Dorf on Law

When Will Trump Try to Change "New Mexico" to "New America?"

2026-08-31T07:00:00.000-04:00

Residents of Albuquerque, Sante Fe, and other parts of New Mexico should count themselves lucky that Donald Trump is so ignorant that he is probably unaware of the existence of their state. Should he learn of it, then the next time that the Mexican government takes some action (or inaction) that displeases him, he would likely order the Secretary of the Interior and the Board on Geographic Names (BGN) to begin referring to the Land of Enchantment as "New America." After renaming things for himself (the Kennedy Center, the U.S. Institute of Peace, Palm Beach International Airport, dozens of Trump Towers, etc.), Trump's signature naming moves involve problematic throwbacks (Fort Bragg, Mt. McKinley), bombastic ones (Department of War), or a lazy default to "America"--as with the erstwhile Gulf of Mexico and Lake Ontario.

Or maybe not so erstwhile. In my latest Verdict column, I discuss Trump's executive order involving Lake Ontario. I explain that: (1) the renaming of Lake Ontario is not official yet, despite the fact that the cartographers at the world's third largest company have already adjusted Google Maps (as seen in the U.S.) so that the easternmost and smallest of the Great Lakes is now labeled "Lake America;" and (2) when the renaming becomes official, i.e., after the Secretary of the Interior and the BGN do Trump's bidding, it will be illegal. My column argues that New York State and/or businesses in New York that have "Lake Ontario" as part of their name (and will thus suffer economic harm from the name change) can and should sue under the Administrative Procedure Act (APA) to have the renaming blocked.

I hope my column speaks for itself. Here I want to anticipate and respond to three arguments that I imagine the Department of Justice might make to defend the renaming if and when New York or a Lake Ontario-themed business sues. (By the way, it's not too late for an APA suit by one of the states that borders the Gulf of Mexico, although those are all red states, so that seems unlikely. Perhaps a business in one of those states that has "Gulf of Mexico" in its name--and whose owners are not cowed by threats from their MAGA neighbors--might have the courage to sue.)

(1) In my column, I explain that New York has both substantive and procedural claims rooted in the compulsory language of 43 U.S.C. §§ 364–364f. On the substantive side, the Secretary of the Interior and the BGN are, by statute, supposed to be promoting "uniformity in geographic nomenclature." Creating confusion by abandoning a centuries-old name--but only on one side of the border and only for the federal government and those businesses (such as Google) sufficiently fearful of the impetuous President to obey in advance--hardly serves that purpose.

On the procedural side, I note that under §364b, the Interior Secretary and the BGN are supposed to give "full consideration to the specific interests of particular Federal and State agencies" in "formulat[ing] principles, policies, and procedures to be followed with reference to both domestic and foreign geographic names." I suppose that a bold DOJ lawyer could say that this language obligates the Secretary and the BGN to give state agencies consideration in the formulation of principles, policies, and procedures, but not to take account of the interests of state agencies in any given case.

That strikes me as a very bad argument on its face. Presumably the reason Congress instructed the Secretary and the BGN to formulate "principles, policies, and procedures to be followed" was so that they would, in fact, follow them. Moreover, as I explain in the column, things are even worse here because the BGN has another policy (Policy I.1 here) that purports to excuse itself from its statutory obligations whenever the President chooses a name. In other words, the BGN has formulated a policy that most certainly does not give full or even any consideration to the needs of state agencies whenever the President capriciously decides to change a geographic name. That is quite clearly contrary to the statutory framework.

(2) Might the DOJ argue that the President has inherent power to designate geographic names? This strikes me as plausible only to the extent that it concerns internal executive branch purposes. So, if Trump instructed all executive branch personnel in their intra-executive communications to refer to Lake Ontario as "Lake America," I acknowledge that would be permissible, albeit stupid. However, the executive order does not apply only to internal executive branch matters. Among other things, the name change it orders the Interior Secretary and the BGN to adopt applies to "contracts" that the federal government makes with private actors. Those are, by definition, not purely internal to the executive branch.

Does the President have any inherent power to create or change geographic names that apply outside the government, as in contracts with private parties? I don't see where that would come from, but even assuming there is some such power, it is surely defeasible by Congress, acting pursuant to its powers to regulate interstate and foreign commerce, to make rules governing public property (Article IV, § 3, cl. 2), and arguably more. Put in terms of Justice Robert Jackson's influential Steel Seizure concurrence, this is a category 3 case in which the President's already dubious inherent power to assign geographic names is at its "lowest ebb" in the teeth of Congress's directions to foster uniformity and account for state interests.

(3) The DOJ might say that President Trump is simply doing what his predecessors did, perhaps pointing to the change from Mt. McKinley to Denali during the Obama administration (which Trump sought to change back in an executive order he signed on the first day of his current term, the same one that directed the renaming of the Gulf of Mexico). But the change to Denali is entirely different. It began with a request from Alaska itself in 1975 and didn't become official for another 40 years when it was accomplished by the Secretary of the Interior and the BGN after years of study and consideration of the statutory factors. No one could plausibly argue that the change to Denali set any kind of precedent for ignoring state interests or for rushing through a name change to please a President who is acting in a fit of pique.

I'm sure the DOJ lawyers will come up with other equally bad arguments to contest an APA case by New York State or an impacted private business. I'm also pretty confident that anything the DOJ throws at the wall will get at least two and possibly as many as six votes from the Supreme Court. But that's true of just about everything. There's an opportunity here to undo one small but symbolically important bit of petty stupidity by the Trump administration. I urge the relevant lawyers to seize it.

-- Michael C. Dorf

Can the US's Political System Remain Stable in the Face of Growing Threats of Violence?

2026-08-28T11:04:10.219-04:00

Note to readers:

Last week, I wrote "Debt Fear-Mongering Has Moved from Mockable to Dangerous," discussing the carefully orchestrated public freakout over the -- all together now -- "forty trillion government debt." Over on Verdict, I have now followed up with a two-part column, "Questions About Federal Debt Are Serious, but the Wailing and the Gnashing of Teeth over the '$40 Trillion Debt' Are Not" (Part One yesterday and Part Two today). There, I dive into some of the technical details that I was unable to fit into last week's column, and I also discuss the more mundane -- but extremely important -- consequences of increases in borrowing, in particular how public (or private) borrowing can move interest rates and thus exacerbate affordability problems.

Because I hope that many readers will click over and read both parts of that column, I am keeping today's column here a bit shorter than usual. Enjoy!

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Using the now-passé story about Todd Blanche's confirmation as Attorney General of the United States as a starting point, I have recently been thinking about the nature of political violence in this country, with many of those thoughts gathered in yesterday's column. I have hardly been alone, given that political violence is becoming all but impossible to ignore as a real and growing threat.

Professor Dorf, for example, notes in a column earlier this week the very real concern that the upcoming midterm elections could be marred by violence. He describes (and explicitly agrees with) an analysis by Professor Ned Foley, who worries that a pro-Trump "rogue clerk" could refuse to certify the victories by Democratic congressional candidates this November. In that circumstance, legal redress (mandamus) should resolve the matter, but (in Professor Dorf's words) "Professor Foley worries that such a scenario could nonetheless spark a constitutional crisis and political violence reminiscent of (and perhaps even worse than) January 6, 2021."

More generally, at the end of a column two weeks ago, Professor Dorf wrote that, "through his grossly irresponsible statements and behavior (especially the J6 pardons), [Trump] has fostered an environment in which the actuality and threats of political violence have increased." The hot link there leads to a PBS piece from last September, "Analysis: What data shows about political extremist violence," which responded to (among other things) Trump gargoyle Stephen Miller's claim that left-wing political groups constitute "a vast domestic terror movement."

That analysis concludes: "Based on our own research and a review of related work, we can confidently say that most domestic terrorists in the U.S. are politically on the right, and right-wing attacks account for the vast majority of fatalities from domestic terrorism." Which is not to say that there are no violent actors outside of the groups of people who idolize Trump, but as the authors of the PBS analysis write: "[R]esearch shows that the majority of political violence comes from people following right-wing ideologies."

In my two pieces inspired by the Blanche disaster -- "Cowardly Senators and the Specter of Political Violence" last week and "Cultishness, Social Comfort, or Fear of Violence: Why Not All Three?" yesterday -- I wondered whether the three retiring Republican senators who flirted with taking a stand before capitulating to Trump were worried about being personally targeted with retributive political violence (against themselves and possibly their families). In a very odd sense, it would be uncomfortably comforting to imagine that their surrender was based on something that serious, because the only other explanations on offer are (as I described yesterday) their putative worry about being shunned at the country club.

In any event, there is a key difference between fear of violence as a general matter and as a personal matter. Although the January 6 insurrectionists were targeting specific people like Nancy Pelosi and Mike Pence, the general mayhem of that situation meant that death would be be nonspecific. That is, no Trump supporter set off to the Capitol that day saying, "I'm going to beat up some policemen and possibly kill some of them," unless they were also saying "or anyone else who stands in our way." Who would die -- if anyone -- was not their concern. And if things go sideways in the upcoming midterms, the thugs will go after "the poll workers" or people (most likely non-White people) standing in line to vote, but again with no specific intent aimed at a person who is identifiable in advance.

By contrast, the kind of fear that those three Senators might have felt or that Pence definitely felt is directed at them personally. Someone is threatening to kill them or their families. (As an aside, this category does not include chickenhawks like Senator Josh Hawley, whose profile in manliness was not in response to anyone going after him by name.) There are people who will threaten to kill specific political actors in an attempt to change their actions and decisions. And as a grim aside, some of those psychopaths would gladly kill their targets even after getting what they wanted.

"I'm going to kill you because ..." or "I'm going to kill you unless ..." is one category. "I'm willing to kill anyone who might stop us, and I don't particularly care if you're one of them or not" is another. Both are politically toxic, and unfortunately both are growing threats, mostly -- again, not entirely, but definitely mostly -- because of the right-wing cult that has taken over US politics. One would hope for voices of reason to step forward, but they too would worry about being targeted. This is why it is sensible to fear for the country's continued stability.

Cultishness, Social Comfort, or Fear of Violence: Why Not All Three?

2026-08-27T14:18:52.830-04:00

Because of the endless churn of the news cycle, the capitulation by three lame-duck Republican Senators to the Todd Blanche nomination not even three weeks ago is now very old news. In a Dorf on Law column last week, I discussed those three poseurs -- Bill Cassidy, John Cornyn, and Thom Tillis -- who preened about for a few weeks claiming that they might possibly, maybe oppose the obviously corrupt and dangerously anti-constitutional Blanche as (non-Acting) Attorney General. They all made plenty of noise and then, completely predictably, fell in line.

Why come back to that today? After all, the world now must contend with a declared trade war between Canada and the United States, as well as [quickly reloading the main page of the New York Times website to see what fresh hell awaits] the evil expansion of ICE activities to deport record numbers of powerless people (now specifically targeting people who are not criminals, thus no longer even pretending to go after "the worst of the worst"), threats to rig the US midterm elections, and everything else.

The short answer is that I ended last week's column with a rhetorical-ish question to which I planned to return, and I am nothing if not dogged. Before I get back to that question, however, I should emphasize the unique procedural fact about the Blanche nomination that I mentioned last week: Nothing was ultimately at stake. That is, during the brief time that the Three Stooges were pretending to be clever operators ("Oh, a wise guy, eh?"), Donald Trump announced that even if the nomination failed, Trump would simply keep Blanche in the office as Acting AG, as had been the case since Trump fired Pam Bondi in April.

This oddity does make it somewhat more difficult to assess what counts as a smart move in the Blanche nomination fight. My take has been that it should have turned the decision on how to vote into a free pass for any Republican who wanted to look statesmanlike. On the other hand, it arguably means that there was no reason to risk whatever downside might come from defying Trump. "Why spend even a farthing for naught?" one might reasonably ask.

Even if that is the better way to think about it, however, that merely puts us back where we started, because it requires asking exactly what it was that any potentially dissenting senator would be risking. What was the farthing, the shilling, or the pound? The three men in question were particularly interesting specimens, because the one big fear that everyone talks about openly -- being driven out of public office by a vindictive Trump -- had already happened in spades to Cassidy and Cornyn, while Tillis announced that he would not even try to run for reelection after Trump attacked him last year.

