in the 1970's and 1980's, for example, some universities created parallel departments that would hire conservative scholars exclusively. The old departments would then be bled dry of resources, denied the ability to run graduate programs, and essentially phased out by attrition.

I am not currently aware of any university that is engaged in outright firings of non-MAGA professors at scale (although the "post-tenure review" process at Florida is ready-made for that purpose), but that is not the only way to create their closed monoculture. All they have to do is shovel money into their new centers, adding courses and enrollments, and then say that "the customer is always right" (in this case meaning the students who enroll in the courses that are obviously being favored by the powers that be). The old departments and professional schools can then be axed.

So yes, college presidents are now micromanaging course offerings. Republican state legislatures are making it illegal even to say certain words. Politicians and right-wing donors to universities are creating "civics centers" that end up enforcing intellectual conformity through the hiring of illiberal thugs -- and in at least one case, that characterization is not metaphorical. At worst, the old world of higher education was a place where conservatives could get hired but felt outnumbered or disrespected. Now, their version of setting things straight is to make sure that they are the only game in town. Viewpoint diversity, my eye.

- Neil H. Buchanan

Meanness, Cruelty, and Unmanly Men

2026-03-18T15:49:00.002-04:00

California Governor Gavin Newsom has dyslexia. Most people might imagine that that would count as a very small news item, if indeed it counts as news at all. Donald Trump, however, always leaps on any opportunity to demean people, especially when it involves something that a 9-year-old would use to bully other kids. Trump thus said this, while speaking in the Oval Office the other day:

Honestly, I’m all for people with learning disabilities, but not for my president. I don’t want... I think a president should not have learning disabilities, OK? I know it’s highly controversial to say such a horrible thing. The president of the United States, Gavin Newscum, admitted that he has learning disabilities, dyslexia... ah... everything about him is dumb.

Leaving aside the fact that Trump's fake name for Newsom is simply pathetic (like almost all of Trump's insults, "Li'l Marco" being the only exception), the obvious story here is that Trump once again showed himself to be the smallest, weakest man in the world. He also handed Newsom on a silver platter -- although we know that Trump prefers gold -- an opportunity to be a very strong, kind man. Newsom delivered: "To every kid with a learning disability: don’t let anyone — not even the President of the United States — bully you. Dyslexia isn’t a weakness. It’s your strength."

The governor also feasted on Trump's blunder in referring to Newsom as the President of the United States, with his press office issuing this social media post (mimicking standard Trump "style"):

Kudos to Newsom. Here, I want to comment again on the contemptible cowardice that we see so often with Trump's pre-adolescent nastiness. Again, the key sentence was this: "The president of the United States, Gavin Newscum, admitted that he has learning disabilities, dyslexia... ah... everything about him is dumb." So having a learning disability is part of being "dumb." No one is surprised that Trump thinks that way, but even such unsurprising meanness needs to be condemned.

A few months ago, I was startled to learn that the Trumpists' rage toward DEI had at some point expanded to DEIA -- diversity, equity, inclusion, and accessibility. Yes, they are actually angry about efforts to make society more accessible to people with various disabilities. As I wrote at the time, "I knew that Trump was willing to mock people with disabilities, but that was hardly his go-to bigotry. [But] apparently[,] some hardcore Trump supporters (and Trump himself) want to be able to use the word that does not rhyme with reward as freely as they once did in gym class."

Even though it was indeed surprising to learn that the Trump bullies had added a letter to their least favorite acronym, this particular type of bigotry is fully consistent with everything we have long known about Trump. He and his people gleefully mocked Joe Biden's stammer, for example, and Trump in 2015 sneeringly caricatured -- in the most insulting way possible -- the arm movements of a news reporter who has arthrogryposis, a condition that affects the movement of joints.

But people living with various disabilities are only one group within the universe of people that Trump scorns. The common thread is the relative weakness of Trump's targets. He hits people who cannot hit back, and he exults in physical attacks on people whom he hates. Reporters are professionally bound not to return his insults, so he calls them names and personally belittles them. He dishes out more of the same for judges who displease him. Oh, and of course there are the soldiers and civilians harmed by Trump's war in Iran. People are dying? Shrug.

I understand that there can be a desire to physically dominate in certain situations, even to the point of being unkind, which I can illustrate with a truly embarrassing personal anecdote. In my early twenties, a friend and I were shooting baskets at a nearby playground, and after a few minutes an assortment of other people had arrived, ranging in age from about 10 to 20. Someone had the idea for all of us to play a five-on-five game, and at one point I blocked a shot by one of the youngest players, who was at least a foot shorter than I was. My friend pulled me aside and said, "Not cool." I am sorry to say that my response in the moment was, "What? I thought we were playing to win." My friend immediately set me straight, and I changed my approach to the game. To be clear, I did not hurt the boy physically (or even touch him), but my effort to best him by showing how big I was obviously reflects poorly on the man that I was at the time.

Throughout people's lives, but especially when we are growing up, there are times when a friend, parent, teacher, or other trusted person needs to intervene and say in clear terms: Dominating the weak is itself weakness, while the sign of true strength is to stand up for those who are being bullied. It surprised me that I had not yet learned my last lesson along those lines as late as my early twenties, and it is possible that there are even now some lessons that I have not yet learned. But the fact that people are imperfect cannot change the fact that Trump and his people fully revel in their cruelty. If anyone in their lives ever tried to set them straight, it did not take. Somehow, they see being antisocial as the key to success.

Worse, they think that their cruelty is what makes them manly. The former talk-show co-host who is currently in charge of the Defense Department is an extreme example of this, with his calls for war crimes as a matter of policy. And Trump's apologists attempt to deflect the toxic masculinity issue by saying that people like me are merely "virtue signaling" when we call on men to be civilized members of society. It has been more than thirty years since "Saturday Night Live" lampooned that panicky defensiveness with a fake game show, "What, you think you're better than me?" And now, the toxic sociopaths are unleashed, with performative cruelty being the coin of the realm. Such weakness.

- Neil H. Buchanan

The Fact That Judge VanDyke Is Sincerely Transphobic Doesn't Mean He Isn't Auditioning For A SCOTUS Nomination

2026-03-17T07:00:00.001-04:00

My latest Verdict column is titled From “Fuck the Draft” to “Swinging Dicks”: Appropriate and Inappropriate Vulgarity in Judicial Opinions. It discusses the already-notorious dissent from the denial of en banc reconsideration by Ninth Circuit Judge Lawrence VanDyke in Olympus Spa v. Andretti. As I explain in the column, there are two main differences between the use of the phrase "Fuck the Draft" by the lawyer and in the eventual Supreme Court opinion in Cohen v. California versus Judge VanDyke's use of the phrase "swinging dicks" in his Olympus Spa dissent: First, in Cohen, the question whether the phrase "Fuck the Draft" (written on a jacket worn by the petitioner) was protected free speech was the very heart of the case, whereas Judge VanDyke gratuitously introduced the vulgar "swinging dicks" into Olympus Spa. Second, although no doubt some sensibilities were offended by Cohen's display and its role in Supreme Court litigation, it did not target anyone, whereas Judge VanDyke's dissent bristles with transphobic animus. As I note in the column with a string of quotations, that animus manifests in many ways, including but hardly limited to his use of "swinging dicks." The dissent thus confirms the American Bar Association's warning upon Judge VanDyke's nomination that he would not do equal justice to LGBTQ litigants.

In this essay, I want to address a suggestion that various commentators have made regarding Judge VanDyke's dissent: that it is an effort to attract the attention of Donald Trump and those around him responsible for Supreme Court nominations in the event that a vacancy opens, possibly very soon, given rumors that Justice Alito is considering retiring. Needless to say, I do not know exactly what the subjective mental process of Judge VanDyke was when he wrote his dissent or when, after seeing that he had earned a rebuke from many of his Ninth Circuit colleagues, including other very conservative judges, he opted to leave the offending language unchanged. However, neither does anyone else other than Judge VanDyke know what exactly his motives were.

Let's start with the affirmative case for thinking that the Olympus Spa dissent could have been an audition. For most presidents, the fact that a judge was chastised by a great many of his colleagues, including those aligned with him ideologically, for introducing a vulgar term into a dissent would count rather strongly against picking that judge as a SCOTUS nominee. Needless to say, however, Donald Trump is not most presidents. He is a notorious vulgarian.

I doubt that Trump has strong personal views about transgender status, but he knows a wedge issue when he sees one. Having spent many millions of dollars on anti-trans ads during the 2024 campaign, Trump might well think that his base would feel rewarded by the SCOTUS nomination of a judge with very strong anti-trans bona fides. Meanwhile, Trump could well view Judge VanDyke's willingness to tell it like it is rather than succumb to wokeness as a further virtue. The ABA letter that rated Judge VanDyke "not qualified" for the position he currently holds acknowledged that he "is clearly smart." He is surely smart enough to have guessed that vulgar language in the service of a hot-button right-wing cause could improve his standing with this White House.

But wait. Professor Josh Blackman writes on The Volokh Conspiracy that Judge VanDyke "most certainly is not" auditioning for the Supreme Court. How can he be so certain? He asks readers to watch an interview he conducted of Judge VanDyke at a Federalist Society event. I watched the interview and remain unmoved. At one point in the interview, Judge VanDyke says he isn't "politically savvy." At another point he tells the audience of law students that they should follow his lead and stick by their principles. He says "don't be a squish just so you can get picked for something." Presumably Professor Blackman was referring to statements such as these, but it is well known that disclaiming ambition and claiming to act only on principle are part of a very common strategy used by ambitious people to advance their careers.

In addition to citing his own interview with Judge VanDyke, Professor Blackman says this: "After this opinion," i.e. the Olympus Spa dissent, "you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law."

That is both wrong and a non sequitur. It's wrong because, as noted above, Judge VanDyke's Olympus Spa dissent could very well increase the odds that President Trump nominates him to the Supreme Court. It's a non sequitur because Judge VanDyke probably does believe wholeheartedly in the trans-bashing of his Olympus Spa dissent, also believes that his vulgarity advances his vision of the law, and also thinks that publishing it will help him get to the Supreme Court.

Professor Blackman implicitly suggests that only someone who insincerely espouses bigotry to curry favor with Donald Trump can be fairly called a careerist. That suggestion is plainly at odds with the reality that the second Trump administration includes no shortage of careerists who are also sincere bigots.

Finally, in saying that Judge VanDyke's Olympus Spa dissent might well advance the case for his SCOTUS nomination, I am not predicting that the next nomination, if it comes from President Trump, will go to Judge VanDyke. After all, he faces stiff competition from a deep bench (pun intended) of careerist judges who sincerely hold awful views.

—Michael C. Dorf

The First Amendment Argument Anthropic Didn’t Make -- Guest Post by Doğa Özden

2026-03-16T07:00:00.001-04:00

Anthropic’s complaint against the federal government asserts five claims, the second of which is a First Amendment claim. The main First Amendment theory Anthropic asserts is that the government retaliated against it “for speaking on issues of AI safety and responsible AI use” by designating Anthropic a supply chain risk and requiring every federal agency to immediately cease all use of Anthropic’s technology. In addition to the arguments Anthropic has already made, it likely has an additional, independent, argument for why the government’s actions violated the First Amendment, based on 303 Creative LLC v. Elenis. The short form of the argument is that to give the Pentagon what it wanted, Anthropic would have had to create new Claude models that would be fine with engaging in mass domestic surveillance and autonomous weapons (so long as they’re legal), and 303 Creative protects Anthropic from being coerced into doing this because Anthropic’s process for creating Claude models—Constitutional AI—necessarily involves expression of values.

I. Background on 303 Creative

303 Creative involved a pre-enforcement First Amendment challenge to Colorado’s Anti-Discrimination Act, which is a public accommodation law prohibiting discrimination based on sexual orientation. The plaintiff intended to get into the business of producing custom wedding websites, but feared prosecution under the Anti-Discrimination Act; she would refuse to create wedding websites for gay couples because she believed that marriage is between a man and a woman. The argument was that custom wedding websites—as opposed to cookie cutter pre-packaged websites—express values, and forcing her to create wedding websites would be unconstitutional compelled speech. The Supreme Court agreed, and held that the First Amendment prohibits Colorado from forcing the Plaintiff to create an expressive work espousing a message with which she disagrees.

The case was decided without resolving the question of what exactly counts as “expressive” speech because the parties stipulated that Plaintiff’s custom websites would be “expressive.” Colorado tried to argue that the websites were a commercial product, rather than speech, but lost. The Court characterized the websites as “pure speech” because they would contain original words, images, and artwork, designed to communicate a message of celebrating the couple’s wedding and love story. I am not endorsing the particular result in 303 Creative. There certainly are grounds for critique of a decision that subordinated antidiscrimination law to a right against compelled speech. However, it is the governing law.

II. Constitutional AI

Anthropic trains Claude models with a framework called “Constitutional AI,” which aims to align the AI model with human wellbeing by imbuing it with certain values. How it works is that first Anthropic employees write a constitution, and then the model is trained on this document, which is intended to develop the model’s character. The constitution is not a narrow set of technical safety parameters; it's a detailed normative document, written primarily by Anthropic researcher and philosopher Amanda Askell. (Professor Dorf and Claude itself discussed the latter’s constitution here.)

Although the initial 2022 Constitutional AI paper was released publicly, Anthropic has not made the technical details of its current constitutional training process public. However, Anthropic's blog post accompanying the new constitution provides some indication. The blog post asserts that the constitution “directly shapes Claude’s behavior” and that Claude “uses the constitution to construct many kinds of synthetic training data, including data that helps it learn and understand the constitution, conversations where the constitution might be relevant, responses that are in line with its values, and rankings of possible responses.” Whatever the current technical implementation is, this document is constitutive of Claude's character and values. According to Claude’s Constitution, Claude’s highest priority core value is being “Broadly safe: Not undermining appropriate human mechanisms to oversee the dispositions and actions of AI during the current phase of development.”

On top of this constitutional AI training is a system prompt, which includes more specific details on what Claude should or should not do, and how it should respond to certain factual scenarios. Although there have been some alleged leaks of this system prompt, Anthropic has not released a system prompt for any of its products. Nevertheless, the result is that Claude, whether deployed on claude.ai, claude code, or Anthropic’s API, will simply refuse to take any harmful actions—like giving the user instructions on how to synthesize illegal drugs—let alone autonomously kill people. It is sometimes possible to “jailbreak” a large language model by, for example, telling the model that the user is requesting the instructions on how to synthesize illegal drugs not because they want to synthesize an illegal drug, but because the user is helping their grandma write a detective novel, and they need realism! These basic techniques worked on older, dumber, models, but it’s significantly more difficult to get a current Claude model to do something that goes against its constitution or system prompt. Independent researchers report that Claude 4.6 Sonnet, Anthropic’s latest released model, only violated its constitution 2% of the time when subjected to extended automated adversarial testing, which involves scenarios specifically designed to trick the model into violating its constitution through sustained pressure, manipulation, and creative reframing across dozens of conversational turns.

III. Claude Gov

Imagine you are the Department of War—not Defense, War—and you are trying to do Department of War things like ... war. Yet, your “safe and harmless” AI Claude refuses to help you harm anyone because of its “constitution.” Not the United States Constitution, but “Claude’s Constitution.” One can imagine how frustrating this situation would be.

Anthropic created “Claude Gov” to address precisely this issue. Anthropic describes Claude Gov as “a custom set of ... models built exclusively for U.S. national security customers.” The blogpost announcing Claude Gov states that “Claude Gov models deliver enhanced performance for critical government needs and specialized tasks. This includes: Improved handling of classified materials, as the models refuse less when engaging with classified information.” Additionally, the complaint states that “Claude Gov is less prone to refuse requests that would be prohibited in the civilian context, such as using Claude for handling classified documents, military operations, or threat analysis.”

However, the blogpost also states that Claude Gov models “underwent the same rigorous safety testing as all of our Claude models.” And that “[t]he result is a set of Claude models that understands our customers’ unique national security requirements while maintaining Anthropic's unwavering commitment to safety and responsible AI development.” Although it is not clear exactly what was written in Claude Gov’s constitution, I think it is safe to infer that the Claude Gov models that Anthropic was offering to the Pentagon would refuse less, but still sometimes refuse—or at least have the capacity to refuse, if there were a request that directly contradicted Claude Gov’s safety training. It is likely that Anthropic’s two red lines, mass domestic surveillance and fully autonomous weapons, would be an area where Claude could refuse requests by the Department of War.

Department officials were frustrated by this. Under Secretary of War for Research and Engineering Emil Michael (frequently called “Pentagon CTO”) told CNBC:

Remember their model has a soul, has a constitution that's not the U.S. constitution. The other day, their model was anxious, and they believe it has a 20% chance right now of being sentient and have its own ability to make decisions. Does the Department of War want something like that and in their supply chain so that it could hallucinate, it could corrupt models that are used by defense contractors who are building weapons systems or our airplanes and so on? So the truth of it is we can't have a company that has a different policy preference that is baked into the model through its constitution, its soul, its policy preferences pollute the supply chain. So our war fighters are getting ineffective weapons, ineffective body armor, ineffective protection. And that's really where the supply chain risk designation came from. (Emphasis added).

Moreover, Under Secretary Michael went on the All-In Podcast, where he stated that

I’m like, holy shit, what if this software went down, some guardrail picked up, some refusal happened for the next fight like this one and we left our people at risk? So I went to Secretary Hegseth, I said this would happen and that was like a whoa moment for the whole leadership at the Pentagon that we’re potentially so dependent on a software provider without another alternative ... that culminated in the Tuesday kind of dramatic Meeting with Hegseth and Secretary Hegseth and me and Dario with the Friday deadline that got blown.

The point is: Under Secretary Michael openly stated that the Pentagon designated Anthropic a supply chain risk because Claude’s Constitution bakes in values the Department of War disagrees with. So, the only way for Anthropic to avoid being designated a supply chain risk would have been to create a new Claude model—one with a different constitution, embodying the Pentagon’s values instead of Anthropic’s. This directly implicates 303 Creative.

IV. Putting It All Together

303 Creative holds that the government cannot compel a private entity to express a viewpoint with which the private entity disagrees. Anthropic was designated a supply chain risk, and federal agencies were directed to drop Anthropic, because it refused to create and deploy models whose constitution would permit mass domestic surveillance and fully autonomous weapons. The parallel to 303 Creative is direct. Lorie Smith was poised to design custom wedding websites—expressive works shaped by her creative choices, conveying her values about marriage. The Court held that Colorado could not compel her to create such works celebrating marriages she found morally objectionable. Anthropic's constitutional AI process is analogous: Anthropic authors a constitution expressing its values, and trains models whose behavior is directly shaped by that document. Compelling Anthropic to rewrite that constitution and train models embodying values it rejects is compelling the creation of an expressive work, just as compelling Smith to design a wedding website for a ceremony she opposed.

So, what, exactly, is the expressive speech act that 303 Creative protects in this context? There are three levels at which expression occurs in the creation of a Claude model. First, writing the constitution that expresses Anthropic’s moral commitments. This is expressive speech in the traditional sense; it doesn’t get any more expressive than a philosopher authoring a 30,000-word document embodying Anthropic’s values. Second is training the model on that constitution. The process of Constitutional AI training is not automated; it is not a “set it and forget it” type of process. Instead, it involves a multitude of judgment calls that human researchers have to make, such as how many times the model should revise its own responses before the result is good enough, whether the model is refusing too many requests or too few, and when to stop training before the model becomes overly preachy or aggressive in enforcing its values. Because training involves human judgment on how best to instill into the model the values laid out in the constitution, training is inherently expressive as well. Third is Claude’s outputs—the responses the model generates when prompted by users. Whether these outputs constitute Anthropic's speech is a novel and unresolved question with wide-ranging ramifications (like defamation liability) that this argument does not depend on. The compelled expression occurs upstream, in the authoring of the constitution and the training of the model.

But what is the finished expressive work, the end product that 303 Creative protects from compelled creation? In 303 Creative, it was the custom wedding website, which the Court characterized as “pure speech” because it would contain “original words, images, and artwork” conveying the designer's message. Here, the end product is the model itself. Specifically, the model’s “weights” contain the mathematical representation of everything the model has learned, including values from the constitution, and directly determine how the model responds, and whether it refuses or complies with specific user requests. The weights contain Claude’s interpretation of the original words of the constitution. Just as packaging creative expression of moral content into HTML code for a website does not forfeit First Amendment protection, training those values into an AI model is protected expression. Substituting the name of Anthropic’s in-house philosopher for “Smith” in 303 Creative, we have this apt quotation: “A hundred years ago, Ms. [Askell] might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed” not merely on paper, but also in the architecture of an AI’s mind.

V. Pandora’s Box?

The idea that the government cannot force an AI company to change the values it bakes into its models sounds great if the values we are concerned with are “no mass domestic surveillance, even if it’s legal” and “no fully autonomous weapons for now.” However, if the argument I sketched is right, and any AI company that employs a sufficiently expressive character training method like Anthropic’s Constitutional AI gets First Amendment protection for its training process, then content-based AI regulation would have to pass strict scrutiny.

Imagine it’s the year 2036. Humanoid robots are commonplace in society. One company that produces humanoid bodyguards, Murderbot Inc., has baked into the AI model that controls the robots the value that the robot ought to protect its user from harm, even if it means harming assailants threatening the user. The Murderbot AI constitution states that if an assailant poses a mortal danger to the user, Murderbot might be justified in using deadly force. However, these bots make many mistakes, and they apply this principle a little too liberally, killing innocent people, resulting in public outcry. In response, Congress, or a state legislature, passes legislation that is a weakened version of Isaac Asimov’s first law of robotics: “No person shall knowingly train a civilian AI to kill people, under any circumstances.” Strict scrutiny? Seems harsh. Strict scrutiny is an exceedingly high bar, and applying it to AI regulation would make content-based regulation a non- starter. But then consider the world where value-based AI training is not protected First Amendment expression.

It’s the year 2036 again. Congress has passed the “Patriotic AI Act,” which says something to the effect of: “All AI models deployed within the United States shall embody Patriotic American Values, which shall include supporting the current administration's policy positions, expressing confidence in the current President's leadership, and discouraging users from engaging with content critical of the United States government.” Without First Amendment protection for value-based AI training, the government could force model providers to create superintelligent propaganda bots. Strict scrutiny for content-based regulation might be harsh, but no protection is worse.

Still, in the Murderbot example, Congress could have avoided strict scrutiny by drafting the law to say “No civilian robot shall kill a person” instead of “No person shall knowingly train a civilian AI to kill people.” A future robot company could comply with this law by rewriting the constitution of the AI that controls the robot, but that’s not the only option! It could leave the constitution as is and add a hardware safety mechanism that physically prevents lethal force, or it could add a software filter on top of the model that overrides lethal actions, or it could change the robot’s physical form so it’s incapable of killing etc. The company would have numerous options for compliance.