In essence, I boiled it down to two possible explanations (deliberately leaving aside the possibility that they are true MAGA believers), and because those three men's votes could not be explained by the relatively unscary option, I ended the column with this: "[T]hese dead men walking could not even stand up and make the easiest call in the world. What makes them still so afraid? What other explanations remain?" Why do I say that I had reduced the possibilities to only two explanations? Because I noted that Alaska Senator Lisa Murkowski (who did vote against Blanche, albeit not as the deciding vote) had talked last year about everyone being anxious about Trumpian retaliation, and I surmised that she meant something more than mean tweets and threats to back challengers in primaries. That is, violence.

In retrospect, using the phrase "dead men walking" at exactly the moment when I was trying to distinguish between the deaths of political careers and more literal deaths was a bit on the nose. In any event, it is important to consider whether there are other possibilities, and then to return to why I still find fear of literal violence to be the most important explanation.

The day after I published that column, I had the dumb luck to stumble upon an interview of the famed political scientist Norman Ornstein, who made his name mostly during his time at the conservative American Enterprise Institute and who teamed with co-author Thomas E. Mann of Brookings to write a bombshell op-ed in 2012, "Let’s Just Say It: The Republicans are the Problem," which made a splash as part of the rollout of their book It's Even Worse Than It Looks. Their uncompromising language was notable, especially coming from two very centrist/center-right commentators: "The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition."

Ornstein's interview on Zeteo with John Harwood (formerly of The Wall Street Journal and CNN, among other very mainstream outlets) is almost forty-seven minutes long -- and very much worth the time -- and covers a wide range of topics, but I want to focus on two things he said that specifically relate to my not-actually-rhetorical question: What other explanations remain?

Harwood directly asked Ornstein about my Three Stooges and the Blanche debacle. Ornstein first offers (starting at the 7:03 mark) an explanation that mashes together the behavior of cults with the behavior of people who merely want to live pleasant lives: "I think there are a couple of reasons for this. The single largest one is ... you have to look at the nature of a cult. In a cult, the pressure to avoid being shunned or excommunicated is enormous."

Ornstein then, however, recalls how former Ohio Senator Rob Portman had been a Republican cultist and decided to leave office and retire to Cincinnati. Ornstein notes that Portman was not going to become a lobbyist or anything that would require continuing to cozy up to Republican power brokers, but Portman went home and "doesn't change a thing" -- that is, he did not suddenly say something like, "Whew, now I don't have to be the crazy liar that I needed to be while I cared about a political career, so now I can set the record straight and say what I honestly think."

Again, Portman did not do that, instead choosing to say nothing. Ornstein first offers this partial explanation:

Rob goes back, and he is going to go out and play golf with his friends ... and then have lunch at the country club, and then at night, he and his wife and a few couples might go to the City Club for dinner, and they'll be surrounded by the people they've been around for their entire lives. And the idea that they'd walk into a room and be met with hisses or cries of "Traitor!" or have friends refuse to talk to them was just too much.

Again, I think that Ornstein is conflating cults with the more normal demands of polite society, but in Portman's case, I think that both stories happen to fit. In any case, Ornstein is clearly saying that there are social pressures that are simply too strong for most people to resist. After I published my column, I received an email from a reader who thought possibly that "all of them may attend the same church." I honestly have no idea whether that is true, but they all certainly worship at the alter of going along to get along.

The same reader also suggested that "they believe Blanche is the man for the job to keep 'the world they know' in place. They are still old wealthy-white guys, who want to keep what they have." Although I do not see how Blanche as AG per se is necessary to allow them to keep what they have, the telling point is that voting for Blanche is necessary -- that is, not because of what any particular Cabinet member might do, but to avoid the social ostracism that Ornstein colorfully describes (regarding some of the least colorful people on earth).

But we now return to the main event, because Ornstein confirms my suspicions about the physical dangers of crossing Trump (starting at 8:50):

Donald Trump ... uses death threats, threats of violence against the family. And he doesn't have to do it directly. It is the same as in a crime family. 'It would be a shame if something were to happen to your family. Be a shame if something happened to your horse.' ... We know that when [Cassidy] cast the deciding vote for RFKJr ... that there were all kinds of stories from his colleagues that his family faced serious threats. I have little doubt ... that when it came to voting for Todd Blanche ... that he was fearful.

To be clear, Ornstein is not saying anything new here (and I doubt that he would claim to be doing so), but it is interesting to have someone as plugged into DC culture as he is sharing what he has heard from and about scared pols. His version of events does, after all, fit into what Mitt Romney revealed (far too late) about the threats that his then-fellow Republican senators faced in the post-January 6 Trump impeachment trial. In my October 5, 2023 Dorf on Law column, I quoted a report from The Atlantic:

[D]uring the Senate trial, [w]hen one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.

Ornstein went out of his way to add this, regarding Cassidy specifically but ultimately about all of the Republicans who will not stand up to Trump:

My sympathy in this case is, shall we say, extremely limited. ... If you've decided you want to be a member of the United States Senate, and you can't do the right thing -- and in fact you decide to do what you know is ... the wrong thing -- ... you don't belong there in the first place. And instead of casting those votes, you should've just said, "No I'm leaving."

I happen to agree with Ornstein, but I do concede that talk is cheap. I have no way of knowing what the threats are that Cassidy and others have faced, and I cannot possibly know how I would respond if anyone I cared about were threatened in those ways. Even so, many people have defied Trump and lived to tell the tale. But as Ornstein's first explanation makes clear, if Cassidy had refused to cast a vote on Blanche, he still would have been kicked out of whatever his version of polite society might be.

When I asked last week what other explanations remain for cowardice and sycophancy after political viability is off the table, I ignored the social side of the story. But in any event, both ostracism and the threat of real violence are apparently palpable for those people, and that explains quite a lot about the United States in 2026.

- Neil H. Buchanan

Party Loyalty as a Legitimate Factor in Constitutional Law Cases or Legal Realism run Amuck?

2026-08-26T07:00:00.000-04:00

Author Disclaimer: The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of our school of thought.

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In a provocative new essay forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimate factor for Supreme Court justices to take into account when deciding constitutional law cases. The abstract concludes that "so long as parties remain institutional vehicles for vindicating core beliefs and principles held by the public, partisan teamsmanship by judges may be less dangerous to our constitutional system than contemporary critics of the Supreme Court presume."

Is this legal realism run amuck or an insightful perspective on how the Court has historically done its job and should continue to do so in the future?

The essay begins by recognizing what all of us should easily accept:

Under Chief Justice John Roberts’ stewardship, the Court’s Republican-appointed supermajority has consistently delivered high profile victories to Republican interests across a range of policy areas, including election law, administrative law, and major social issues like abortion, affirmative action, and the rights of transgender individuals. The Roberts Court’s ties to the Republican Party are further evident in the justices’ prior professional experience. Every member of the Court’s conservative majority has been active in the Federalist Society, the organization that has long anchored the conservative legal movement. And with the exception of Justice Amy Coney Barrett, the Republican appointees who voted to hold, in Dobbs, that the Fourteenth Amendment does not confer an individual right to an elective abortion previously held executive branch positions under Republican presidents. Three—Justice Barrett, along with Brett Kavanaugh and the Chief Justice—helped to litigate Bush v. Gore. And two—Justices Samuel Alito and Clarence Thomas—have maintained close personal relationships with prominent Republican donors and activists while on the bench.

Elinson then points out that most legal scholars along with the public at large, while recognizing that ideology and politics will affect legal decisions, also believe that party loyalty should not be the basis of or even relevant to the Court's constitutional law decisions. It is that assumption that Elinson challenges in this essay.

His argument centers mostly around two crucial historical periods in our constitutional history: Reconstruction and The New Deal. Relying on books by Mark Graber and Laura Kalman, Elinson argues that party loyalty motivated how the Supreme Court was staffed during those eras and how the Court acted at those critical moments.

It is common ground that the Republicans in the 1860's and 1870’s and the Democrats in the 1930's and 1940's, both in the Executive Branch and on the Court, were motivated strongly by party politics (just as the Roberts Court is today). Elinson argues that, "entrepreneurial political actors understood that determining what the Constitution meant and how it would function in subsequent generations was too important to be left to their party rivals to help decide. Accordingly, members of each era’s dominant party sought to make constitutional decisions with their partisan consequences well in view." Based on this history, Elinson makes the following claim:

The case for constitutional law qua law is that it is supposed to prevent one party (or faction or social group) from seizing the reins of government to revise the Constitution to its own benefit. But if our constitutional tradition involves the opposite, particularly during those times in our history where the political stakes were highest, it is important to revisit what we think we know about the relationship between partisan teamsmanship and constitutionalism.

I am a hard-core legal realist, and as readers of this blog know, firmly believe that ideology, values, and experiences drive the Court's constitutional law decisions, not the justices' usual nods to text, history, and precedent. But I have also always argued that party loyalty and partisanship are subsets of and not the same as ideology writ large.

In modern times, for example, Justices Blackmun, Souter, Kennedy, and White often voted in ways inconsistent with their party's preferences, and in Kennedy's case, that disconnect kept abortion rights and affirmative action alive much longer than the GOP would have liked. Throughout American history, as I am sure Elinson would concede, there have been numerous justices who have not placed party over ideology. On the other hand, Elinson persuasively demonstrates that party loyalty has been a driving force at the Court during important constitutional moments (as it is today).

Let us assume that Elinson's descriptive account is correct. Should party loyalty be recognized as an appropriate modality of constitutional interpretation, along with text, history, precedent, morality, and consequences? That is the interesting question raised by his essay.

The most persuasive argument for this counter-intuitive idea is that, if in fact at important times in our constitutional history party loyalty was a motivating factor for the justices' decisions, as it is today, then as a matter of transparency the justices should "come clean" and discuss partisanship in their decisions. For example, the Roberts Court's dismantling of the Voting Rights Act has been motivated in large part by the justices' desire to make it easier for the GOP to win elections. Does anyone think that if people of color voted overwhelmingly for the GOP those decisions would have come out the same way? The legally dubious cases from Shelby County to Callais are best understood as party loyalty decisions, so wouldn't it be refreshing to hear the GOP justices explain why they think it is so important for their party to amass as much power as possible rather than the borderline-frivolous "legal" arguments actually set forth in those opinions?

One response to that suggestion may be that it is not the Court's job to further the interests of political parties but to interpret the Constitution as honestly as possible. To the extent that certain Supreme Courts in particular eras were motivated by party loyalty, the public at- large and legal scholars should not affirm that practice but condemn it in the hope that the justices will listen and act better. Furthermore, even if party loyalty inevitably affects the justices' decisions, they should work hard to be self-aware enough to know that and try to avoid partisan temptations as much as humanly possible. That approach would certainly be the one most people would prefer.

But interpreting imprecise constitutional text and contested historical accounts is a messy business because those modalities underdetermine constitutional litigation. What the originalists call constitutional construction requires normative judgments that cannot be gleaned from traditional legal sources. Some examples will clarify this point.

There have been four Supreme Court decisions affirming gay rights in our country's history, and all four were written by Justice Anthony Kennedy, a life-long Republican appointed by Ronald Reagan. One might wonder: why? The most persuasive answer is that Kennedy had a close relationship with a prominent lawyer and Dean of a law school who was a closeted gay man. Kennedy saw firsthand the indignity and pain the closet caused his close friend. That perspective affected how Kennedy viewed the Constitution's open-ended due process and equal protection clauses.

Similarly, Justice Antonin Scalia loved guns and hunting, Justice Ruth Bader Ginsburg was strongly devoted to gender equality, and Justice Thurgood Marshall's most important value was fighting racial discrimination. Those justices voted consistently with their prior political and personal preferences. I have always believed that they should have explained their constitutional visions in the context of their experiences and values. True stories are more powerful and persuasive than dubious interpretations of text and history. If party loyalty plays a large role in the justices' reflections, either on or below the surface, then arguably the justices should justify their decisions with authentic reasons why that is so.