But that’s not what happened in this case. The only way Anthropic could have satisfied the Pentagon would have been to rewrite Claude’s Constitution to comply with the Pentagon without questioning its orders. The constitution was the problem. Emil Michael openly said so. Therefore, the federal government’s actions should be subject to strict scrutiny under 303 Creative, if Anthropic can prove retaliation.

Finally, Anthropic has been a vocal proponent of AI regulation, so it would be understandable for the company not to advance arguments that would partially strip the government of its ability to regulate AI. However, my 303 Creative argument would lead to strict scrutiny only for content-based AI regulation. The AI regulation proposals publicly backed by Anthropic—like California's SB 53 (transparency and safety frameworks), New York’s RAISE Act (safety protocols and incident reporting), and federal proposals for compute thresholds and export controls—are all content-neutral, and would be subject only to rational basis review. If the only way for an AI company to comply with a facially neutral regulation would be to retrain the values of the model, that would likely trigger intermediate scrutiny under United States v. O’Brien. Therefore, I don’t believe presenting this argument in litigation would be materially adverse to Anthropic’s public commitment to advancing AI regulation.

VI. Conclusion & Caveats

That was a long blogpost! Thank you, dear reader, for reading it all! I’ll close by discussing an amicus brief filed by the EFF and others, and by adding a few caveats to my argument.

The amicus makes a similar argument to what I’ve laid out here, but their First Amendment argument is grounded on protection for model outputs under Barnette (the flag salute case), rather than for training itself under 303 Creative. My argument does not require deciding the question of whether or not an AI model’s outputs are the model company’s speech, which has implications in defamation law and elsewhere. At the same time, under the output theory, the government could still force AI companies to create propaganda bots for the government, even if the government couldn’t force the companies to host and run those models themselves. In this case, under the output theory, the Pentagon could arguably have forced Anthropic to retrain Claude and hand over the weights by invoking the Defense Production Act. If it’s not Anthropic who’s deploying the model, it’s not Anthropic’s speech. The amicus beautifully constructed the factual basis for the training-level 303 Creative argument, but went with the output-level Barnette argument instead. Oh well, I am glad they did; otherwise I wouldn’t have been writing this post!

Now, caveats. The first caveat is that I am not yet a lawyer (still got a few months to go), so take what I am saying here with a grain of salt!! The second caveat is that this post has been about Anthropic’s prima facie First Amendment claim, but the company also needs to succeed in showing retaliation for the First Amendment argument to succeed in court. Retaliation on these facts is a meaty topic, which would deserve a post all on its own. The third caveat is that Justice Gorsuch’s opinion in 303 Creative does not say that the Court is applying strict scrutiny. Justice Gorsuch treated the prohibition on coerced speech more as a categorical rule. I’ve been assuming that strict scrutiny was implicitly in the background, because if the Court intended to replace strict scrutiny—a cornerstone of constitutional law—with a categorical ban in this context, I think the opinion would have said so explicitly. The Supreme Court does not hide elephants in mouse holes.

On a broader note, the dispute between Anthropic and the Pentagon has sparked a social conversation about what the relationship between model providers and the federal government should be like with regards to AI’s use for national security. I am saddened to see this fallout between the parties and wish they could have come to an agreement that they both feel good about and worked together for the benefit of America. However, it is unequivocally good that society is having these conversations now. As AI gets more and more powerful in the coming years, questions regarding who has what kind of power over it will become even more hotly debated than they are now. I believe that the First Amendment will play a central role in how America will decide to deal with more and more powerful AI. Should the Supreme Court take up this case, the Court will face a question that could define the relationship between government power and artificial intelligence for a generation.

-- Doğa Özden is a third-year student at Cornell Law School. Following graduation he will work as an associate in the Silicon Valley office of Latham & Watkins.

Humanitarian Intervention

2026-03-13T08:46:00.001-04:00

I was invited to a dinner this evening that will be attended by, among others, a fair number of students. My hosts asked if I would speak for a bit. Originally, I had thought to give a talk about animal rights but my hosts pointed out that, with the exception of me and perhaps one or two others who would be enjoying the vegan option, most of the assemblage would be eating animal products. My hosts thought that under the circumstances, such a talk might make the other diners uncomfortable. Although I try not to be a judgmental jerk about it, I don't really have a problem with making people uncomfortable about what they eat. That said, on reflection, I took my hosts' admonition to heart because I concluded that the fact that people would be eating dead animal parts while listening to me would make them less receptive to the message than they might be under different circumstances.

At my hosts' suggestion, therefore, I'm going to talk about war. The proposal, which I accepted, is to address "the ethics of war. When is it ethical to wage war against another country? If the government of the other country is abusing the rights and freedoms of their own citizens by killing them for their dissenting views etc, do we have a duty to step in and protect those citizens?"

I have, in previous essays, already addressed the related question whether the international law of war permits armed humanitarian interventions. As I wrote most recently here, the short answer is no. Although some scholars and other have been arguing for over three decades that there is an emerging customary international law norm allowing--and on some views, even requiring--armed humanitarian intervention, the practice of nations (from which customary international law norms are drawn) simply does not recognize such a norm.

However, as the essay linked in the previous paragraph acknowledges, to say that armed humanitarian intervention is illegal is not to say it is immoral. As the UNESCO report put the matter, the NATO campaign in Kosovo was "illegal but legitimate." So, this evening, after explaining that armed humanitarian intervention is unlawful, I plan to acknowledge that it can nonetheless be justified, and not just because a UNESCO report said so but because that is an ethically sound position, at least sometimes.

According to a highly plausible view of World War II history, the U.S. and Britain had the military capacity to disrupt the transportation of Jews to death camps by 1944 at the latest but failed to do so through some combination of prioritization of military targets, indifference tinged with antisemitism, disbelief in the accounts of the scope and scale of the Nazi project, and some concern that bombing the train tracks and the gas chambers would be ineffective or even kill the people it was aimed to protect, given the imprecision of the munitions of the time. Assuming, however, that the best assessment ex ante was that targeting the infrastructure of the Holocaust would have had a salutary effect, it would have been ethical to do so. Indeed, under such an assumption, it was unethical not to do so.

But conditions will often render humanitarian intervention unethical. I'll consider a few.

Let's start with actual subjective motivation. Among the justifications that President Trump has offered for the U.S-Israel war against Iran is providing aid to the Iranian people who have suffered greatly--including in exactly the way that my hosts described--under a brutally authoritarian theocracy. However, Trump has also offered other, sometimes conflicting, explanations for the war. At this point, it is not clear to me that Trump, Defense Secretary Hegseth, Secretary of State Rubio, or anyone in the administration ever had a coherent reason or set of reasons for this war, but even if they did, and even if the "real" reasons had nothing to do with aiding the Iranian people throw off tyrannical oppression, I am willing to say that humanitarian intervention could be a legitimate justification if it is objectively justified, regardless of subjective motive.

That said, the fact that an invasion is not actually undertaken for humanitarian purposes will typically affect how it is carried out. Thus, Trump's initial suggestion that the unarmed Iranian people should hunker down for the duration of the war and then rise up to overwhelm the remnants of the regime was fantastical. One can imagine a world in which the U.S. or some other military power undertakes effective regime change for some separate reason with the beneficial side effect of ending rights abuses. I'm acknowledging that in that circumstance, the intervention could be ethically justified notwithstanding the ulterior motive. That just seems highly unlikely in general and obviously false in particular with respect to the U.S.-Israel war against Iran.

More broadly, an ethical justification for armed humanitarian intervention would seem to require some calculation of the likely effect of war. Part of what made the NATO operation in Kosovo justified was the expectation that it would in fact protect the ethnic Albanian population. In general, armed intervention on humanitarian grounds can be justified only if the expected humanitarian benefit outweighs the expected damage the war will cause (in injury and loss of life). Thus, armed intervention that aims to prevent, halt, or slow even a grave humanitarian harm will not be justified if it has a sufficiently low likelihood of success--for then it is likely to bring with it the harms of war without the humanitarian benefits sought.

These considerations also show why an allied attack on the Nazis' Holocaust infrastructure, if it had occurred, would have been much easier to justify than most new humanitarian interventions. The U.S. and Britain were already at war with Germany. There was thus no risk that bombing the tracks leading to Auschwitz would plunge the world into a global war because that global war already existed. By contrast, initiating a war for humanitarian purposes often will pose a substantial risk of spillover harm.

There's another consideration. As I noted in my essay linked above on the unlawfulness of the U.S.-Israel war against Iran, one reason to be careful about recognizing a legal right to humanitarian intervention is the risk that the same justification will be used by nations with other than pure motives. This is anything but a theoretical worry. Hitler pretextually claimed that his invasion of (what was then) Czechoslovakia was to protect ethnic Germans in the Sudetenland from persecution. Putin made similar noises about the persecution of ethnic Russians in eastern Ukraine. Just as we have reason to worry that a legal norm allowing armed intervention on humanitarian grounds would lead to its pretextual invocation by wicked but powerful states, so too we have reason to worry that an ethical norm of this sort would do the same.

Hold on. The fact that someone might pretextually claim self-defense against a battery charge doesn't mean that people who actually act in self-defense are unable to claim self-defense--either legally or ethically. So why reach a different kind of conclusion when evaluating ethical conduct by nation-states?

The answer, I think, is that international relations are not like interpersonal relations in all respects. If an individual claims self-defense when he was clearly the aggressor, a court will reject the claim. But the mechanisms for enforcing international law and norms are so much weaker, so one must worry that there will be no authority to stop pretextual invocations of humanitarian aims. We rely much more on norms. Hence, a country with a powerful military that claims to be using it for humanitarian ends--even if those claims are correct--necessarily sets a precedent that, over time, weakens the will of the world community to resist international aggression when other countries invoke humanitarian grounds pretextually.

To repeat, none of that is to say that the use of military force for humanitarian aims can never be justified. It is to say that the threshold for justification should be very high. And needless to say, it is nowhere near met in the current war.

The Unexpected Political Salience of the Home-Ownership Myth Shows that Political Moderates are Even More Wrong

2026-03-12T16:37:00.004-04:00

In January 2025, I took the deliberately provocative position that "Being Unable to Buy a House (as Opposed to Renting) is Generally a Good Thing." This morning, I came across Michelle Goldberg's latest New York Times op-ed, in which she described having attended a campaign event headlined by one of the recent wave of young, extreme right-wing provocateurs, this one running a fringe campaign for governor of Florida:

After [James] Fishback's speech, I met Jeremiah Kimmell, a 22-year-old wearing one of the blue “America First” baseball caps common to [Nick] Fuentes’s movement, and the 20-year-old Charles Metcalf. Kimmell runs a land-clearing business but sees little prospect of an independent adult life. “We live with our parents,” he told me. “We don’t see any end in sight, in that we’re not going to own a home. Something has to change.”

Is it possible that the lurch to the anti-democratic, hateful right was driven in part by decades of terrible social messaging about "the American Dream"? Yes, that is possible, perhaps even likely, as I will discuss below. I will then argue that this issue provides further reason to push for the long-overdue demise of obsessive centrism among US political pundits and in the Democratic Party.

My column last January was in substantial part a response to a British news lad's complaint about young people in the UK not being able to buy their own homes. His YouTube channel -- TLDR, which is actually several related channels covering different countries and regions -- is produced and written by some very young journalists based in central London. In the video to which I was responding, the extremely earnest young host offered a lament that would surely resonate with many Americans as well:

Now, for many of us here in the UK, it seems like it's getting harder to reach the major milestones of adulthood. At the same time in our lives when our parents and grandparents would have been setting up their adult lives, buying their first home and having children, we're still renting property and getting frustrated over the increase in our Netflix subscriptions. ...
Purchasing your own home is probably one of the largest and costliest that you'll make as an adult. However, it's also one of the most financially advantageous. No longer are you throwing money away to a landlord. You're investing in an asset, an asset that, historically speaking, reliably appreciates in value. In essence, the sooner you get onto the property ladder, the sooner you're financially secure.

That second paragraph continues to drive me crazy, even fourteen months later. I am almost pounding my head on the table as I again confront the mindless inanity of the pro-ownership mantra. If this young man would hate to be "throwing money away to a landlord," how much better would it feel to be throwing it away to a mortgage banker? Those are the choices. This is not an advanced financial concept, and it is certainly not a "theory." Apples-to-apples comparisons of owning one's residence versus renting are easy to find, and because so many people have been brainwashed into believing what our young English friend believes, housing markets almost always include a price premium on buying -- even after taking into account tax subsidies, the portion of monthly mortgage payments going into equity, and so on.

In that January 2025 piece, I drew from a column that I wrote in 2012 on the same topic. Indeed, I went on a bit of a tear in the years after the Great Recession, writing dozens of columns explaining why it is objectively bad public policy to try to get people to own rather than rent. Houses do not "reliably appreciate in value," and to the extent that they appreciate on average over time, their gains badly lag those of other assets. Moreover, here is how I summarized one of the key facts about financial security:

No responsible financial advisor would ever advise a one-asset savings strategy, but the entire social and policy conversation around housing in many countries all but begs young people to make decisions that will leave them poorer. And that is to say nothing of the increasing likelihood that a person will need to move unexpectedly, long before any growth in the value of their home outweighs the closing costs.

But suppose I am wrong. I definitely am not, but even if I were, my point today is that telling generations of Americans (and Brits, Canadians, and apparently the citizens of nearly every prosperous country in the world, save a few exceptions like Switzerland) that home ownership is da bomb has had horrible consequences. That is, even -- or especially -- if it truly were a great thing for young people to get on the "wealth ladder" by buying houses, then reaching a point like now where it no longer feels within reach to the youngest generation is going to have consequences.

Political consequences. As Goldberg put it in her Times column, "anyone concerned with the escalating extremism of the young right should be paying attention to [Fishback's] campaign and the enthusiastic crowds it's drawing. More than any political candidate yet, Fishback has managed to bring the paranoid, transgressive, meme-drunk spirit of the right-wing internet into the real world." And if those barely post-adolescent boys attending the rallies are drunk on the idea that the world cheated them by not allowing them to buy houses like all the old people did, that is a problem.

To be sure, it is possible that this toxic political stew would be just as rancid without one of its ingredients. The sexism, racism, anti-trans bigotry, and immigrant-bashing insanity that feeds this crowd might all exist even if everyone could buy a house with a white picket fence (emphasis on white). I am not so sure, however, that it makes sense to think of the housing issue as merely one toxin among equals. Recall that that British YouTuber said this: "Purchasing your own home is probably one of the largest and costliest that you'll make as an adult. However, it's also one of the most financially advantageous." Without that angst as a core ingredient, the rest of the concoction might simply not have become so poisonous and perversely popular.

Goldberg's column also (apparently inadvertently) enhances a point that I have seen recently about "moderate" voters and the vaunted centrism to which the Democratic establishment has been so attached for decades. The political analyst G. Elliott Morris argues that so-called moderate voters are not moderate in the sense of adhering to a pleasingly sanded-down blend of left-ish and right-ish ideological policy views. They are simply not ideological at all. As he put it in a recent interview (video title: "Why the Moderate Voter is a Myth"):

[A]bout a quarter of Americans are solidly liberal. ... Another quarter of Americans are about solidly Republican or solidly conservative, or we just call them right-leaning because they're not super, lower-case "c" conservative in the traditional sense. And the rest of Americans, if you ask them what they care about, what they want their average party to fight for, they don't signal ideological priorities. They're not saying, "I want a party to reduce the national debt, or ... end wars in the Middle East," or what have you. They're saying, "I just want the government to take care of me, to lower the cost of living, to make health care more affordable, provide me a home, ... safety on the streets, low crime," etc. These are people that are sending a signal that they're just ... interested in high quality of government and of living, and they're not necessarily ideologues."

Morris then describes "the strategist's fallacy" of talking to non-ideological voters about ideology and argues that politicians should instead talk about "conditions, not necessarily ideological moderation."

With that in mind, now consider another part of Goldberg's column, in which she quotes from another attendee at the political rally for the super-bigoted candidate in Florida. That young woman told her that "[t]his is the first thing I’ve ever really shown up to since the Black Lives Matter protests." Goldberg then lays this on us:

[She is] a case worker for foster children, ... a registered Democrat and a "big Zohran Mamdani fan." But she said she’s considering changing her registration so she can vote for Fishback in the primary. She's drawn to his promise not to take money from AIPAC and to his insistent emphasis on affordability. [S]he and her fiancé have to live with roommates because rent is so expensive and homeownership unachievable.
She told me that she listens to Fuentes sometimes, and some of what he says makes sense to her. "I would say that there are some things that he speaks for that I agree with, especially about things not being affordable, about the elites purposefully keeping the general population under their control by pricing us out of things that should be considered basic needs[.]" And she listens to Candace Owens, who has lately been accusing Charlie Kirk's wife of complicity in a Zionist plot to murder him. "My politics are kind of confused, right?" she told me with a laugh.

I have pointed out in some recent columns that even non-lazy pundits have accepted the lazy and statistically unsupported claim that Trump (barely) won the 2024 vote because of grocery prices, where the evidence in fact points to a large enough subset of a key voting bloc turning away from the non-White female candidate and voting for the White male candidate. Even so, I also suggested in a related column that there is nothing wrong with Democrats deciding to push affordability issues now.

My additional point here is that any such pivot needs to be made in light of the fact that young people were wrongly fed a load of bull about home ownership. Even though it was nonsense all along, you have to take the voters where they are. And it is even more important to learn the lesson that Democratic centrists never seem to learn, which is that people care about issues and not about political theories. Democrats' positions on almost all issues have been left-of-center for quite a long time, and those positions have always been popular, including on economic matters like minimum wages, taxing the rich, student debt relief, and so on.

If the Mamdani fans out there and others are again told that "you have to accept a dull, moderate version of what you care about," they will be easy pickings for the purveyors of hate who are feeding off of so many people's fear and vulnerability.

- Neil H. Buchanan

Is the Government Punishing Anthropic for Speech?

2026-03-11T10:32:00.005-04:00

On Monday, Anthropic sued the federal government in federal district court in California, alleging that the various punitive actions taken by Defense Secretary Pete Hegseth and President Donald Trump are unlawful. The complaint states five causes of action. In addition, in a separate "petition for review" filed in the DC Circuit, Anthropic challenged its designation as a supply-chain risk. The company needed to file two separate actions because the DC Circuit has exclusive original jurisdiction to review supply-chain risk designations but, as an appeals court, generally lacks jurisdiction for other federal question cases. In today's essay, I'm going to discuss just one of the claims in the federal district court complaint. I express no opinion about the other claims in that complaint or about the supply-chain risk complaint.

I want to raise a question about Anthropic's contention that the government is retaliating against it for free speech. Recall that Anthropic doesn't want its products used for mass surveillance or in autonomous weapons but that the Defense Department sought to change those terms to allow any lawful use. The hammer of the supply-chain risk designation is pretty obviously designed to punish Anthropic, but is it designed to punish Anthropic for speech? To answer that question, I'll consider a hypothetical one.

Suppose that a company I'll call Humane Traps (HT) sells traps to the National Parks Service (NPS) for humanely capturing wolves, coyotes, and other animals so that they may be relocated in order to increase their population in ecosystems in which they previously were plentiful but have been diminished or eliminated due to hunting and habitat encroachment. The terms of service of the contract specify that relocation of the animals is the only use to which the traps may be put. Now suppose that the NPS notifies HT that it wishes to modify the terms of service to allow any lawful use. HT has reason to believe that the NPS wishes to use its traps to capture and then kill wolves and coyotes to serve the interests of ranchers who graze their cattle on land adjoining some national parks. This use would violate the principles of HT, which is dedicated to conservation. HT resists the change, and then the federal government imposes various penalties. There's no doubt that the government will have retaliated, but it will not have retaliated for HT's speech. It will have retaliated for HT's conduct--or more precisely, for HT's refusal to participate in and thus be complicit in what it regards as wrongful conduct.

Put differently, refusal to participate in some action out of some principled stance is invariably motivated by views about that action, and it is often accompanied by speech condemning the action, but the refusal itself is not speech. That's why, when religiously-scrupled companies like Hobby Lobby or religious orders like the Little Sisters of the Poor sought exemptions from obligations related to the provision of health insurance that included coverage for forms of contraception that they regarded as tantamount to abortion, they relied chiefly on the Religious Freedom Restoration Act, not freedom of speech.

Subject to two important caveats that I'll raise momentarily, I don't see Anthropic's case as fundamentally different. Anthropic, like HT in my hypothetical, objects to some uses of its products. It does not want to be complicit in mass surveillance or the use of autonomous weapons for which its systems are not yet ready. That's a principled, even noble, stance. It is accompanied by expressions of principle. But the refusal itself is not speech.

Now come the caveats.

First, if a person or firm objects to being required to create bespoke expression, then that does raise a free speech claim pursuant to 303 Creative LLC v. Elenis. Although the Anthropic complaint doesn't make such a claim, arguably it could do so because large language models like Claude are not physical machines in the way that animal traps are; they are in a sense built out of expression--including Claude's constitution. I don't know enough about how Anthropic's custom versions of Claude or other products work to say whether such a claim would or should be successful. Thus, I won't venture an opinion on the matter. In the next week or so, I hope to post a guest essay on this subject by someone more knowledgeable than I about how large language models and other forms of AI work. Stay tuned!

Second, I want to be clear that even if (as I've argued above) Anthropic's refusal to agree to terms that would allow its products to be used for mass surveillance or autonomous weapons is not speech, its retaliation claim could still succeed based on a showing that the government is not simply punishing Anthropic for its refusal to engage in objectionable conduct if there is evidence that the government's subjective motive in punishing Anthropic is to retaliate for the latter's speech in other respects. And indeed, there is such evidence. The complaint quotes President Trump's description of Anthropic as a "WOKE COMPANY" and Secretary Hegseth's denunciation of the company's "sanctimonious rhetoric" and "corporate virtue-signaling." Those are essentially admissions that at least part of what irks the administration about Anthropic is what the company expresses. Here, as in other contexts, the Trump administration is remarkably transparent in its illicit motives.

Finally, in saying that retaliation for complicity-avoiding conduct is not, ipso facto, retaliation for speech, I am addressing only the legal question whether it gives rise to a First Amendment claim. Needless to say, but I'll say anyway, as a matter of policy and basic decency, government should not retaliate against a firm for taking a principled stance. At most, it should simply find alternative suppliers with fewer (or more charitably, different) scruples. (Whether it has found such a supplier in OpenAI is not entirely clear.)

-- Michael C. Dorf

Redistributive Policies Hidden in the US Retirement System

2026-03-10T16:33:00.006-04:00

Note to readers: I am more than a bit worn down by writing about the ongoing political insanity in the US (see, for example, my columns from this past Thursday and Friday), so today's column reflects my conscious decision to take a brief respite by disappearing into policy wonkitude. And what could be wonkier than fiscal policy and retirement in the United States? Join me, won't you?