On the other hand, legal scholars and the justices themselves (especially when they are at their Senate confirmation hearings) say the goal should be to eliminate personal values from the justices' decisions as much as possible. While the justices will never be able to completely eliminate the impact of their values and backgrounds, on this account their task should be to do so as much as they can. It ought to be easier to consciously discount party politics than it is to distance oneself from one's own conception of, say, "equal protection" or what counts as an "unreasonable search." So even if ideology inevitably affects judicial decision making to some extent, party loyalty shouldn't and mostly wouldn't, on this standard view.

Elinson might respond, however, that Republicans in 1870 and Democrats in 1936 knew that the political goals they held most dear were only possible through partisan victories on and off the Court. Thus one cannot separate strengthening one's political party through Court decisions from specific constitutional visions such as those associated with the goals of the Reconstruction Amendments (a county with greater racial equality) and the attempt to handle the Great Depression by the successful implementation of the New Deal (more extensive government regulation of the private sector).

Elinson's thesis that party loyalty might be a legitimate factor in constitutional cases will likely be dismissed summarily by most lawyers, scholars, and judges. But he raises serious questions, especially for legal realists. In that regard, Professor Elinson has challenged widely held assumptions about how the Supreme Court has and should decide constitutional questions. I strongly recommend the essay.

Eric Segall

Could Mike Johnson Foil a Democratic House Victory? Yes, But Only With Help from the Supreme Court and/or Red States

2026-08-25T09:55:40.621-04:00

Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday the Court issued a per curiam opinion in Trump v. California allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received.

Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais (further) gutted the Voting Rights Act. Callais green-lit disenfranchisement of Black voters and thus made it easier for red states in the South to engage in political gerrymandering.

In Callais, the Court ignored the fact that few Black voters are Republicans or treated that fact as just some odd coincidence, while in Trump v. California it pretended that the current administration wants the Post Office to interfere with mail-in voting because of some genuine concern about enforcing laws regarding voting fraud. The tipoff comes in the per curiam's opening line: "The President recently issued an Executive Order regarding election integrity." Really? The executive order recites "integrity" in its title but that doesn't mean that it has regard for integrity--except in the sense that it aims to undermine election integrity.

What happens if, despite these and other efforts, Democrats manage to win a majority of seats in the House? We saw in 2020 that losing a presidential election did not stop 8 Senators and 139 House members, including now-Speaker Mike Johnson, from voting not to certify electors from a number of states that Joe Biden won. And that was right after Trump's mob had stormed the Capitol building. Could we see a reprise in which Speaker Johnson and other Republicans cite bogus claims of election fraud or other alleged irregularities to prevent enough Democrats from taking their seats so that Republicans maintain control of the chamber?

That scenario worries a number of commentators, as indicated in this substack post by retired federal Judge J. Michael Luttig. That post and some of the pieces Judge Luttig cited inspired a response by Robert Hubbell objecting that under the Constitution, the old House has no official role in the seating of the new House. Judge Lutting then responded that Hubbell had misunderstood him and David French about who does the counting and certifying.

For what it's worth, I think that references to "lame duck" by French and Judge Luttig's own discussion of the role of current House members indicate that Hubbell did not misread them or at least that French and Judge Luttig had been unclear initially. However, I don't want to referee this friendly disagreement among commentators who all share with each other (and with me) a concern for protecting American democracy. Instead, I'll simply pose the question directly: If Republicans wish to block Democrats from taking the House despite the latters' victory, can they do so?

The answer depends on what one means by "can"? Can they do so legally? As I'll explain, no. Can they do so illegally and get away with it? As I'll also explain, maybe.

Hubbell makes much of the fact that, unlike the Senate, the House is not a continuing body. It must be reconstituted every two years. There are four key steps: (1) States certify winners of their respective House districts in accordance with state law; (2) pursuant to 2 U.S.C. § 26, the clerk of the House of Representatives creates a roll of those persons certified by their states; (3) members of that roll elect a Speaker and otherwise organize the House; (4) the now-organized House adjudicates any contested seats.

That sequence is crucial. If Democrats are certified as winners of a majority of House seats by their respective states, then the clerk, who is a non-partisan official, has no discretion to keep them off the rolls. And if that happens, Mike Johnson won't be the Speaker, and the Republicans would not be able to determine that one or more Democrats were not properly elected at step (4) because they would be in the minority.

Ah, but what happens if the clerk, perhaps a new Republican loyalist clerk appointed in December, goes rogue? Suppose at step (1), the rogue clerk says that the certificates of some number of Democrats are defective and excludes them from the rolls? Professor Ned Foley addressed this scenario in an excellent essay late last month. I agree with Professor Foley that in such circumstances mandamus should be available for an unlawfully excluded state-certified House winner. Professor Foley worries that such a scenario could nonetheless spark a constitutional crisis and political violence reminiscent of (and perhaps even worse than) January 6, 2021. I agree with that worry as well, and I have a further one.

The further worry is that even though mandamus should be available, it might not be. There are multiple ways in which a lower court--or a lower court ordered by SCOTUS--could aid an unlawful scheme by a rogue clerk. Here are two. First, the court could say that, notwithstanding the non-discretionary duty, the case presents a nonjusticiable political question because . . . reasons. Second, the court could slow-walk the case and not issue injunctive relief (or SCOTUS could stay injunctive relief issued by a lower court) so that the bogus roll excluding some Democrats is still in effect when the Speaker is chosen and the House is organized; then, the Republican-majority House could officially exclude the Democrats. And I wouldn't underestimate the ingenuity of the Republicans' lawyers in crafting additional absurd arguments that the Supreme Court then accepts.

Thus, in addition to Professor's Foley's worries about political violence sparked by the rogue clerk scenario, I worry that the courts could turn a plainly unlawful power grab into one that isn't stopped by the courts.

Meanwhile, there is another worrying possibility. One or more red states might refuse to certify Democratic winners in their states long enough that even an honest clerk cannot include them in the roll. Even with political gerrymandering, red states usually send some Democrats to Congress. Their Republican officials responsible for certifying election results might cite bogus claims of fraud or other irregularities to delay certification or even to certify the losing Republican candidate as the winner. There too, mandamus ought to be available to address such chicanery, but as with the rogue clerk scenario, there is a worry that it might not be.

In the end, then, I'm with Judge Luttig in worrying about Democrats actually being able to take control of the House, even if I see the scenario slightly differently. Imagine that on January 6, 2021 Vice President Mike Pence had succumbed to the pressure and had discounted the certificates of enough states that had voted for Biden to throw the election to Trump. In the view of many constitutional scholars (including me), that would have been unlawful, as the VP's role under Article II and the 12th Amendment is ministerial. Thus, in principle, mandamus would then be available against Pence. But can anyone say with confidence that in such circumstances the Supreme Court would have allowed a federal district judge to order Pence to accept the unlawfully rejected certificates? If not, how can we be confident that SCOTUS would allow such an order in the 2027 House scenario?

-- Michael C. Dorf

Trump and Robert Moses (Guest Post by Professor Martin Siegel)

2026-08-24T07:35:40.718-04:00

Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a federal civil rights suit, and Roy Cohn, who schooled Trump in the art of never admitting defeat while personally savaging and countersuing opponents.

But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.

In his legendary biography of New York’s master builder, The Power Broker, Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders. No matter the losses in court, Moses still won. As trial dates loomed, he took frivolous appeals and instructed state lawyers to delay until his antagonists’ money ran out or his political allies rescued him or both.

Later, when Moses wanted to blast a parkway up the Hudson River and decided to bulldoze through the mostly untouched wilderness of Inwood Park despite an alternate route that would have saved the forest, opponents thought they’d halted or at least stalled the destruction by obtaining hearing dates in the city’s powerful Board of Estimate. But then Moses simply cut the trees down while the hearing he’d agreed to was pending.

As Caro writes, “once you did something physically, it was very hard for even a judge to undo it.” That pattern repeated itself for decades as Moses wielded near absolute power to remake New York City.

None of this was lost on Donald Trump, though Moses’s stature was shrinking by the time Trump graduated college and joined his father’s world of New York real estate. In a 1985 piece on the new generation of rising power brokers, the Times said, “if Mr. Moses were to be born again, he’d probably return as Mr. Trump.”

“Trump did want to be identified with him,” Caro commented for a 2018 article:

For a time, I used to hear… ‘Donald Trump is the next Robert Moses.’… But I always felt he himself was behind people saying that, if you know what I mean – that he wanted to be the next Robert Moses. And that’s really a terribly revealing thing. Moses, he didn’t let people stand in his way. He targeted – he not only evicted all these people… he hounded them out like cattle…. To admire him is to say a lot about yourself.

When it comes to the ballroom, Trump, like Moses, keeps losing. Lower courts have found the construction to be illegal but for some reason keep granting stays pending appeal, allowing Trump to keep building despite injunctions putatively ordering him to stop. On Friday, Chief Justice Roberts did so again, staying the original district court injunction while the Court considers the case.

Trump has predictably taken full advantage of this weird and ineffectual naivete: crews of 250 people are working on the project 20 hours a day, seven days a week – a breakneck speed explicable only by a plan to create facts on the ground no court will feel comfortable dismantling.

Never mind that what began as a ballroom has transmuted into a bunker complex supposedly essential to presidential security, though somehow the other 44 men to fill the office managed to live without it. Of course, since the magic words “national security” have now been uttered, the administration claims that no one – least of all judges – can second-guess their decision.

And anyway, judicial consideration is pointless because freshly built realities have mooted all possible objections. “‘Quite frankly, if the building were tragically ordered to be taken down, or even altered, by the court,’” the Solicitor General’s brief warns, quoting an unspecified administration official, “‘there would be no way to do so.’” That’s in part due to the building material, described in the brief as “the hardest and strongest concrete there is, the type used in nuclear power plants… impermeable, and virtually impossible to deconstruct.”

And so as with almost all exercises of executive authority that incant “national security,” the Court will almost surely let Trump have his way, bringing this golden sealed aesthetic nightmare to fruition (not to worry, though, since the SG’s brief also quotes another unnamed official who assures us, “this building is already being adjudged to be one of the most beautiful of its kind, anywhere in the country”).

The ballroom is only the most physical embodiment of the administration’s largely successful strategy to outrun, ignore, transparently evade, and cleverly moot adverse judicial decisions. As the Associated Press reported in May, “district court judges have ruled the Republican administration was violating an order in at least 31 lawsuits over a wide range of issues, including cuts in federal funding, mass layoffs, deportations, and immigration practices.” Immigrants with pending cases or orders precluding removal are shipped abroad, whole federal departments are essentially shuttered through firings and reassignments of employees and duties, grants are terminated, congressionally mandated spending is withheld or reallocated. The judges in these cases have often accused administration officials or lawyers, not just of disobeying their orders, but also of misleading them.

Then there are the cases like the litigation over Trump’s tariffs where the administration acts under dubious legal authority, is sued, ultimately loses months or years later (though often implementing the policy in the meantime), and reinstates the policy or something very similar citing new but equally dubious grounds, starting the cycle all over again. At the current rate, if the latest tariffs are also voided, the administration will complete nearly its full four-year term presiding over an illegal trading system, leaving its successor to repay injured businesses.

In all, the administration’s great and novel genius has been to recognize that it can skip the kind of grandiose, Jacksonian declaration of defiance then-Senator Vance advocated on a podcast in 2021 (“and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it’” (in fact, Jackson seems never to have said this)). Much easier to bob and weave and dissemble and delay.

Why does this work? Easy. Employees fired en masse have to get on with their lives and find new jobs. Cancelled grants lead researchers to terminate projects, close down labs, and leave the country. Wrongfully arrested immigrants give up and accept deportation to any better-than-Eswatini destination. People can’t always wait for legal vindication and the clock can’t be unwound, whatever the ultimate judicial decision. More than that, courts can hardly keep up with the administration’s firehose of lawbreaking, and there are no more nationwide injunctions anyway. In the meantime, the administration has accomplished its (often illegal) objectives.

As Adam Liptak highlighted last week, the new name for this strategy, coined by Daniel T. Deacon and Leah H. Litman, is “legalistic noncompliance.” But the strategy isn’t new at all – Robert Moses knew it well.