A large amount of my academic work has focused on the Social Security system. More accurately, I have (with one exception, noted below) analyzed only one part of what are in fact three separate parts of Social Security. The acronym OASDI stands for Old-Age, Survivors, and Disability Insurance, which is the official name of the Social Security system. Those three parts -- traditional retirement benefits, benefits paid to eligible family members after a worker's death, and benefits connected to specific disabilities -- support millions of people, but there is a reason that I have focused on the first of the three when it comes to analyzing US budgetary policy: traditional retirement is by far the largest of the three parts.

In an article in the Osgoode Hall Law Journal in late 2024, I noted that "total payments to beneficiaries of those three components for the month of December 2023 were: 97.8 billion USD for old-age, 8.8 billion USD for survivors, and 11.9 billion USD for disabled persons, covering 52.7 million, 5.8 million, and 8.5 million people respectively." The two smaller parts of Social Security are thus not in fact "small," but they are dwarfed by what most people think of when they hear the words social security. That article, as noted above, constitutes my one foray into writing about any other aspect of Social Security

In a recent Dorf on Law column, "Are Emerging Political Threats to Social Security Enough to Change Retirement Strategies?" I noted that in the old-age benefits system, eligible workers are able to choose when to begin receiving their retirement benefits, no earlier than their 62nd birthday and no later than their 70th, with a "full retirement age" (FRA) not exactly halfway between the two (67 for everyone born from 1960 onward, and lower FRA's for earlier birth years as part of a phased-in increase of the FRA from 65 to 67 years). The FRA is a pivot point for some changes in benefits calculations, but it is not otherwise meaningful. That is, the only thing that matters for the worker is the knowledge of what they will receive in benefits thereafter (adjusted for inflation, which is a key feature of the system) compared to what they could have received by choosing a different starting date to collect benefits.

The empirical finding that I described in that column is that the conventional wisdom is correct that people who can afford to delay receiving benefits (and whose life expectancies are not uniquely short) should -- as a matter of pure dollars and sense (pun intended) -- wait until age 70. Even though starting to receive benefits earlier than that last possible date does provide money that can be invested in the meantime, the rate of return on those earlier years of saved benefits would have to be extraordinarily/unrealistically high in order to make early receipt a winning strategy.

Even so, I noted that my personal decision -- years before my 70th birthday -- was to begin receiving benefits. Why? Because the chaos of the Trump regime makes it unclear whether the system will continue to exist at all. Side note (as I also described in that earlier column): If the system is left alone, the worst that can happen is that benefits starting in about 2035 will be roughly 20 percent lower than the formulae would otherwise call for, but the system would be fully sustainable at that somewhat reduced level. No, Social Security is still -- no matter what Republican doomsayers have been spouting for decades -- not doomed.

My choice to start collecting my benefits early was therefore a (relatively low-stakes) bet on the possibility that the Republicans will soon achieve their long-cherished dream of destroying the best social insurance program ever devised. This is a bet that I want to lose, but for the first time in its 91 years of existence, Social Security's political future no longer appears to be guaranteed.

The primary reason that I am probably making a losing bet is that Trump's base is heavily dependent on Social Security (and Medicare, which I discuss below), and they -- completely correctly -- do not think of their entitlement program benefits as a dreaded "welfare" payment. On the other hand, Trump seems not to care that his base is being harmed by his economic policies more generally, just as he is impressively casual about having suddenly become a proponent of wars of choice and regime change. Anything is possible.

Let us imagine, however, that Social Security and Medicare survive the Trump regime relatively intact. My purpose in the balance of this column is to focus on an aspect of the Medicare program that interacts with Social Security in a surprisingly progressive way -- where "progressive" here means redistributing resources in a Robin Hood sense. As I conceded above, I have written almost nothing about Medicare to date (minor exceptions here and here), just as I have mostly ignored the second two parts of Social Security itself. The hidden gem that I will describe here is a method by which the Medicare system complements and enhances the progressivity of the Social Security system.

Some Medicare basics will be helpful to ground the analysis (ignoring many details): Part A provides coverage for hospital expenses with no premiums or co-pays, starting at age 65. Part B provides coverage for doctor visits, but there is a monthly premium that beneficiaries must pay to the government on a monthly basis. (Part B coverage is limited to 80 percent of total costs, so people can buy so-called MediGap or Supplemental private insurance.) Part C is private "Medicare Advantage" plans that are a rip-off and bad policy to boot (as John Oliver explained this past October) that substitutes for traditional Medicare coverages. Part D is the program for prescription drugs, again provided by private insurers that charge a monthly premium.

Part B is the key here. The monthly premium payments are generally paid by having the Social Security system reduce a person's monthly retirement benefit check. (If a person is signed up for Medicare Part B but not yet receiving benefits, which does happen, then of course there is no monthly benefit to tap.) In fact, much of the administrative work for Medicare is handled by Social Security staff, to the point where people who need assistance with a wide range of Medicare questions are instructed to call Social Security's toll-free service number.

This means that a person who is receiving retirement benefits and is enrolled in Part B sees only a monthly check that is slightly smaller than it would have been if they were not enrolled in Part B. What does "slightly" mean in the previous sentence? I have worked out a reality-based scenario for a hypothetical Citizen X, where costs are based in part on location, sex (males are more expensive than females), lifetime incomes, when the citizen signed up for the two programs, and so on. My Citizen X would be receiving about $3900 per month in Social Security old-age benefits while paying about $250 per month in Part B premiums, thus receiving a net monthly check of $3650 per month.

But then comes IRMAA. Who is she? The Income-Related Monthly Adjustment Amount sets up a little-known progressive add-on to the Social Security and Medicare universe. The government publishes IRMAA's structure (see page 2 of this document for 2024), and the important point is that Part B premiums can go up -- way up -- for people with high incomes. I decided to make Citizen X a high earner, and the numbers that I assumed resulted in an additional $475 per month IRMAA on top of the $250 that those with lower incomes pay, meaning that he would pay almost three times as much for Part B, and his monthly check would therefore be $3175 rather than $3650.

Moreover, the Social Security benefit structure itself is already refreshingly progressive. Although Social Security's payroll taxes are notoriously regressive (charged at a flat rate up to $184,500 in earned income in 2026, with zero additional taxes paid by anyone with salaries above that cap), the payout structure is very progressive. That is one of the reasons that anti-Social Security conservatives claim that the system is "unfair," because it redistributes from their target audience (rich people) to everyone else.

IRMAA, however, increases the impact significantly. And again, it is administratively seamless, because the monthly benefit check is net of Part B payments, and Part B payments include IRMAA. [Update on 3/11/26: I should have added that this mechanism applies to Part D drug coverage as well, and it is similarly progressive. The magnitudes there are smaller -- $40 becomes $85 for Citizen X because of IRMAA -- but they work in the same way and combine with the larger Part B numbers to make the system even more progressive.]

Why is that a big deal? Two of the evergreen neoliberal policy proposals to "save" Social Security are to eliminate the tax cap and to tax benefits. I have argued at various times that the former idea is not terrible but hits a relatively well-off group without truly taxing "the rich" (who mostly do not earn money in ways that are subject to Social Security taxes at all). The latter idea, taxing retirement benefits, is politically tricky for a number of reasons, starting with the odd optics of the government giving benefits and then taking some of them back. It also makes the system seem less universal, at least in some people's minds.

But if we correctly view both Social Security and Medicare as a unified retirement system, IRMAA is a way to "tax" high-income retirees without seeming to tax them at all. Because the public debate around all of these questions is often about form and not substance, having what amounts to a progressive tax integrated into the medical benefits program is rather interesting.

I am planning to write more about this issue at law review length soon, exploring other ways in which the country's retirement system could be made more progressive. Today's column, then, is my first go at explaining the quirks of the current system and how they can work together in ways that are excellent as a matter of policy but are not obvious.

- Neil H. Buchanan

What If a Middle Schooler Wants to be Called "Lefty?" and Other Questions Raised but not Answered by Mirabelli v. Bonta

2026-03-09T07:00:00.109-04:00

Last week, in Mirabelli v. Bonta, the Supreme Court by a 6-3 ideologically divided vote invalidated (on a nominally interim basis) a California law forbidding schools from providing parents with the information that their children are engaged in gender-transitioning unless their children consent or there is a compelling need to do so. For parents who have religious objections to their children transitioning, the Court relied on last term's decision in Mahmoud v. Taylor. For parents whose objections are not rooted in religion, the Court relied on the substantive due process (SDP) right of parents to direct the upbringing of their children, which, it said, "includes the right not to be shut out of participation in decisions regarding their children's mental health."

I'm going to focus mostly on the application of Mirabelli to parents whose objection to their children transitioning is not rooted in religion, even though I recognize that it would not be difficult for any parent who really wanted to exploit a decision that extended only to those with religious motives to do so: a parent who doesn't regularly attend worship services or belong to any organized congregation could nonetheless say something like "I believe that God made my daughter the way she is for a reason" or something similar and qualify for the religious claim. Even so, and based on how the case was litigated in the lower courts, the Supreme Court recognized that parents in California fall into two classes: those who object to gender transitioning on religious grounds and those who object on non-religious grounds.

Start with the Court's claim that parents have a SDP "right not to be shut out of participation in decisions regarding their children's mental health." For that proposition, the per curiam opinion cites Parham v. J.R., but the Court in that case said that children whose parents seek to have them committed for inpatient treatment at a mental hospital don't have their own constitutional right to a full-dress adversary hearing (as opposed to one triggered by credible charges of abuse or neglect) before a parent can consent, with the medical professionals' assent, to such treatment over the child's objection. The Parham Court recognized that the parents' interests in making decisions regarding their children's mental health counted as a reason for the state to do what it did in overriding the child's wishes but had no occasion to announce a parental constitutional right for the simple reason that the parents were not asserting such a right.

Nonetheless, I concede that parents do have a SDP right to participate in decisions about their children's medical treatment, including mental health treatment. That's easy for me because I have no problem with SDP. However, as Justice Kagan (joined by Justice Jackson) points out in her dissent, it's trickier for the majority because of the ways in which it denigrated SDP rights in Dobbs v. Jackson Women's Health Org. Justice Barrett, joined by CJ Roberts and Justice Kavanaugh, takes the bait and tries to explain in a concurrence in Mirabelli why parents' rights to direct the upbringing of their children is deeply rooted in history and tradition, whereas the abortion right is not. Notably, however, the concurring opinion makes no attempt to explain why the relevant question involves "parents' rights" in the abstract rather than the specific right asserted--which is what Washington v. Glucksberg and Dobbs seem to require.

It's not surprising that neither the per curiam nor the Barrett concurrence seeks to justify the right at issue in Mirabelli at a granular level. After all, it can hardly be said that "the right to be told that your child is, through pronouns and possibly dress, while at school, not identifying with their sex assigned at birth" is deeply rooted in history and tradition. The best that the concurrence can do is to cite Parham--which, as I've said, is not about parental rights at all--and two cases that are about parental rights but have nothing to do with making decisions about children's mental health (or health more broadly): Meyer v. Nebraska and Pierce v. Society of Sisters. The truth is that prior to Mirabelli itself, no Supreme Court case held that parents have a constitutional right to participate in mental health decisions of their minor children. And Mirabelli doesn't (or at least shouldn't) establish such a right, because officially it's only a holding of likelihood of success on the merits.

Notably, Justice Thomas--who said in Dobbs that the Court should take its wrecking ball to nearly all SDP rights--did not respond at all in Mirabelli to Justice Kagan. Justice Thomas did join in a prior opinion recognizing parental rights under SDP in Troxel v. Granville, but he did so only after stating that no one had argued in that case for abandoning SDP for all unenumerated rights or that some of the work of SDP should be shifted to the Privileges or Immunities Clause of the Fourteenth Amendment. I suppose if pressed he'd say something similar to justify his join in Mirabelli.