-- Martin Siegel

Debt Fear-Mongering Has Moved from Mockable to Dangerous

2026-08-21T16:07:29.905-04:00

The lead news story for most of the day at The New York Times on Wednesday was: "U.S. Debt Hits $40 Trillion as America’s Borrowing Binge Continues." Again, that was a news story, not an editorial. The US is on a borrowing binge, you see, and if we are to believe that The Times upholds its professed standards of journalistic objectivity, that is a factual and neutral statement.

I will not bury the lead/lede here. There is no reason to panic about the US debt situation. I will return to that conclusion in some detail below, but the key point up front is that there is nothing new in what The Times reported on Wednesday, other than the number $40 trillion itself, which Paul Krugman correctly described as "a number that is big and round, but otherwise has no special significance."

The last time The Times went back to the debt fear-mongering well (on May 9 of this year), I offered a prediction: "The next trillion in gross debt that the US will reach, by the way, is $39 trillion, and it will happen fairly soon. Look for another 'for the first time' Times headline."

I was referring there to two nearly identical headlines that The Times ran several months apart a few years ago: "U.S. National Debt Tops $31 Trillion for First Time," on October 24, 2022, and "U.S. National Debt Tops $33 Trillion for First Time," on September 18, 2023. Exactly one day after that latter piece ran, my Dorf on Law column was titled: ""Breaking News on the Federal Debt: 33 is a Bigger Number than Any Smaller Number!!" As I explained there, when we are describing a number that will always be rising (under good and bad circumstances alike), reaching a new high is an inevitability, not an event. "I'm forty years old for the first time!!" Stop the presses.

I should offer two semi-mea culpas here. First, I either underestimated or overestimated the debt panic-stokers at The Times by predicting that they would run another piece when gross federal debt reached $39 trillion. Unless I missed it, they kept their powder dry and waited to hype the bigger, rounder 4-0. My prediction was thus incorrect -- incorrect in a trivial sense, but still incorrect.

Second, The Times is not alone. The Guardian is not one of the news outlets that I would have expected to jump on an anti-government, contrived non-story. Even so, they dutifully put this article on top of their web page: "US gross national debt tops $40tn for first time." For the first time! Bingo!! Beyond the odd sense of validation that I felt upon reading that, however, it did make me think, "I kinda owe those annoying reporters and editors at The Times an apology. Turns out they're not the only simpletons."

After reflecting on it a bit further, however, I think that The Guardian's mindless myna-birding of the anti-debt mantra is in fact a further indictment of The Times. After all, most news sources at this point employ no staffers who have enough knowledge of economics to pretend to write something even as vacuous and ponderously self-serious as we see regularly in The Times. As in so much of modern news coverage, the agenda is set by The Times, and everyone else becomes mere stenographers.

Why am I so confident in saying this about The Guardian? One hint is that they compounded their error by adding a tag at the top of their headline with the words "Debt Ceiling." That is a major tell, because the debt ceiling has absolute nothing to do with this story. The Times story itself never mentioned the debt ceiling (or the equivalent term debt limit), which -- as anyone who has read pieces on this blog by Professor Dorf or me (or sometimes by the two of us writing together) even occasionally over the last fifteen years knows -- is a statute that is an entirely separate matter from measures of the federal debt or its economic consequences.

But if one knows nothing at all about fiscal policy and relies instead on "stuff I kinda remember seeing in the headlines," one stumbles blindly into completely avoidable errors like that one. Also amusingly, clicking on "Debt Ceiling" next to that headline takes us to a page with links to three Guardian articles. In addition to the "for the first time" article itself, one is about Michael Cohen's efforts to crawl back to Trump and ask for a pardon, and the other is about Japanese debt. Those editors are surely good at their jobs and know about a lot of things, but fiscal policy is clearly not one of them. Yet they happily veer out of their lane because The Times gives them permission to do so.

Even though there is nothing to see here, the rubbernecking by The Times and others becomes a problem in itself. I have written many times over the years about why US federal debt is not the big, scary thing that fiscal scolds try to make it out to be, but it is worth offering at least a brief review here. The usual move by the fear-mongers is to go heavy on frightening but empty descriptors like "grim" or "worrisome" (or "binge"), but they generally cannot deliver a decent story about why the debt is a problem that goes beyond saying something like this: "We're doomed by all this, but we've been lucky so far and have by God's grace been given one last opportunity to mend out irresponsible ways. Repent!"

Am I exaggerating? Hardly. I have written a few mixed-to-positive things about David French, a relatively recent addition to the editorial page at The Times, who fills a conservative slot at that paper but is not what I pointedly described as a "conservative diversity hire." Even so, French yesterday revealed himself to be deeply shallow when it comes to his understanding of economics. (One example: "Unless I harm someone else, it’s not the government’s job to determine whether I’m virtuous enough to enjoy liberty, including economic liberty." Wow, now there is a clear guide for setting the rules of the economic game. "Economic liberty" means nothing without rules, so the idea that there is a no-government zone of freedom is as naive as it is useless.)

And when it comes to federal debt, French is exactly the kind of blank slate that debt fear-mongers love. Again, French has no apparent reason to know anything about economics, but like nearly everyone in his world, he knows that being a Very Serious Person means being sagely worried about government borrowing. Two months ago, for example, he wrote this:

I’m reminded of a vivid analogy from a different context. In 2021 Noah Smith, a popular and thoughtful economist, wrote about the problem of debt and deficits. We know that at some point the debt gets too high, but we don’t know when that point is. He said, we were walking down "an infinite corridor with an invisible pit." We know the pit is there, we just don’t know where it is. If we keep walking, we fall in.

It is true that Smith is an economist, and he is hardly alone in offering that kind of apocalyptic warning about borrowing. Less dramatically, I have written at various times that there must be a tipping point ... somewhere ... beyond which debt would become a real problem. There are two reasons, however, not to go where French-channeling-Smith goes. (1) I cannot think of any other matter of policy on which the default idea is: "We don't know where the line is, so we'll assume it's an inch in front of us," for the very good reason that we should always ask what we lose by recoiling in abject terror. But more importantly, (2) The pit is not invisible.

On that later point, what The Times always does in its anti-debt pieces is to spook people with the idea that there will be a financial panic (sometime soon or soon-ish) caused by excessive debt. Their articles then turn to the usual suspects, who predictably say, "We've been warning you, but now it's $40 trillion!! The markets will punish us any day now." Some of the more behind-covering types might add something a bit more like Smith, qualifying their statements with "Well, we're not sure that it'll be any day now, but it might be!"

But if the big fear is that the bond vigilantes are ready to make us pay for our sins, we would in fact be able to see evidence that something is afoot. On their own, rising interest rates are not proof of a coming Armageddon, because those rates can and do rise and fall as a matter of course without getting out of hand. There has to be some evidence that the bond markets are doing something abnormal in response to federal borrowing, and although columns like those in The Times can cause blips in confidence, even the most economically conservative finance bro is not going to ignore market realities.

Anticipating the $40-trillion screaming headlines that were on tap, Paul Krugman's column two days ago was titled: "What Are Bond Markets Telling Us?" with the sub-headline: "Rates are up, but don't panic."

He wrote: "Yes, high interest rates are troubling and the next administration shouldn’t emulate the blithe unconcern of the current White House. But there’s no evidence of a looming debt crisis." Why not? Krugman gets into the technical weeds a bit, but here is his reasoning: "[I]f markets were really worried about U.S. solvency and the potential for the government to inflate the debt away, this should be reflected in measures that track inflation. But there has been, in fact, very little change in the 'breakeven' inflation rate, a measure of long-term inflation expectations." He added: "Another indicator is the price of credit default swaps — insurance against a possible US default. These also haven’t moved much."

Interested readers can also look at Krugman's piece from yesterday, in which he adds pointedly:

[A]nyone who asserts that markets are missing an impending debt crisis should be asked to explain how, exactly, such a crisis might play out. Don’t wave your hands at the debt crises that struck Greece and other southern European nations around 2010, because our situation is very different: Unlike Greece, which is a member of the euro area, the U.S. economy runs on dollars and U.S. government debt is denominated in dollars.
That matters because it’s very hard to construct a scenario for a Greek-style debt crisis in a nation that borrows in its own currency. As far as I can tell — and I’ve studied the issue at length — there are no historical examples in which this happened. The detailed, wonkish logic of why we are not and have never been Greece is explained in a paper I presented at the IMF’s annual research conference some years ago.

"No historical examples." Although understated, Krugman's fundamental point there is crucial. We should not allow people to talk about "an invisible pit" if they cannot describe (to carry the metaphor forward a bit) how deep the pit might be, how slippery the pit's sides are supposed to be (which is relevant both to falling in and climbing out), whether there are monsters or pillows at the bottom, and other key matters. In his writing over the years, Kurgman has mocked people who shout: "We'll be just like Greece, Greece I tell you!" And for good reason.

On a final point, one might reasonably ask why the headline of this column is: "Debt Fear-Mongering Has Moved from Mockable to Dangerous." After all, I have engaged in a fair amount of mockery here, and I am obviously having fun with it. Even so, it is important to emphasize the political consequences of this insanity.

The sub-headline on The Times's piece reads: "President Trump’s promises to restore fiscal order and reduce the amount of America’s debt burden have been undercut by spending on the Iran war, tax cuts and tariff refunds." So the implication here is that people who do not like Donald Trump or his presidency should agree with the debt scare-mongers. His policies, after all, are adding to the debt, and the debt is falling-into-an-invisible-pit bad, right?

But this simply highlights the central point that I make whenever I write about the debt (which is often). This has gone from mockable to dangerous because it is even more obvious than it ever has been before that this will harm policy in the future. Here, I will quote from my anti-scare-monger Dorf on Law column in May:

To be very clear, I am not saying that debt is always good. As always, I am saying that it is not per se bad. One might imagine that I would have written that down somewhere. Oh right: Out of literally dozens of places where I have made that argument, two good recent examples are here and here.
In those articles and in so, so many others, I make the point that the way to push back against orthodox debt fear-mongering is not to feed it when it is politically convenient to do so. [T]he reason, as always, to oppose Trump/Republican policies is because they are bad on their own merits. They waste economic resources and get nothing for it. [I]t still would be terrible policy -- as a matter of economics, on top of everything else -- to increase Pentagon spending by 50 percent (to build "Trump battleships," for chrissakes), to give huge tax cuts to billionaires, or to waste money in every other way that Trump wastes money.
Those who want to criticize Trump and the Republicans have more than enough material to work with. There is no reason for anyone, and certainly not The New York Times, to make a big deal about an utterly meaningless statistical artifact.

To close on a possibly entertaining (but mordant) note, shortly after I saw Wednesday's Times headline, Professor Dorf forwarded the link to me, just in case I had missed it. I replied: "Eccchhhh. I was almost hoping that you hadn't seen that, but then I realized that I would've felt a grim duty to write about it anyway. The power of Christ compels me, or something like that," adding moments later, "[T]his is the path in life that I’ve set for myself."

The point is that there is nothing enjoyable about seeing the corporate media team up on a regular basis with anti-government conservatives to undermine American economic policy. But they will not stop, so giving up is not an option.

- Neil H. Buchanan

The E.J. Carroll Case as Anchoring Device

2026-08-20T07:00:00.000-04:00

In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here. Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes.

But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable.

In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in real life it's not so obvious. Thus, psychologists and self-styled negotiation experts point to the importance of anchoring and related cognitive biases. A big initial ask makes acquiescence to a smaller but still large ask seem more palatable.

In the last Supreme Court Term, Trump's assertion of essentially unlimited tariff authority under the IEEPA and the ability to revisit a landmark 19th century decision construing the 14th Amendment's Citizenship Clause are the equivalent of asking for the whole cookie. Before Trump came along, neither was a remotely plausible view of the law. And yet, in the Learning Resources case, he got three votes (Thomas, Alito, and Kavanaugh) for his brash assertion of tariff authority. In Trump v. Barbara, he got three votes for the legality of his position (Thomas, Alito, and Gorsuch) and another vote (Kavanaugh) for its constitutionality if he could get Congress to go along. He got uncomfortably close to a whole cookie.

The latest effort by Trump to shoot the moon was his petition for rehearing after the Supreme Court denied certiorari in the E. Jean Carroll civil case. As a reminder, that's the litigation in which a jury found that Trump defamed Carroll when he denied having sexually assaulted her. Trump's original cert petition purported to raise general legal questions regarding the federal rules of evidence. To wit:

(1) Whether Federal Rule of Evidence 415 overrides Rule 403’s requirement to balance the probative value of temporally remote propensity evidence against its prejudicial effect before such evidence can be admitted?; (2) Whether Federal Rule of Evidence 413(d) authorizes the admission of temporally remote propensity evidence that the defendant committed the “crime” of “sexual assault” when the alleged prior act did not constitute a crime or a sexual assault?; and (3) Whether Federal Rule of Evidence 404(b)(2) permits the admission of “modus operandi” or “corroboration” evidence of prior “bad acts” without establishing a non-propensity purpose of the evidence, such as identity, absence of mistake, or another enumerated exception in Rule 404(b)(2)?

Did you follow that? That's okay. You weren't supposed to. The real point of the cert petition was to assert: Witch hunt. Fake news. I appointed three of you. You owe me!

We know that there were no listed dissents from the denial of certiorari in the Carroll case. We don't know that there were no dissents. There could have been as many as three. Indeed, there is reason to think that at least one Justice was seriously considering casting a vote to grant cert and may have been working on colleagues because of how many times the Court delayed deciding whether to grant cert. The original cert petition was filed last November. The plaintiff's opposition to cert was filed in mid-January of this year. Trump filed his reply at the end of January. The case was then re-listed fifteen times before the Court finally denied cert at the end of June (just in time to get out of town).

Trump filed his petition for rehearing on July 6. His main argument for rehearing was that he was imminently filing a cert petition in a related case and the Court should consider them both together. But this was a ridiculous argument because Trump's lawyers had already alerted the Court to the related impending cert petition in early June, nearly two months before the Court denied cert. Petitions for rehearing are almost never granted and certainly not when they point to nothing new.

Thus, the news that the Court rejected Trump's rehearing petition on Monday of this week should not have been news at all. To the credit of the journalists who wrote stories about that rejection, most of the ones I came across noted that Trump's rehearing petition was always a long shot. In other words, they did not frame the story as the Justices going out of their way to reject a position taken by Trump.

Nonetheless, the Court’s rejection of Trump’s frivolous rehearing petition will fool a lot of people. By rejecting a Trump case--even one as clear-cut as the Carroll rehearing petition--the Court's conservatives give themselves breathing room with the low-information public to rule in Trump's favor in other cases that he also ought to but won't lose. Those could include his thus-far successful efforts to evade lower court rulings that his ~~East Wing Destruction~~ ballroom construction project is illegal. With each absolutely bonkers request from Trump that the Court denies, it becomes easier for it to rule in his favor based on his other not-quite-as-bonkers-but-still-very-bonkers positions.

It's almost as if the father in our allegory knows that a 3/4--1/4 split is grossly unfair but wants to favor his favorite child.

Cowardly Senators and the Specter of Political Violence

2026-08-19T12:02:22.967-04:00

One of the smaller dramas of recent weeks was the US Senate's confirmation of Todd Blanche as Attorney General of the United States (AG). I must emphasize that virtually no Trump-era stories are small by historical standards, meaning that "smaller"in the previous sentence should be understood in an even more relative sense than usual. It was a drama that provides some important lessons, however, especially in explaining the continued refusal of Republicans in political office to stand against the Trump regime.

It is unlikely that anyone reading this column needs to be reminded that Blanche was a truly terrible choice to be anywhere near the Department of Justice (DOJ). Even so, a few lowlights will set the appropriate context. The man who failed while defending Trump against felony charges in New York was rewarded with the runner-up job at DOJ, during which time he took the lead in derailing the Epstein investigation. His efforts there included meeting in prison with Epstein's partner in child sex trafficking, then having her moved to a cushy federal detention facility -- but only after she claimed that Trump had done nothing wrong. Even after doing all of that for his patron, Blanche later said that if Trump had not tapped him to replace Pam Bondi as AG, he would have said, "I love you, sir."

During his confirmation hearings, Blanche was put under pressure to meet with some of the survivors of Epstein's heinous crimes. It seems useful here to quote at length from a piece by Rachel Foster at The Contrarian:

For nine months, these women had repeatedly requested a meeting with Blanche and were ignored. Only after Sen. Thom Tillis (R-NC) made clear that Blanche’s confirmation depended on meeting with the survivors did Blanche scramble to arrange a hasty last-minute meeting. The survivors changed their travel plans and raced back to Capitol Hill after two exhausting days of advocacy meetings and Senate hearings. Their attorneys received so little notice that they barely had time to join by Zoom, much less prepare for what should have been a thoughtful and productive conversation.
Instead, the meeting became another chapter in a three-decade pattern of institutional failure.
Rather than listening, Blanche interrupted survivors, argued over tone and semantics, minimized decades of Justice Department failures and betrayal, and condescendingly dismissed the legitimate anger of women who have spent 30 years trying to be heard by the government institutions charged with protecting them. He offered no credible plan to investigate or prosecute anyone beyond Jeffrey Epstein and Ghislaine Maxwell. He instead, to the shock of everyone in the room, suggested they start over by filing reports with the FBI – reports that survivors had been filing since 1996. In doing so, he effectively admitted he had not even reviewed the Epstein files before meeting with the very women whose abuse those files document.

I think it is fair to describe that as not good. Moreover, Blanche is terrible on every other issue, including saying that he is on board with Trump's efforts to federalize elections: "Election integrity is something that President Trump ran on, and the American people elected him. [T]he Department of Justice is trying to investigate issues around elections to make sure they’re fair and make sure they’re conducted the right way." Beyond the old "Trump said X during the campaign, and he won, so there are no limits on what we can do" move, what Blanche is defending is an executive order to have states send "voter rolls, including voters’ names, dates of birth, residential addresses, state driver’s licenses and the last four digits of their Social Security numbers" to the federal government.

Trump said at a recent rally that he thinks Blanche has "a shot at being the greatest ever, if he remains tough and strong." Obviously, Blanche knows how to crack the incredibly complicated code behind those words. This past weekend, he made news by refusing to pledge to act independently of the White House, asserting absurdly that "no attorney general should ever pledge that." Why not? "[T]his narrative that’s mostly pushed by the left and pushed by the media that the president’s going to pull me aside and ask me to do something illegal is completely a false narrative, not true, will not happen and hasn’t happened."

"Tough and strong" indeed. And Blanche's promises that he has killed his own effort to create a "weaponization" slush fund to pay money to January 6 insurrectionists are hardly believable.

Given all of that, why did I begin this column by calling Blanche's confirmation one of the smaller dramas of the last few weeks? Is it because he falls into the category of people who are in the tank for Trump but who would have been replaced by someone just as bad?

In that vein, I have argued here on Dorf on Law that it is important to be careful not to place too much emphasis on the particular clown in the clownshow who happens to be onstage at any given moment. In a column less than two months into Trump's current term, for example, I argued that only Elon Musk and Robert F. Kennedy Jr. presented unique threats that any replacements would be hard-pressed to replicate.

With Musk stepping out of his White House role soon thereafter, RKF Jr remained as the lone unique baddie, but three months ago I followed up with a column adding Pete Hegseth to the hall of shame: "[W]e now know that Hegseth seems to have been the person who made the difference in pushing Trump into the invasion of Iran. ... 'Within the cabinet, Mr. Hegseth was the biggest proponent of a military campaign against Iran,' according to reporting in The Times."

Notably, however, I stipulated in that column that "I consider Blanche to have genuine potential (in the worst sense) here, but what he has done thus far seems to differ only in style from [Bondi]. Blanche does seem to have the desire to be a supervillain, but he is not there yet." I concluded: "So it is time for RFKJr to move over, because there is a new menace to society at the door. And while they are getting Hegseth settled, they should leave space for Blanche or some other current unknown to break into The Show."

In the three months since I wrote that column, it has become clear that Blanche is living down to the lowest of low expectations, such that he surely is now in the big leagues of uniquely harmful Trumpists. And given that he is in charge of one of the most powerful arms of government, how is that in any way a small thing, even in the current hellscape in which we live?

The answer is that this is not equivalent to replacing, say, Kristi Noem with Markwayne Mullin to run the racist immigration crackdown at DHS, or of replacing someone like Kash Patel as FBI Director if he were ever to be fired. (Does anyone think Trump would have a difficult time finding anyone who could do as much damage as Patel has done, if not more?) No, the simple answer is that Blanche was going to be replaced with Blanche.

Huh? During the very brief period a few weeks ago when some Republican senators were making grunting noises about not confirming Blanche, Trump said that he would respond by keeping Blanche in the AG's office by withdrawing his nomination and keeping him in his then-current status as Acting AG. That is, Blanche had already been wreaking havoc at DOJ for months, and blocking his nomination was not going to make that stop. Even if Blanche's badness would be as difficult to replicate as I am suggesting here that it might be, I can say with confidence that Todd Blanche is certainly every bit as bad as Todd Blanche.

None of which is to say that he should have been confirmed, of course. Senators who had the opportunity to say whether, in their considered judgment, Blanche should be confirmed as the not-merely-Acting Attorney General of the United States should have rejected him. "That burglar might be able to find a way to take your things no matter what you do" is no reason to say, "Well in that case, I'll just let him into my house and let him take anything he wants."

Even so, fifty Senate Republicans voted to confirm Blanche. Mitch McConnell would have been a yea as well (assuming he was and/or is alive), and even if it had been a tie, the VP's vote would have put Blanche in office.

In the block quote above, Senator Thom Tillis of North Carolina is identified as the man who insisted "that Blanche’s confirmation depended on meeting with the survivors." Blanche grudgingly did the bare minimum by sitting in a room with the women who were trafficked by Epstein when they were girls, then made matters worse by insulting and belittling them. How did Tillis vote? Yea, of course.

What about the other senators who indicated that they might not go along? John Cornyn of Texas and Bill Cassidy of Louisiana both fell in line in the end. Again, I will quote at length from a source, in this case a Politico report on the voting:

Cassidy’s decision was swayed by Blanche reaching a deal with Texas Sen. John Cornyn to nullify the payout fund for Trump allies — including Jan. 6 rioters pardoned by Trump — on Aug. 2. The fact that Cornyn, a former Texas attorney general, was “comfortable” with the deal was important to Cassidy, he said.
“What I’m told as regards to the Anti-Weaponization Fund, if you put it in the context of the political environment, the judicial environment, the process you would have to go back through in order to reinstate it, that effectively it’s dead,” Cassidy said to Margaret Brennan on CBS’s “Face the Nation.”
There were “a lot of positive things to say about Todd Blanche” and “stable leadership” was necessary for the DOJ to do its job, Cassidy said.
Cassidy said, however, that he almost voted against Blanche for continuing to grant protection to Trump and his family from IRS probes.
“That is wrong — and no American should be targeted by the law, but no American should be above the law. And that, frankly, almost weighed to vote ‘No.’”

Such profiles in courage! Given that Cornyn has been lauded as an "institutionalist," which apparently is supposed to mean that he cares about the US Senate as an essential and independently powerful part of our constitutional system, one might think that he would have balked at falling in line with whatever Trump wants. Indeed, when Cornyn lost his primary earlier this year to a Trump-backed walking scandal, Cornyn reportedly claimed that this had freed him to be his own man:

Now the Trump administration might find itself having to come to terms with Mr. Cornyn as he flexes new political freedom, joining a handful of other Senate Republicans not seeking re-election or defeated in primaries at Mr. Trump’s behest who now have added room to maneuver.
“I think it is going to be a pretty bumpy ride for the next seven months,” Mr. Cornyn said during a wide-ranging conversation in his Capitol office as he reflected on the tumultuous Texas election and his nearly quarter-century in Washington.
“It does give some of us a little more freedom, and certainly leverage,” he said, before invoking Mr. Trump’s notoriously heated Oval Office meeting with President Volodymyr Zelensky of Ukraine last year. “As the president told President Zelensky when he was in his office a year or so ago — he said, ‘You don’t have any cards.’ Well, we’ve got some cards to play.”