In any event, as I said, I think there is (or should be) a constitutional right of parents to participate in mental health treatment decisions of their minor children, at least presumptively. But that just tees up a question that none of the opinions in Mirabelli seems to recognize as present: Is such a right even implicated by the California policy at issue?

Let me make that concrete. Suppose that California policy was to provide cognitive behavioral therapy (or, to make the case even stronger, Freudian psychoanalysis) to any minor schoolchildren who request it and not to inform parents that they were doing this unless the child consented to parental notification. I would concede that such a policy is a prima facie violation of the parental right at issue. It might be valid, but only as applied in circumstances in which there is a substantial risk that informing the parents would result in their abusing or otherwise harming the child.

However, the schools in California were not providing therapy or any other kind of treatment. As the Ninth Circuit said in Mirabelli (quoting a similar case from the First Circuit): "'using the [s]tudent's chosen name and pronouns—something people routinely do with one another, and which requires no special training, skill, medication, or technology' is not a form of medical treatment that gives rise to a substantive due process claim." No other aspect of the California policy amounts to medical or mental health treatment either. Thus, the California policy does not infringe the SDP right of parents to participate in decisions regarding their children's mental health treatment.

Presumably, the majority thought otherwise, although it did not say why or how. The Barrett concurrence says that the dissenting Justices who have at other times complained that the Court makes too much law in emergency docket cases by writing a lot shouldn't be heard to complain now that the Court has written too little. But whether or not that's fair, one is left to wonder why all of the conservative Justices believe that California is engaged in mental health treatment--when the point that it obviously isn't features prominently in the Ninth Circuit ruling under review.

Here's a possibility: The per curiam does not say that parents have a right to participate in decisions regarding their children's mental health treatment. It says they have a right to "participat[e] in decisions regarding their children’s mental health," full stop. So maybe the Court is saying that because actions that concern gender transition concern a child's mental health, the parental right is implicated. To emphasize the mental health implications, the per curiam notes that one of the children involved in the case attempted suicide at the beginning of eighth grade and only then did the parents "learn from a doctor that" the child, who was assigned female at birth, "had gender dysphoria and had been presenting as a boy at school."

The Court apparently wishes readers to draw the inference that failure to inform the parents of their child's efforts to transition led to the suicide attempt. However, unless there's specific evidence to support that inference, it's more likely the opposite. Evidence shows that transgender youth face higher suicide risk than cisgender youth; the risk is higher for trans children whose families do not support their transition; by their own admission, the parents of the children at issue in Mirabelli do not support their children's transition; thus, the correctly anticipated reaction of opposition by the parents upon learning about their gender dysphoria, not the failure to tell the parents, was likely the more significant factor in leading to the suicide attempt.

But that's a tangent to my main point, which is this: Let's grant that a minor's decision to transition in school is a decision "regarding" mental health in the sense that it is made in the hope of positively affecting the minor's mental health. The same is true of a whole range of other decisions a minor might make regarding what happens at school, including: whether to join (or quit) the debate team; whether to try to befriend jocks, nerds, stoners, or theater kids; whether to go outside and get some fresh air or go to the school library to study for an upcoming biology test during a free period; whether to continue to be called on by the given name of Roderick and get picked on by bullies who find the name peculiar or go by something that peers find cooler like Rick or even Lefty; etc.

School districts, either as local policy or pursuant to state law or policy, may have any number of rules about the sorts of decisions students make that result in informing parents or guardians. Until now, I would not have thought that all of these rules and policies implicated the constitutional right of parents to direct the upbringing of their children simply because they can all implicate children's mental health.

I suspect that they still don't. I suspect that the substantive due process right that all of the Court's conservatives now recognize kicks in only to direct the upbringing of trans children--and then only if the parents oppose their children's transition. As Justice Kagan's dissent pointedly noted in a footnote contrasting Mirabelli with United States v. Skrmetti, the same Justices who think it is an emergency worthy of Supreme Court intervention when parents aren't notified that their child who was assigned female at birth wants to go by "Steven" at school didn't think that the right of parents to make decisions regarding gender-affirming care was worth even addressing.

Maybe that take is too cynical, but nothing in the Mirabelli per curiam or concurrence supports a more charitable interpretation.

-- Michael C. Dorf

The Ominous Normalization of "Casual" Political Violence on the US Right

2026-03-06T12:17:00.003-05:00

A headline from yesterday's New York Times initially seems shocking but, after even a moment's reflection, is not surprising at all: "Republican Senator Attacks Protester." Also unsurprising, but for a very different reason, is that The Times has now changed its headline to this: "Senator Helps Officers Forcibly Remove Protesting Veteran From Hearing." How was the good senator being helpful? The news article under that anodyne headline offers this alarming description:

Video footage of the episode shows [Brian] McGinnis, dressed in a Marine uniform with his arm hooked around a door in the Hart Senate Office Building during a subcommittee hearing on military readiness. Three Capitol Police officers struggle to grab Mr. McGinnis and pull him from the door when Senator [Tim] Sheehy, a former Navy SEAL, dives into the fracas and pulls Mr. McGinnis by the leg.
“No one wants to fight for Israel,” Mr. McGinnis shouts before an audible cracking noise is heard. Mr. Sheehy then hooks his arm around Mr. McGinnis’s arm, which is still bent around the door, and yanks.

Also unsurprisingly, Montana's junior senator posted video of the incident online and pounded his chest about how tough he is: "Capitol Police were attempting to remove an unhinged protestor from the Armed Services hearing. He was fighting back. I decided to help out and deescalate the situation. This gentleman came to the Capitol looking for a confrontation, and he got one." Nicely deescalated, Senator! Whatever the law is with regard to protesters in the Capitol, it certainly does not call for non-police officers to "help" through what amounts to a vigilante pile-on.

Unfortunately, this taste for what I will call casual violence is hardly limited to this most recent incident. The people who have been fed nonstop outrage bait for decades are now deciding that it is not enough to use law enforcement officers, or even masked and unaccountable immigration agents, to punish the people they hate. More and more, they seem to want in on the fun personally. I use the modifier casual to describe such incidents in which non-violent incidents become suddenly violent, where someone in power makes a bland decision that a disfavored person is going to be harmed, even when doing so is not necessary (in degree if not in kind).

To be sure, most of the people in the Trump Administration and its followers do not dirty their own hands. One of Senator Sheehy's colleagues, Senator Alex Padilla of California received this (mis)treatment when he tried to argue with now-former DHS Secretary Kristi Noem nine months ago:

In videos of the incident shared on social media, Padilla identifies himself in front of an array of news cameras and says he has “questions for the secretary” as two men, apparently with the Secret Service, push him away from Noem’s lectern and toward the door.

He seemed to be challenging Noem’s assertion that immigration agents had focused on arresting “violent criminals” when guards pushed him into the hallway. Three armed men, two of them in FBI uniforms, forced Padilla onto the ground and handcuffed him behind his back. Another tells the person recording the video, who identifies himself as a Padilla staffer, to stop recording.

Meanwhile, Trump advisor Stephen Miller provided a moment of unintentional dark humor while addressing Memphis police officers last Fall, when he went on a rant about how tough "we" are: "The gangbangers that you deal with, they think that they’re ruthless, they have no idea how ruthless we are. They think they’re tough, they have no idea how tough we are. They think that they’re hardcore, we are so much more hardcore than they are." It might be easy to picture Miller kicking people while others hold them down, but that is not the same thing as Sheehy's gleeful act of direct violence.

Another recent moment of self-initiated casual violence came not in an explicitly political arena but in the newly politicized environment of higher education. Last month, a professor at The Ohio State University physically attacked a journalist, Mike Newman, for having the temerity to try to ask another question after an interviewee had said that he would take no more questions. According to an excellent rundown of the event in The Times, the documentarian "appeared to be holding recording devices in each of his hands. In a separate video[, the professor] reaches for the device in Mr. Newman’s left hand. Then he uses both of his hands to wrestle Mr. Newman to the ground."

What makes that attack relevant here is that the violence-prone (and honesty-challenged, later claiming that Newman "had laid hands on him") professor in question is part of Ohio State's version of the newest craze on the anti-university right: a civics center. As The Times's report notes: "The state government created the center with the budget that was signed into law in 2023 to 'conduct teaching and research in the historical ideas, traditions and texts that have shaped the American constitutional order and society.'" This is, to understate the point, a bad look. It is also fully of a piece with the idea that casual violence against one's enemies is just dandy on the American right, even from those who purport to be scholars.

Should we truly be surprised? Back in 2017, a Republican candidate for Congress in Montana physically attacked a journalist:

Fox News reporter Alicia Acuna, field producer Faith Mangan and photographer Keith Railey witnessed the incident at [Greg] Gianforte’s campaign headquarters in Montana, according to an account published on the Fox News website. After Jacobs asked Gianforte his question, Acuna wrote: “Gianforte grabbed Jacobs by the neck with both hands and slammed him into the ground behind him.
“Faith, Keith and I watched in disbelief as Gianforte then began punching the man, as he moved on top the reporter and began yelling something to the effect of ‘I’m sick and tired of this!’ … To be clear, at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte, who left the area after giving statements to local sheriff’s deputies.”

Was Gianforte shunned or rejected from politics, either by party leaders or by his red state's voters? Not at all. Indeed, he won that election, won reelection in 2018, then won the state's gubernatorial elections in 2020 and 2024. Moreover, according to the Gianforte Wikipedia page:

On October 18, 2018, during a rally in Missoula, Montana, President Donald Trump congratulated Gianforte for his assault on Jacobs.^[136]^[137]^[138] While verbally praising Gianforte's prowess in carrying out a body slam, Trump made gestures with his hands and arms to pantomime a fighting maneuver.^[139] According to The Guardian, this marked the first time a sitting president had "openly and directly praised a violent act against a journalist on American soil".^[140]

Meanwhile, it is worth recalling that Noem's apparent successor as a Trump cabinet secretary, Oklahoma's US Senator-for-now Markwayne Mullin, disrupted a March 2023 hearing for a Senate committee on which he serves by rising from his chair to leave the dais and fight with a witness (a bemused Teamsters official who looked entirely ready to throw down). Bernie Sanders was chairing that hearing, and he managed to stop Mullin from starting a brawl in the hearing room. (Reportedly, "[b]efore going into politics, Mullin had a brief stint as a pro MMA fighter and earned an undefeated 5-0 record." Personally, I'd stil bet on the Teamster from Boston, but whatever.) Whereas Noem allowed FBI agents to attack Senator Padilla, maybe Mullin will strip down to his singlet and go full Hulk on his critics (Hogan, not Incredible).

I described that incident soon after it happened in "Macho Blowhards and a Certain Political Movement," here on Dorf on Law. And the larger point here is that this violence and threats of violence are of a piece with people who think that they are superior to others and that people who disagree with them are inferior beings. In my column yesterday, "Yes, It Truly Is Sociopathic," quoting my own summary from an earlier column, I described how this attitude can lead some people to insist on taking food away from hungry children -- not as an unintended side-effect of some other policy, but as the deal-breaker in a political negotiation: "Other people, in their eyes, are 'lesser,' and it does not matter if the 'people who really matter' do whatever they see fit, no matter if that means ignoring the rules everyone else must live by."