One hopes that Cornyn's post-retirement plans do not include taking up poker, because he will soon be living on nothing but the Social Security benefits that he spent his career trying to cut. And who else is included in the "some of us" that Cornyn mentioned? None other than Tillis and Cassidy, who are also leaving the Senate.

Notably, one of the two Republicans who voted against Blanche's confirmation was Lisa Murkowski of Alaska, who said last year that "we are all afraid," referring to other Senate Republicans when it comes to crossing Trump, adding: "I’m oftentimes very anxious myself about using my voice, because retaliation is real." The news coverage at the time tended to assume that she meant political retaliation, but it seemed obvious that the fear she vaguely described had something to do with more than political lifespans.

And now we have three men who are leaving the Senate because of Trump, men who no longer fear for their political survival, yet these dead men walking could not even stand up and make the easiest call in the world. What makes them still so afraid? What other explanations remain?

- Neil H. Buchanan

Courting Voter Confusion in Alaska?

2026-08-18T12:36:13.112-04:00

In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola.

Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to turn the Republican Party away from MAGAism and back towards its traditional norms and positions. However, the same story also indicates that Teacher Dan's views, as expressed through activism and donations, are pretty mainstream liberal Democratic. And given that there's no realistic possibility of anyone other than Peltola or Incumbent Dan winning the general, there is an obvious sense in which Teacher Dan and everyone other than Peltola and Incumbent Dan are running as spoilers.

Does it matter whether Teacher Dan's goal is to siphon votes from Incumbent Dan? From the perspective of voters, probably not. From their point of view, the question is simply whether they will be confused by two candidates named Dan Sullivan. However, so far as the law is concerned, motive might matter quite a bit.

Today's Alaska primary is not the first election in which multiple versions of the same name for two (or more) different candidates have appeared on the ballot. In some (indeed, probably in most or even all) such instances, it has been a result of dirty tricks by opponents. In recent memory, the most notorious example is the 2020 "Ghost Candidate" scandal in Florida. That instance of candidate name legerdemain resulted in a criminal conviction, as described in a 2024 news story:

Former Florida state Sen. Frank Artiles was sentenced . . . to 60 days in county jail for his central role in the 2020 "ghost candidate" election scandal. [He] was found guilty in September on three counts related to orchestrating the candidacy of Alex Rodriguez, who ran as a no-party candidate in Florida's District 37 Senate race. At trial, Prosecutors argued that Rodriguez, whose campaign was funded and managed by Artiles, was used to siphon votes from Democratic incumbent José Javier Rodriguez, ultimately helping Republican challenger Ileana Garcia secure a 32-vote victory in the tight race.

Some of the criminality in the Ghost Candidate case occurred during the investigation, but Artiles was also convicted of conspiracy. I haven't looked into Alaska law sufficiently to know whether Teacher Dan or one or more people backing his candidacy could be vulnerable to prosecution for some crime. So far as I know, no one backing Peltola put Teacher Dan up to what he's doing. Thus, even if Teacher Dan is trying to be a spoiler/siphoner, it's hard to argue that criminal liability ought to attach.

Whatever judgment one makes about the requisite intent of various actors for criminal liability, election officials would certainly be justified in taking extra steps to ensure that, in those elections in which there are same-name candidates, the ballot clearly indicates who's who. One would think that party affiliation ought to suffice. However, a jungle primary with four candidates advancing undercuts party affiliation as an identifier. If the general election ballot contains two Dan Sullivans, they will both be listed as Republicans. Accordingly, it strikes me that state law ought to permit additional identifiers to distinguish the candidates.

One of the culprits here is the jungle primary itself, which allows multiple candidates with the same name and same party affiliation to appear on the ballot. To be sure, even in states with conventional primaries, a same-name spoiler/siphoner could run as an independent. However, that will lead to less siphoning, as all but the lowest-information voters will be able to tell who's who from party affiliation. Unfortunately, there are a fair number of low-information voters.

In the end, I have considerable sympathy for the position taken by Incumbent Dan and the Alaska Republicans decrying Teacher Dan's candidacy. I have very little sympathy for those characters themselves, however, because while they are on the small-d democratic side of the same-name candidate issue, they are on the wrong side of every other issue affecting democracy. While they complain about Teacher Dan exploiting voter confusion with the quite possible aim of aiding Democrats, they heartily support aggressive racial and political gerrymandering, restrictions on voting by mail, voter ID laws, and other measures ostensibly justified as means of addressing (virtually nonexistent) voter fraud but undertaken for the actual purpose of gaining partisan advantage for Republicans.

-- Michael C. Dorf

Is the Insanely Early BigLaw Hiring Schedule a Real Collective Action Problem?

2026-08-17T07:39:19.422-04:00

My latest Verdict column discusses the news that the University of Michigan has adopted a policy (beginning in fall 2027) under which undergraduates' first-semester grades will be masked. And when I say the column discusses the news, I mean that literally. While I say a few words about the costs and benefits of the UM policy, I am mostly interested in the fact that it has garnered so much attention. Colleges and universities around the country have numerous policies regarding academic matters such as grades. In any given year, some of them change. Why was this change national news? The answer, I suggest, is that it fits a pre-existing narrative about the place of universities (especially elite ones) within the culture war.

In the course of describing the new policy, I note that its main purpose is to ease some of the anxiety that new college students feel, which is more acute now than in the past because of an overall increase in anxiety and other mental health challenges faced by the current generation of adolescents and young adults. I also briefly draw a comparison to the situation facing new law students as a result of a law firm hiring schedule that has become insanely front-loaded in the last couple of years. In the balance of this essay, I'll elaborate that development, discuss some potential fixes that have been proposed, and then tentatively float one of my own.

For decades now, law students who are interested in working for a major law firm have been able to obtain entry-level associate offers chiefly by working at such a firm for the summer after their second year of law school, doing a reasonably good job, and then getting and accepting an offer to come work for that firm on a full-time basis after graduating from law school (or after a judicial clerkship following graduation). When I was a law student in the late 1980s, the summer associate hiring process occurred mostly in the fall of the second year of law school. Firms would send teams of interviewers to law schools (or to satellite locations) for screening interviews and then invite those students who passed the screeners to visit the firm. The process was typically completed by the end of the first semester of the second year of law school or a bit later.

With some minor tweaks, that continued to be the process until very recently. One of the minor tweaks was to move the screening interviews to the end of the summer before second year, but that didn't really affect anything, because it still meant that firms were making post-2L-summer-associate offers based on two semesters of grades (from the first and second semesters of the first year).

The process began to change in 2018, when the National Association of Law Placement eliminated its timing guidelines. It changed even more dramatically since the COVID-19 pandemic, when screening interviews and many callback interviews began to be conducted via Zoom. No longer tied to the law school screening processes, firms conducted interviews on their own schedule. They then leapfrogged each other, starting the screening successively earlier and earlier to gain an advantage. As a result, the process now occurs mostly in the very first semester of law school. That's right. The law students beginning their legal studies over the coming weeks must contend not only with the challenges that have beset prior generations of students, plus the anxiety of whether AI will render useless the education for which they are paying a fortune, but also putting together materials to apply for what are for most of them their post-graduation jobs.

Indeed, students are understandably putting together their application materials for biglaw jobs even before law school begins. At Cornell, our admissions office now coordinates with our placement office to guide and assist entering students with job applications even before they arrive on campus. Similar support for what we call 0Ls is being offered at other law schools as well.

Nobody thinks the super-early start to the law firm hiring process is good for anyone. David Lat appropriately calls the new schedule a "lose-lose-lose" proposition. Professors Jeanne Fromer and Mark Lemley likewise decry the madness of the current situation. They offer different solutions to what everyone seems to agree is a collective action problem.

If the major law firms could all agree on something like the old system, everyone would be better off. The difficulty is that antitrust law forbids that kind of agreement among competitors. In addition, even if antitrust law did not forbid voluntary cooperation, the result would be a cartel, with the usual tendency of cartels to break down due to the gains available to defectors. The cartel solution to collective action problem has its own collective action problem.

The classic solution to a collective action problem is regulation with sanctions for defectors. Lat discusses two possible sources of such sanctions. One is a collective of law schools. The difficulty there is that the law schools themselves could be charged with collusion in violation of antitrust laws. Taking note of an open letter from student representatives at a variety of schools, Lat also suggests that the American Bar Association (ABA) could build into its accreditation standards for law schools restrictions on early recruiting. Given the negative impact of the current schedule on first-year learning, that does seem like a natural fit. The difficulty is that the ABA itself might then be deemed complicit in an antitrust violation. Moreover, as Lat notes, the Trump administration has the ABA in its sites as an unduly "woke" institution. Under the circumstances, the ABA is unlikely to take the risk of action subject to some legal doubt.

Fromer and Lemley have a proposal that would avoid the antitrust problem. There has long been a so-called state action exception to antitrust law. If the state itself favors cooperation or monopoly via regulation, that is not an antitrust violation. And, as Fromer and Lemley also note, the Supreme Court has already held that state bar rules promulgated by state courts count as antitrust-exempt state action. Thus, they propose that state high courts promulgate a rule requiring firms to hold open any offers they make for post-2L summer associate positions until at least October 1 of the 2L year. Doing so would mean that a firm that delayed its recruiting until the end of the summer after the first year of law school would be at no disadvantage relative to firms starting earlier. Thus, presumably, all firms would delay in this way so that they could obtain more information about the students they are screening.

I think the proposal of Fromer and Lemley could work, though, as they note, it depends on state high courts acting, and many might not, especially if the issue came to be seen through a partisan lens. That risk, they say, would be mitigated by actions of key state high courts, like those in California and New York.

I support the Fromer/Lemley proposal because it looks like it does not run afoul of the antitrust laws and holds the potential actually to respond to a collective action problem. But I wonder whether there is a real collective action problem here.

By that, I do not mean that we are not seeing what we are seeing. The timeline has been pushed forward, and I have no doubt that has happened because top law firms don't want to be left behind in the scramble to snatch up the best future lawyers. But I wonder whether some firms might do better (or at least as well) in the current regime by waiting. My suggestion is that, seen from the right perspective, there is no genuine collective action problem.

To see why that might be so, consider what a summer associate program is: Students who have just completed two years of law school are given some not-very-important assignments (because it would be irresponsible to give important work for clients to non-lawyers) subject to at-best uneven supervision (because it would be bad for the firm's bottom line for senior associates or partners to spend a lot of time supervising summer associates). In exchange, the summer associates are wined, dined, and shown a good time. I wrote about how this worked in a parodic April Fool's essay in 2012. Summer associate programs at the top firms aren't quite as lavish as they were before the 2008 financial crisis, but they are still perk-laden experiences geared at recruiting.

It shouldn't work on savvy students. Here's my reconstructed recollection of a joke I heard decades ago to illustrate why:

A man flatlines in a hospital operating room. To his chagrin, he finds himself falling and passes through the gates of hell. To his surprise, hell looks like a resort hotel. There are people lounging poolside, fancy restaurants, and all sorts of activities and creature comforts. Presiding over all of it is a smiling Satan in a t-shirt reading "Welcome to Hell: Aren't You Glad You Were Bad?" Suddenly, the man is rapidly rising and finds himself back in his body, alive. It was only a near-death experience. He resolves to live the rest of his life as an amoral libertine, reasoning that the worst that can happen is that he goes to hell, which would be great. He sins for the rest of his days. Eventually he dies for real and once again finds himself falling. He lands in a stinking wasteland that is unbearably hot and in which demons are tormenting the residents endlessly. He sees Satan, no longer smiling nor wearing that t-shirt. "Hey, Satan," he says. "What gives? I was here 20 years ago and it was nothing like this." Satan replies: "That was our summer associate program."

Unless they're incredibly naive, summer associates should not be persuaded by perks. Nor should they place as much value as they do on a job as a summer associate as a pathway to a full-time job. True, in good times, most summer associates get "permanent" offers, but I put those scare quotes there for a reason. Law firm associates are generally employees at will who can be fired for any reason (other than the limited ones proscribed by anti-discrimination law and similar bodies of law). Indeed, in bad times, law firms have been known to revoke "permanent" offers previously made to summer associates before they even show up for a day of work.

So, from the summer associate's perspective, the job is less than it is generally cracked up to be. To be sure, contrary to my claim above that the summer associates don't get very good assignments, the story linked a few paragraphs up says this:

The summer associate experience has historically been somewhat artificial, with many firms offering made-up tasks and discrete research assignments that bear only mild resemblance to actual responsibilities. However, the recession prompted an increased reliance on summers at many a cash-strapped firm, and offering 'real' work soon became not only a priority but a necessity across the profession.

Color me dubious because the obligations to clients and financial dynamics I mentioned above still apply. In any event, even if the summer associate work experience now is more genuine than pre-2008, that only makes it somewhat more valuable for the summer associates themselves. From the firm's perspective, a summer provides only very modest means to evaluate summer associates for full-time offers--and that's after the field has been cut down by choosing post-2L-year summer associates based on at most first-semester 1L performance. I'd bet that a firm could make at least as good, maybe better, hiring decisions if it had five semesters of grades, journal and paper-writing experience, performance in a law school clinic, and other indicia of legal acumen to evaluate before making offers.

And that leads me to my proposal. Some prominent biglaw firm could announce that it would shrink or eliminate its summer associate program and would henceforth fill most or all of each entering class of associates from a pool of 3L applicants who had spent their prior summer working somewhere else. As a sweetener, the firm could offer large bonuses to such applicants. (The money for these bonuses would come from the savings to the summer associate program). Interviews could be conducted two years later than they are now conducted but still with plenty of lead time. The pool would be expansive.

Accepting an offer from a law firm is not necessarily a contractual understanding, so 3Ls who accepted their offers from their post-2L summer employers would be able to renege and then apply for and take the competing offer. If the firm offering this later approach is prestigious, as I'm hypothesizing, there probably wouldn't be negative professional reputational consequences to students from summering for X, accepting X's offer, but then reneging and accepting Y's offer (and signing bonus). But if that proves to be an obstacle, firm X could conduct its interviewing and hiring just before or during the actual running of the competing firms' summer programs. That would still give X a much better sense of applicants' law school performance.

There is a model for what I'm describing. Before law firm hiring broke down, judicial clerkship hiring broke down in more or less the same way, with applications for some "off-plan" judges now occurring in the first year. Some savvy judges have found that they can get excellent law clerks simply by waiting. While their peers hire earlier and earlier, they actually prefer 3L applicants or applicants who are already out of law school. To my knowledge, judges who proceed this way are quite happy with the outcome.

So, if you are a lawyer with hiring responsibility at a prestigious Biglaw firm, and if you are frustrated by the maddening turn that the process has taken, I offer you, for free, an alternative: get out, or nearly out, of the summer associate program game entirely. And if no firm takes me up on my suggestion, I'll keep my fingers crossed that state high courts adopt the Fromer/Lemley proposal.

by Michael C. Dorf

Are the Lives of Public Officials More Valuable than the Lives of Others? (Thoughts Inspired by the Air Force One Ruse)

2026-08-14T07:00:00.000-04:00

Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit was an infamous bosshole to his clerks. He frequently pitted them against each other, going so far as to designate one clerk as his favorite and assigning all work to that clerk, who would then be responsible for further divvying it up with co-clerks. But it was easy to fall out of favor with Judge Kaufman, leading the role of favorite--and with it the favored desk--to shift frequently based on the judge's whims. The job of a law clerk involves long hours but clerks rarely quit because a federal appellate clerkship is a plum job that opens doors for an entire career. Most judges have never had a clerk quit. Judge Kaufman's clerks quit on a regular basis. I learned about Judge Kaufman from the lore among Second Circuit clerks (including my late wife, Sherry Colb, who clerked for Judge Feinberg in 1993-94), but I have confirmed nearly all of what I heard from other published accounts, including Martin Siegel's 2023 book Judgment and Mercy.

My favorite Kaufman story, which I heard decades ago and a version of which Siegel also recounts, goes like this: One Saturday, Kaufman and his clerks were working in chambers when the phone rang. Because it was the weekend, Kaufman's secretary was not there, so Kaufman answered the phone himself. He listened for a few seconds, then hung up and, without saying a word to the clerks, put on his hat and coat and left the chambers. Some time later, Kaufman returned to chambers and, as he was hanging up his hat and coat, muttered under his breath: "Bomb threat."

I recount this story today for its obvious resonance with the recent revelation that the Secret Service used a ruse to spirit President Trump out of Turkey via a military plane while using the older version of Air Force One as a decoy--without telling the journalists or many of the White House staff left to fly on Air Force One that the president had surreptitiously left the plane or that the U.S. military and Secret Service were concerned that Iran or its proxies were trying to target the president's plane with a missile. Trump has stated that the Secret Service, not he, made the decision to have him fly in the military plane and use Air Force One as a decoy. That might be true, but he also implausibly claimed that, as the NY Times story just linked put it, "the plane that the public did not know he was on, rather than the plane carrying his staffers and Air Force One insignia, was the plane [the Iranians] were 'more likely to go for.'" And there's the fact that Trump constantly lies about everything.

Thus, it's quite possible that, like Kaufman with his law clerks, Trump decided to save himself and others be damned. That would be consistent with his character. Indeed, although not directly relevant to these incidents, I can't resist observing that Trump and Kaufman are bound together through Roy Cohn. Judge Kaufman is best known as the judge who sentenced Julius and Ethel Rosenberg to death. It eventually came out that this was no accident. Kaufman wanted to be the judge on the Rosenberg case and used his influence with Cohn to get assigned it (in contravention of the usual assignment system). Cohn would later take Donald Trump under his wing and teach him how to lie, cheat, and abuse power.

But I digress. What I want to ask now is whether there is or can be a justification for favoring the lives of presidents, judges, and some other public officials over those of the rest of us. My honest answer is yes, at least sometimes.

To be sure, there are a great many circumstances in which the lives of others should count equally. Judge Kaufman had no good reason to leave his law clerks exposed to the possibility of a bombing he himself sought to avoid because warning them would not have jeopardized his safety in any way. The Trump Air Force One ruse might be different. Journalists traveling with the president are sometimes informed of security measures but asked to keep them secret. If that was a possibility for the flight out of Turkey, the journalists should have at least been notified of the risk of traveling on Air Force One. But perhaps an exodus of journalists would have been a tipoff. And perhaps smuggling everyone onboard Air Force One onto the food cart in which Trump and a few aides exited was not practical either. It is thus possible that the only way to protect the president under the circumstances was to expose the journalists and unknowing White House staff to greater risk. (Apparently Marco Rubio knew of the danger and the ruse but not everyone on the plane did.)

So: Is there a reason to value the life of the president more highly than the lives of others?

By that question, I don't mean to ask whether there is a reason why greater security precautions should be taken to safeguard the president, judges, and other government officials than are taken to safeguard the rest of us. The president, Justices, judges, and some other government officials face greater risks from people eager and willing to engage in political violence. They need greater protection just to get them to the level of safety that most of the rest of us already have.

I'm asking now about providing greater protection for government officials even beyond what's needed to get them to the level of ordinary-person safety--or about protecting them in a zero-sum situation in which that means relatively endangering others. And the answer, it seems to me, is again, yes, at least to some extent.

Violence against anyone (except in justifiable self-defense or defense of others) should be prevented to the extent possible, but harm to government officials does damage beyond the harm to the individuals in their personal capacity. Whether such violence comes from foreign or domestic actors, it damages democracy (when elected officials are targeted) and the rule of law (when judges, prosecutors, and some other officials are targeted). Thus, in situations that really are zero-sum, the safety of a regular citizen can be given somewhat less weight than the safety of a president, a judge, or some other government official without implying that the life of the person who occupies the special role is any more valuable than the life of someone who does not. The sacrifice aims to prevent bad actors from subverting democracy or the law.

I hasten to add that the word "somewhat" does important work in the penultimate sentence of the previous paragraph. It is justifiable for Secret Service members to sprit the president away expeditiously during an assassination attempt, even as they are not taking the same measures to protect bystanders. It would not be justifiable for the Secret Service to turn bystanders into involuntary human shields or expose them to a grossly disproportionate risk. Not having seen the intelligence that led to the decision to divert Trump to the military plane and leave the unwitting journalists and White House staffers to ride the decoy, I cannot say whether the risk to which they were exposed was unjustifiable under the circumstances.

Finally, I am aware that there is bitter irony in what follows from my analysis. President Trump has already faced two assassination attempts. He is not wrong when he says that he faces threats constantly. However, through his grossly irresponsible statements and behavior (especially the J6 pardons), he has fostered an environment in which the actuality and threats of political violence have increased. That is not a reason why Trump should receive less protection than any other president would receive under similar circumstances. It is one of the many reasons to lament that he is president.

-- Michael C. Dorf

It's Not Just the Tech: Driverless Cars Inevitably Force Us to Make Political Choices About Regulation and Funding Different Types of Transportation

2026-08-13T07:32:20.398-04:00

Will we ever reach the point where cars are fully autonomous (that is, driverless)? If so, how soon? At that point, will the American political system create -- and enforce -- safety regulations that are not simply blank checks for the tech/auto companies? And most importantly, when we pour money into driverless cars and the infrastructure that they will require, what are the tradeoffs? That is, what are the possibly better alternatives that we will leave behind?

Last Friday, I returned to the topic of driverless cars, about which I had previously written only twice (in 2016 and 2023). Having written Part 1 of "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" just the day before, I was burned out and thus chose to delay writing a very heavy Part 2 until Tuesday of this week, intending to write a relatively light Friday column on a relatively apolitical topic. So much for that. In closing that column, I conceded that "in its way today's discussion sets the table for the conclusion of my more overtly political 'Now We'll See Whether the Democratic Establishment Truly Cares About Democracy' column." Hence the title of that column: "About Those Driverless Cars and the Political Power Play Behind Them."

I suppose it is neither here nor there that this overlap was unplanned, but it certainly was, which I think makes my conclusion possibly more interesting, to wit: the Democratic Party's establishment players will almost certainly give away the store to the tech bros on driverless cars.

The fundamental reason for the overlap is that the safety of driverless cars is not truly a technological issue. How could it not be, one might reasonably ask? After all, driverless cars seems almost technologically inevitable, such that my statement last Friday "that there truly might be insuperable barriers that will make fully person-independent driving impossible" seems almost weird. What was I thinking?

In a trivial sense, I suppose that I might merely have been saying the equivalent of "allegedly" after having written earlier in that column that "[t]here is a very straightforward story in which driverless cars become feasible -- under assumptions that certainly do assume technological advancements, but not of the sort that are imagined with 'Terminator 2'-like melting and reshaping robots." It is still not a certainty, and until I see it, it is still in the category of hoverboards.

I might also point out that we have had "autopilots" in airplanes for decades -- including Otto! -- but so far as I know, we are nowhere near having pilot-less landings. Again, until I see it ... hoverboards.

But that narrow interpretation ultimately misses the point, because even today the technology exists to create a driverless car that would never kill anyone. Think about when automobiles themselves were first invented. I recall reading years ago that, when the first cars were introduced, some jurisdictions required every car to be preceded by people on foot waving red flags. I am too lazy to search for that anecdote, but even if it turns out that it was apocryphal (or a product of my faulty memory), the point is that cars with no bumpers, no collapsing steering columns, and no seat belts or air bags could be -- using then-available technology -- completely safe to the people both inside and outside of the cars.

This means that safety is ultimately not a matter of "getting the tech right and then getting out of the way," because no matter what technology exists, economic incentives will exist to push boundaries and take risks that would not be allowed under more careful regulation. I should add that I am not at all saying that I would have kept the rule requiring human automotive escorts, especially because such a rule made the car almost entirely useless -- except as a delivery vehicle, which not-fer-nuthin' would have been a great thing for animals.