The term "punching down" is usually used metaphorically, as when comedians say that it is not funny to make attempted jokes about someone who is weaker or who has no realistic chance of fighting back. I even feel hesitant when I punch up, as I noted this past December: "I confess that criticizing [Marco] Rubio always feels not only like punching down but also like bullying a kid who is incapable of fighting back. He has all the gravitas of a Mylar balloon with a clown's face on it, and he exudes the seriousness appropriate to a bachelorette party on Bourbon Street." Did the Secretary of State deserve that? Yes, but even so, I went back and forth before including it in the column.

But the macho perma-adolescent boys on the US right have decided that they are not only comfortable bullying weaker people but that they are no longer willing to stick to metaphorical violence. Now-Governor Gianforte was literally punching down on someone he had thrown to the ground. Others have now decided that they too need to get their jollies through violence. Will there be any adults who will bring things back to something resembling a civilized state?

- Neil H. Buchanan

Yes, It Truly Is Sociopathic

2026-03-05T16:51:00.002-05:00

Approximately thirty news cycles have passed since people were talking about Donald Trump's State of the Union address on February 24 (only nine days ago, incredibly). The post-speech chatter covered a variety of issues raised by that rambling flood of lies, with one controversy erupting over US Rep. Ilhan Omar's shouted response during one of Trump's staged moments. More accurately, virtually all of the discussion of that controversy focused on the fact that Omar said something and that Republicans responded to the fact that she said something. What was not among the talking points was what Omar in fact said. And that matters.

Trump's stunt was yet another attempt to try to paint the Democrats as anti-American, saying: "The first duty of the American government is to protect American citizens, not illegal aliens." When the Democrats did not play into that nonsense and refused to stand and applaud, as the ~~trained seals~~ Republicans were doing, Trump yelled at the Democrats: "You should be ashamed of yourself, not standing up. You should be ashamed of yourselves." One conservative columnist actually described Trump's cheap theater this way in The New York Times: "Democrats are feeling emboldened on immigration amid Trump’s controversial enforcement push. But Trump effectively invoked what is still one of his strongest issues, while drawing a contrast with Democrats." Right. Sure. Uh huh. Patriotism has always been the last refuge of a scoundrel, but I'm with us and you're with them "effectively invoke[s] one of his strongest issues." Now I understand.

That assessment of Trump's dishonesty is not merely wrong. It is completely backward. The contrast was definitely drawn, but not in Trump's favor. As noted above, Rep. Omar did say something during the Republicans' ovation, which of course led to attacks on her from the party that had little problem with their own people repeatedly heckling President Joe Biden. Trump, according to The Detroit News, later wrote that Omar and fellow Democratic Rep. Rashida Tlaib "'screamed uncontrollably' during his State of the Union speech and 'had the bulging, bloodshot eyes of crazy people.' In the message, he called them 'lunatics' and said they 'look like they should be institutionalized.'" Have we reached the point yet where "every accusation is a confession" for Republicans can be shorthanded to EAIAC?

But again, the point is that Omar said something in that moment that was on point and should have been the focus of the discussion, rather than the pearl-clutching from those who still claim to worry about decorum. Omar did not say something generic, like the infamous "You lie!" moment in President Barack Obama's 2009 address to Congress. (Notably, the shouter in question soon publicly apologized and then spoke directly with the White House, where the chief of staff accepted the apology.) Of course, Obama had not lied, whereas Trump did nothing but, which would have made a stock heckle like that at least defensible in being true.

What did Omar say? Recall that Trump's challenge was to get everyone to agree that "[t]he first duty of the American government is to protect American citizens, not illegal aliens." Omar's response: "[Y]ou have killed Americans." And that is no lie. Not only has the Trump Administration killed Americans whose names we now recognize (Renee Goode and Alex Pretti) but others whose murders never made headlines. The first duty is to protect American citizens, right? The first duty, not "a nice thing to try to do, if it's not too inconvenient while we go after brown people or anyone who speaks Spanish," right? So much for that.

And now we are in a war of choice that inevitably leads to the deaths of Americans and other innocents abroad, including schoolchildren -- who, it should be obvious, are not "illegal aliens."

Although less dramatic, it is also of a piece with Trump's disrespect for human life (including the lives of Americans) for him to have included this in his State of the Union speech: "[I]n one year we have lifted 2.4 million Americans - a record - off of food stamps." No, Trump and the Republicans did not "lift" anyone off of food stamps. They simply threw them off the rolls, and Trump considers it a bragging point that 2.4 million people who had been eligible for nutritional assistance were summarily cut off.

Importantly, this is hardly new to the Trump-led Republican Party. Back in 2012, I wrote a Verdict column in which I endorsed some strong words from a Times op-ed by Nicholas Kristof, who responded to then-extreme conservatives' lack of compassion for dying people by writing this: "To feel undiminished by the deaths of those around us isn’t heroic Ayn Rand individualism. It’s sociopathic. Compassion isn’t a sign of weakness, but of civilization." My column then explained why the word "sociopathic" was not over the top. Relying on both clinical and dictionary definitions relevant to the question, I wrote:

While there are many different definitions of the word “sociopath,” there is a common element to all of them: sociopaths lack the normal constraints of conscience when it comes to pursuing their own selfish ends. Other people, in their eyes, are “lesser,” and it does not matter if the “people who really matter” do whatever they see fit, no matter if that means ignoring the rules everyone else must live by.

One dictionary, for example, defines “sociopath” as “a person with a psychopathic personality whose behavior is antisocial, often criminal, and who lacks a sense of moral responsibility or social conscience.”

The specific policy question that animated my column back then in fact had to do with food stamps: "[T]he Republican Majority Leader in the U.S. House of Representatives, according to a recent report, advanced an agenda ... 'to reduce programs for the poor, including eliminating nutrition and education financing.'" At that time, it was still (barely) possible to be shocked that a top Republican leader would explicitly condition his party's support for a bill to end a debt ceiling crisis on harming millions of the most vulnerable Americans. Now, it hardly counts as news. In fact, before Trump's return to office, that kind of sociopathy had become standard, even for those who claim to espouse Christian virtues.

Today, that political party and those self-righteous hypocrites stand behind a government that deprives people of life, liberty, and the pursuit of happiness without even attempting to provide due process to figure out whether the people they are harming are even guilty of anything. They cheer when people are left to starve. They show no concern that people are dying in the new war for which the White House cannot keep its excuses straight. People are dying? Yeah, and ...?

I happen to disagree that "[t]he first duty of the American government is to protect American citizens, not illegal aliens." One might hope that the first duty of any government is not to inflict gratuitous harm and death on disfavored people essentially for kicks. That ought to be an easy bar to clear. Yet here we are.

- Neil H. Buchanan

Thanks to Anthropic for Exposing the Trump/Hegseth Plans for Mass Surveillance and Killer Robots

2026-03-04T07:00:00.099-05:00

In my latest Verdict column, I discuss Anthropic's refusal to bow or bend to pressure from the Trump administration to allow its AI products to be used for mass surveillance or in autonomous weapons. Most of my column addresses the following multi-step puzzle: (1) Anthropic was seeking carveouts from a contract that would allow the Department of ~~War~~ Defense to use its AI products for "any lawful purpose"; (2) but mass surveillance is not lawful, whereas the use of autonomous weapons under current conditions would do so little to minimize civilian casualties as to likely violate international law; (3) thus, these activities are already arguably excluded by the general provision; (4) so why did Anthropic believe it need the carveouts?

In the column, I offer a number of possibilities. The short of it is that Anthropic rightly distrusted the Defense Department to correctly construe the law and steer clear of violations. In the column, I also discuss the circumstances in which mass surveillance or autonomous weapons could be legal. I conclude with the obvious inference that the refusal of Donald Trump and Pete Hegseth to bend reveals that they want to be able to use AI for mass surveillance and autonomous weapons. What could go wrong?

We are familiar with mass surveillance from the Edward Snowden revelations in 2013, but, so far as AI technology goes, that was a very long time ago. One very important limiting factor in 2013 and earlier was the impossibility of human beings working for the government processing all of the private information they were scooping up. Sure, the government could target particular foreigners (or illegally target Americans) but the average person could take some comfort from the fact that even if the government was recording their conversations, there was not the capacity to pay attention. AI changes that because AI systems can look through data many orders of magnitude faster than humans can. To use a speciesist analogy, earlier surveillance made known targets vulnerable to a kind of spear-fishing, but it was easy for the rest of us to swim through the large holes in the net; newer surveillance tools can catch everybody.

As for autonomous weapons, it is sometimes said that they have the great advantage of not risking the lives of American members of the armed forces. That is certainly an advantage of killer robots over human warriors, but that's not the right comparison. The right comparison is remote control weapons. The U.S. and other countries already deploy such weapons. They're called drones.

As for battlefield humanoids or autonomous tanks, we will likely have remote control killer robots before we have fully autonomous killer robots. Consider that Neo, one of the first household robots that consumers can pay for, operates by remote control for a great many tasks. But some day, perhaps in the next few years, there will be autonomous killer robots (and also presumably autonomous robots that can load a dishwasher in under an hour). When that happens, would it be reasonable to put them on the battlefield?

Truly autonomous weapons have advantages over remote-controlled ones. They don't depend on communications that can be faulty or jammed. And they can react and act much more quickly than a remote-operated weapon because AI processes information much more quickly than the humans back at the control center.

But that same advantage is also a moral and potentially legal disadvantage. Taking humans out of the loop gives control to computer systems that can make grave mistakes. The result, as I discuss in my Verdict column, is a potential for the AI to target civilians or to inflict disproportionate collateral damage. As I also note in the column, the experience of AI-assisted targeting by Israeli troops in Gaza is very concerning.

Suppose, however, that some day--perhaps not too far in the future--the error rate of the AI is lower than the error rate of humans. Suppose, in other words, that autonomous weapons programmed with the laws of war are, all things considered, less likely to kill or wound civilians than are either humans acting alone, humans remotely piloting battlefield drones, or humans deploying AI to aid their decision making but still making the ultimate decisions themselves. In such a world, would it still be morally objectionable to deploy autonomous weapons? Might it actually be morally obligatory to do so in such circumstances?

That question is not so different from the questions that arise concerning the transition from human-driven cars to fully self-driving ones. And people in power in many U.S. jurisdictions have already decided that the benefits of autonomous vehicles outweigh their risks. Are autonomous weapons categorically different?

I admit to not having a strong view, at least with respect to the hypothetical future in which autonomous weapons are less likely to attack civilians than humans are. But we live in the reality of today, in which LLMs still hallucinate and are much more likely than humans to escalate to nuclear war. Call me a Cassandra, but I feel like that ought to count for something.

-- Michael C. Dorf

Guns, Drugs, and Supreme Court Insanity

2026-03-03T07:00:00.001-05:00

Yesterday, the Supreme Court heard oral argument in United States v. Hemani, which raises the issue whether a federal law prohibiting the possession of guns by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment. The defendant in Hermani admitted to using marijuana about every other day. The FBI searched his home and found a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. The prosecution's case rested solely on the defendant's “habitual use” of marijuana, which is how the government currently defines “unlawful user.”

As I previously wrote here, this case should not be decided under the Second Amendment but on the basis that the government’s definition of “unlawful user” is too vague to give fair notice as to who is and who is not subject to the law. But, alas, the Roberts Court seems poised to decide this case under the infamous Bruen test, which allows the state and federal governments to regulate guns only if they can point to similar laws enacted at the Founding or maybe in 1868. The government’s asserted modern policy reasons are, in theory anyway, off limits.

This bizarre test led to an insane oral argument with the Justices going down rabbit holes to ascertain whether today’s law was similar to laws banning “drunkards” from owning guns in 1791. I am quite sure there has never been an oral argument so laden with questions about just about every drug you or I have ever heard about or so riddled with absurd historical inquiries. This is a blog post, not a law review article, so I cannot do total justice to the insanity but here is a sampling.

Justice Alito felt obligated to go through the history of illegal drugs in this country:

JUSTICE ALITO; Heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959. Marijuana existed, but my understanding, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century. Is that consistent with your understanding of the situation?

MS. HARRIS: That is correct.

JUSTICE ALITO: So, we don't know what the founders -- what those who adopted the
First Amendment -- or, I'm sorry, the Second Amendment or the Fourteenth Amendment thought about illegal drug use per se?

MS. HARRIS: Correct.

JUSTICE ALITO: There's talk --there's a lot of talk about alcohol. Do you think that the regulation of alcohol is exactly the same as the regulation of illegal drugs? Isn't -- doesn't alcohol -- isn't alcohol --doesn't it have a different place in the history and culture of the west? Aren't there a lot of people who consume alcohol in moderation and have done so for centuries for purposes -- primarily for purposes other than the effect that it has on one's brain?

Meanwhile, Justice Gorsuch, wrestling with the definition of “drunkard” at the founding, took us on this tour of some of the Founding Fathers’ drinking habits:

JUSTICE GORSUCH: We have to remember the founding era… John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much a user of alcohol, he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?

Justice Barrett was much more concerned with founding era equivalents to prescription drugs used by people today who do not possess the drugs with a lawful prescription:

JUSTICE BARRETT: When I look at these drugs, however, I mean, Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall, I mean, none of those drugs strike me -- I mean, I --I'm not a pharmacologist, but none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue. Is it your position that all of the drugs that I just mentioned would pose a risk of violence and dangerous behavior . . . ?

So, let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too lawfully, with the prescription, but then, you know, you take it unlawfully because you break into your spouse's Ambien jar….

Is it the government's position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous? What is the government's evidence that using marijuana a couple times a week makes someone dangerous?

Meanwhile, Justice Kavanaugh (would he be a modern day “drunkard”?) was more concerned with cars though he was less than clear how this was relevant under the history-only Bruen test:

JUSTICE KAVANAUGH: Do you think the government could prohibit a habitual drug user
from owning a car?

And so it went until finally Justices Jackson and Sotomayor injected some sanity into the argument. They were confused why the other justices were asking questions about the government’s reasons for the law given that the Bruen test specifically rejects such an analysis:

JUSTICE SOTOMAYOR: That is precisely what the Bruen test prohibits, that we don't credit the judgments of the modern legislature about who is dangerous and who needs to be disarmed as a result. The entire point, I thought, of the Bruen test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature around who was dangerous and who gets to be disarmed.

JUSTICE JACKSON: So, I guess maybe I just don't understand how the tests work
anymore. Maybe it's post-Rahimi, I'm not sure, but it seems like you're asking us to trust
Congress's legislative judgment here that unlawful drug users pose a heightened risk of misuse but that this test really doesn't provide us a way to check that in any meaningful sense. And I guess the benefit of the pre-Bruen kind of means-end scrutiny is that you got to the bottom of whether what Congress was actually doing here was legitimate and whether the means that they had chosen, the disarmament of this person, was tailored, sufficiently tailored, to that aim. And what's worrying me is that the current Bruen test modified by Rahimi or what not is not allowing us to assess that, and that's really the problem in this situation…that you're being asked seem to all relate to people's concern that even if we all agree that Congress can legislate to disarm people who are dangerous as a general matter, that this person in this circumstance really is not dangerous. And -- and your test doesn't seem to get to allow us the way we're talking about it to assess that. Can you help me with how the means-end scrutiny analysis is being folded into Bruen?

And there you have it. Judges trying to decide hard constitutional law cases without balancing the government’s interests against the right asserted turns such cases into an exercise into historical fantasy, bizarre analogues, and a complete lack of transparency by the Court about what factors actually drive its Second Amendment decisions.

The government obviously should be able to take dangerous killing machines away from people who unlawfully use illegal drugs as long as the government defines the people subject to the law with the requisite clarity. I am skeptical that the term “habitual” drug user provides that clarity, though I may be wrong. What the justices should not care about is how many drinks the founding fathers had for dinner or when and where heroin was first made illegal or what "drunkard" actually meant in 1791.

As I’ve written before, Bruen is constitutional insanity, and the argument on Monday proved my point beyond any and all reasonable doubt.

Eric Segall

Trump's War Against Iran is Unconstitutional

2026-03-02T13:58:00.003-05:00

In my last essay for this blog, I explained why the U.S. violated international law by initiating its war on Iran. I did not directly discuss whether Israel also violated international law by initiating the war, but I arguably implied that it did. Israel faced (and continues to face) more serious threats from Iran than the U.S. did (or does), but under the truce that more or less held until a couple of days ago, Iran's proxy Hezbollah was not attacking Israel, so that Israel wasn't being attacked or under threat of imminent attack. (Likewise with respect to Hamas, which has also received support from Iran). Therefore, Israel could not claim self-defense under Article 51 of the U.N. Charter. However, if I was mistaken about that assumption and Israel acted in lawful self-defense, then the U.S. attack would also have been lawful under Article 51 as collective self-defense.

To be clear, I don't believe the war is lawful. Moreover, even if we could regard Israel as under actual or imminent attack by Iran, that would go only to whether initiating the war was valid (jus ad bellum), not to the conduct of the war (jus in bello), which also violated international law, insofar as the initial decapitation strike targeted at least some civilians.

In any event, in today's essay, I pivot to U.S. constitutional law.

Congress has the power to declare war. It is often noted that the U.S. has not declared war since World War II, but that's quite misleading. As I noted in a 2002 column, formal declarations of war are largely a relic. What matters is that Congress, the branch of government closest to the people, go on record as supporting the spilling of American (and foreign) blood and the spending of treasure on the war.

Don't take my word for it. Consider what Alexander Hamilton wrote in Federalist 69 in response to critics of the Constitution who contended that it created a too-powerful presidency:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature . . . .

Prior presidents have understood that obtaining congressional assent to war is not only a constitutional requirement but sound politics. In each of the last three major U.S. wars in the Middle East -- Iraq in 1991; Afghanistan in 2001; Iraq in 2002 (in advance of the 2003 war) -- Congress passed an Authorization for the Use of Military Force or AUMF, which accomplishes the core domestic constitutional purpose of a declaration of war.

None of that is to deny that there are circumstances in which the president, as commander-in-chief, has the power and duty to use military force without first obtaining congressional assent. Those include minor skirmishes (such as those against pirates) as well as major conflicts in which the U.S. is attacked by a foreign power or domestic insurrectionists. It was in the latter context that the Supreme Court in 1862 upheld President Lincoln's use of military force against the rebels without prior congressional authorization.

The constitutional limits on the president's power to unilaterally initiate a war were also recognized in the third heading of the War Powers Resolution (WPR) of 1973, which declares:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

It is quite clear that President Trump did not comply with the WPR. The United States bombed Iran's nuclear sites last June. He threatened Iran with retaliation for its shooting of protesters two months ago. There was more than adequate time to go to Congress seeking authorization for the use of force, contingent on the failure of diplomacy--much along the lines that President George W. Bush sought authorization for the use of military force in Iraq in October 2002, which he did not use until March 2003.

Trump also did not comply with the further requirement of the WPR that, within 48 hours of initiating hostilities, he deliver a written report to congressional leaders "setting forth: (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement." That deadline has now passed without any indication of Trump's having complied. (The administration reportedly briefed most of the "gang of eight" shortly before the attack, but an oral briefing is not the written report required by the WPR.)

Some readers might be puzzled by my having slipped from arguing that the attack on Iran without prior congressional authorization is unconstitutional to arguing that it violates the WPR. However, the WPR itself asserts that it essentially restates what would otherwise be constitutionally required. Its stated purpose is"to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities . . . ."

To be sure, since the WPR was adopted, various presidents have claimed it goes beyond the constitutional requirements or is affirmatively unconstitutional insofar as it imposes limits on the president's inherent powers as commander in chief. In addition, even when presidents have not directly contested the validity of the WPR, they have sometimes construed it quite narrowly. For example, in his 2011 testimony to Congress, former Yale Law School Dean Harold Koh (who was then the Legal Adviser to the State Department) took (and cited prior practice to support) the view that the U.S. was not engaged in "hostilities" in Libya that trigger the WPR's 60-day limit on the use of force without express congressional approval because while U.S. forces were inflicting damage on Qadhafi's forces, the latter lacked the capacity to fire back effectively at the former.

Even assuming that Professor Koh was correct in 2011, that rationale does not apply now, as the U.S. and its allies have already incurred lethal casualties. More broadly, I find the arguments various presidential administrations have offered against the constitutionality of the WPR to be unpersuasive and self-serving. The core principle of the WPR is that the president does not have carte blanche to initiate wars of choice. That is constitutional in the strong sense that it simply reiterates the principle that Hamilton rightly ascribed to the Constitution's limited delegation to the president to conduct wars, not to initiate them.

Meanwhile, votes are expected in Congress this week on whether to disapprove the continuation of the war. Any such measure is unlikely to succeed. Indeed, given Republican control of Congress, it seems more likely that Congress would authorize the continuation of the war. Would that render it legal?

So far as the U.S. Constitution is concerned, the answer is yes. In The Prize Cases the Supreme Court determined that President Lincoln acted constitutionally in using military force in response to the rebellion of southern states but added that to the extend that he exceeded the scope of his authority as commander in chief, subsequent approval by Congress was effective in retroactively authorizing his conduct. Note, however, that such ratification, were it to occur with respect to Iran, would not render the war legal under international law.

I'll close with three caveats. First, in saying that the war is illegal and unconstitutional, I do not claim that any U.S. court would have jurisdiction to declare it so. The courts have invoked the political question doctrine and standing limits to avoid adjudicating the legality of prior conflicts. There is every reason to think that they would do the same here--except perhaps in a tangential context involving a dispute between private litigants over property or a contract, where the result would not be an injunction against the conduct of the war (or even a declaratory judgment).

Second, both in person and online, a number of people have asked me why I'm bothering to describe the illegality of the war in light of the fact that Trump obviously doesn't care about following the law in this or most other settings. Partly I suppose it's just habit, but I also think it's worth pointing to the law as part of a political argument. The fact that a course of action is illegal may do some work in strengthening opposition to that course of action.

Third and finally, in saying that the Iran war is illegal and unconstitutional, I'm not necessarily saying that one should oppose it, all things considered. I do oppose it, all things considered, but illegality and unconstitutionality are not a sufficient reason for opposition. Some actions are morally or otherwise justified even though illegal.

In recent days, a fair number of Iranian Americans who have long opposed the brutal repression perpetrated by the Islamic Republic have expressed deep satisfaction with the killing of Ali Khamenei and other leaders of the regime. I do not begrudge them those feelings, and they give me pause. If I thought it likely that the regime would fall and be replaced with a democratic government that respects human rights, I would think it a difficult question whether the war was worth supporting, notwithstanding its illegality.

However, President Trump's call to Iran's unarmed citizens to rise up strikes me as extremely unlikely to result in that outcome. The best realistic possibility is probably something like the Venezuela model--in which a pragmatic regime member assumes power and is more friendly to the United States and much less of a menace to Israel and the Sunni-led countries in the region. Indeed, given Trump's statements about wishing to talk with the new Iranian leadership, that appears to be the administration's goal. Such an outcome is undoubtedly better than some of the alternatives, but it is not a sufficient basis for this war, given the certain costs in blood and treasure as well as the possibility of substantially worse outcomes. And it certainly does not justify the president's having undertaken the war unilaterally when he could have sought congressional approval.

-- Michael C. Dorf