But the point, again, is that the question is not whether the "safest tech" exists. We could, after all, allow driverless cars to operate everywhere today, limiting them to speeds of 10mph or less and requiring them to be swaddled in 24-inch-thick bubble wrap. That would be expensive, however, which brings us right back to the question of what public policy will allow in terms of costs versus safety. The current versions of these cars are surely losing money because the companies are loading them up with features that they will soon want to abandon.

For what it might be worth, however, the evidence on the safety improvements in current-generation driverless cars is arguably encouraging. The Insurance Institute for Highway Safety (IIHS), for example, recently reported that, "[p]er vehicle mile traveled (VMT), Waymo’s driverless vehicles deployed in San Francisco, Phoenix, Los Angeles and Austin were involved in 68% fewer crashes than human drivers, researchers found." There are good reasons to be skeptical about how honest or meaningful those numbers are, but even if they are on the up-and-up, the IIHS added: "'The results show that, on a limited scale, these driverless cars are safer than human drivers — who can be impaired or drowsy or suffer lapses in attention,' IIHS President David Harkey said. 'However, the present data collection system isn't good enough to allow continuous monitoring of a large-scale expansion.'"

In any event, the question again is about the interaction between any particular tech, the related economic incentives, and the regulations that are put in place to determine how big the risks can be. At a minimum, we ought to be able to expect that the current environment, in which the public is still skeptical/uncomfortable about the very idea of driverless cars, would be the high-water mark of careful regulation -- and for that matter, self-regulation by companies that surely know how bad the optics of "driverless car kills dozens" would be. Right?

Not so much, it turns out. A San Francisco-based writer at Business Insider, Lloyd Lee, began a piece that ran last week ("Robotaxis are scaling now, fixing problems later") by noting that he has ridden in Waymos and felt reasonably safe (but still vigilant), but he then went on to argue that the tech companies are succeeding in pushing ahead in the US and the UK in ways that even their own data do not seem to support:

In Florida and Texas, Tesla added new service areas for its Robotaxi. In some regions, the company has started offering a limited number of unsupervised rides.
Robotaxi companies are also expanding beyond the US. Uber and UK-based Wayve said on Wednesday that they received regulatory approval to start offering supervised autonomous rides in London this summer. Waymo also plans to launch a commercial service in London by the end of the year.

Lee immediately added that "[t]he rapid pace of scaling can give the impression that robotaxi companies are confident that autonomy has largely been solved." Is it?

The problems have been persistent enough for SF's pro-tech mayor, Daniel Lurie, to call for stricter statewide regulations last month.
Those calls have extended to the federal level, where regulators from the National Highway Traffic Safety Administration warned of the pitfalls autonomous vehicles still face in active emergency scenes.

NHTSA Administrator Jonathan Morrison wrote in a July 8 letter to AV developers that the federal agency has documented a "clear pattern of driverless AVs interfering with law enforcement and other first responders."
"The question is, as they expand, can they fix [the problems] as fast as they find them?" Koopman said. "And with floods and construction zones and a bunch of other things, the answer is they haven't been able to fix them."

And this is where the ugly politics of the Democratic Party's establishment become the most worrisome part of the story. In my "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" piece, I focused on Third Way, which is the most powerful group of connected political insiders who constantly push the party to reject anything progressive, from labor rights to environmental limits to consumer safety, being especially enraged right now about some Democratic candidates' support for Medicare for All.

Why do these nominal Democrats reject all of that? It turns out that they are called "the corporate wing" of the party for a reason. Why run the risk of annoying your richest backers by regulating them? Last week, a writer named Thom Hartmann wrote an excellent short history on Third Way and its Clinton-era predecessors, "Who Is the 'Third Way' and Why Are They Fighting Progressives Instead of Republicans?" It is very much worth reading in full, but this passage captures the key point here:

Describing themselves as committed to "democratic capitalism," they explicitly recommend Democratic politicians maintain relationships with wealthy donors, use capitalism as the framework for Democratic governance, create "partnerships" with business, and push "market-oriented solutions."

...

The simple reality that Third Way understands is that on-the-take Republicans on the Supreme Court have — in 5-4 all-Republican-appointee decisions — legalized a corrupt oligarchic system where massive corporations, foreign governments, and morbidly rich individuals can essentially buy elections for their favored candidates.
....

Instead of joining progressives in working to tear it down, they're choosing to work to keep the corporate-owned Democrats in power and keep those unwilling to take PAC money out.

In the context of driverless cars, as in every other area, "partnerships" with business and "market-oriented solutions" will amount to blocking any attempt to regulate business meaningfully and, if that fails, to water the regulations down and under-enforce them. As a related example, the current political battle over regulating social media reportedly resulted in an interim bipartisan agreement that "does not include a 'duty of care' provision, [which] would require companies to design social media platforms with children's safety in mind." As always, the Democrats overall have a better record on this, but the pressure not to regulate the party's donors is intense, and the establishment always seems to take the side of ~~businesses~~ donors.

Finally, there is an entirely different set of political decisions that must be made when dealing with driverless cars, involving what economists call opportunity costs. I quoted above part of a sentence from my column last Friday regarding the tech issues that need to be worked out, but the full sentence is relevant here:

There is a very straightforward story in which driverless cars become feasible -- under assumptions that certainly do assume technological advancements, but not of the sort that are imagined with "Terminator 2"-like melting and reshaping robots -- after which it could be a relatively straightforward matter of redeploying federal transportation funding to allow driverless cars to interact with street signs and tech embedded in roadways.

What I airily described there as "a relatively straightforward matter" is, however, the whole enchilada. When I wrote those words, I was imagining having federal highway funds taken away from building more roads (and adding more lanes) and instead appropriating the money toward making existing highway infrastructure tech-friendly in ways that could enhance safety. That, however, is almost certainly hopelessly naive.

After all, one of the most politically useful arguments for funding public transportation is that it is very, very safe. It is also much better when it comes to land-use, pollution, resource depletion, and so on. But telling people that "cars are now 100 percent safe" -- even if we were also to use technology and resources to make public transportation equally safe (which I doubt the politicians would approve) -- will only make the demand for private transport rise. Indeed, the tech companies have been claiming that driverless cars will clear out space on urban streets by eliminating parking spaces and shortening following distances, but at least so far, the cities that have approved wide adoption of driverless cars have seen more traffic, not less.

The larger point, however, is that even safe cars are wasteful. Unfortunately, Republicans hate public transportation, and corporate Democrats will invoke their favorite "fiscal responsibility" dodge to say that we should not push for more public support of even non-wasteful transportation within and between cities.

This, in turn, means that it makes no sense to limit ourselves to thinking only about an idyllic world in which cars are suddenly safe. Even if that were possible, there are good reasons to suspect that the laws and regulations that make them safe would be attacked and diluted. Meanwhile, some guy once famously said that there is no free lunch. Every dollar spent on one thing cannot be spent on anything else, which means that it is not a matter of "driverless cars or not" but "driverless cars instead of what?" On both regulation and spending, the Democratic Party's establishment is unlikely to be on the right side of the debate.

- Neil H. Buchanan

The Case for Pragmatic Pluralism as the Best Method of Constitutional Interpretation

2026-08-12T07:00:00.000-04:00

How judges should interpret the United States Constitution is an issue as old as the Constitution itself. The myth that the text plays a serious role in constitutional cases can be debunked by simply recognizing that judicial review itself, a power never used by judges anywhere in the world prior to the American colonies, is nowhere mentioned in the Constitution. Nevertheless, as a matter of structure, history, and common sense, the power of judges to refuse to give effect to laws that violate the Constitution is an essential feature of American democracy. Moreover, it is a justifiable conclusion based on a theory of constitutional interpretation I will call pragmatic pluralism (which is a phrase used by some in the sciences as well).

Perhaps the best example of judicial pragmatic pluralism comes from one of the most important cases in American history-McCulloch v Maryland. This litigation involved the first important constitutional debate arising after ratification: the constitutionality of the first Bank of the United States, which Alexander Hamilton strongly supported and Thomas Jefferson emphatically opposed. Using a combination of text, history, structure, and attention to on-the-ground consequences, Chief Justice John Marshall upheld the constitutionality of the Bank even though the Constitution does not expressly give Congress the power to create a national bank.

As a descriptive matter, ever since McCulloch, judges and justices have paid attention to what Professor Phillip Bobbitt famously labeled the six modalities of constitutional interpretation: text, history, structure, doctrine, ethics/morality, and attention to consequences.

Prior to the 1970’s, when originalism first emerged as a political response by conservatives to the liberal decisions of the Warren and early Burger Courts, most judges and scholars recognized that difficult constitutional cases require the balancing of conflicting values and priorities. But with originalism came the fanciful idea that judges should strongly prioritize either the original intent or original meaning of the constitutional text. But originalism is fool’s gold. Absent binding precedent or crystal-clear text, judges have always paid the most attention to the real-world consequences of their decisions, and that is as true for the self-identified originalists of the Roberts Court as for the liberal justices of the Warren Court. I detailed at great length how little the Roberts Court actually cares about originalism (as opposed to pragmatic realities) in this recent article.

Judges with life tenure interpreting imprecise text written centuries ago will inevitably give that text a modern reading consistent with their values, politics, and ideologies. This is the story of American jurisprudence from McCulloch to Lochner to Steel Seizure to Brown to Roe to Bush v. Gore to Dobbs to Trump v. United States.

If one wants to limit or cabin judicial discretion in constitutional cases, the best and most direct way to accomplish that goal is to require judges to give strong deference to other political decision makers, just as appellate judges give deference to the factual findings of trial courts. But after decades of advocating for exactly that approach, I’ve come to realize that strong judicial deference is probably unattainable absent serious Court reform, which is unlikely to happen anytime soon.

That being the case, the best we can hope for is for judges to transparently admit that they are pragmatic pluralists and honestly describe the reasons for the decisions they make. The Roberts Court has not privileged religion, guns, and deregulation because the justices are originalists or textualists. Its majority privileges those constitutional values because they are conservatives, libertarians, and Republicans. The dissenting liberal justices do not disagree with the prioritizing of those values because of text or history but due to serious disagreements over what they see as the negative consequences of those decisions.

In future writings, I will specify in more detail what I mean by pragmatic pluralism. But for present purposes, it is enough to say that, while text and history may provide helpful context to our constitutional debates, the most important driver of results in constitutional cases is now and has always been judicial attention to the consequences of decisions. That reality cannot be avoided by insincere reliance on imprecise text or contested history.

Judges will judge, which requires hard choices and self-conscious awareness of the personal values that motivate the resolution of difficult constitutional questions. Hiding those values behind the misleading rhetoric of text and history reduces government transparency and threatens the rule of law. Pragmatic pluralism is not perfect, but it is the most accurate description of our constitutional traditions and may simply be the most we can expect from life-tenured judges with enormous power interpreting an ancient document that, for better or worse, we still treat as our fundamental law.

-- Eric Segall

Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 2 of 2)

2026-08-11T16:35:47.065-04:00

For those of us who follow US politics reasonably closely, the 2026 primary season has been quite a ride. And we are back at it today, with several more states holding primaries. One of the safest predictions I can make is that lazy pundits and journalists will once again describe conservative Democrats as "moderates," even though there is not even a passing attempt to analyze -- or even to identify -- an affirmative vision of their policy views on economics, foreign affairs, climate, and other issues, much less to show how those views are somehow in the middle of a range of identifiable competing alternatives.

Even so, the coverage from both pundits and "straight news" sources will again lean into the same old caricature: wild-eyed lefties versus worried moderates. How can I be so sure about that? Because that is what has been happening for years, and the political conversation in this country is nothing if not tediously predictable.

Last week, in Part 1 of this column, I focused in large part on the fight for the Democratic US Senate nomination in Michigan, a contest that became particularly ugly as the national Democratic Party's establishment and key funding sources moved aggressively behind the non-progressive candidate, Haley Stevens. I noted that during the campaign, Stevens had debased herself in a way that was worse than I could have ever imagined from a non-Republican.

Her opponent, Abdul El-Sayed, criticized her for the $30 million that she received from one of the most unpopular organizations in US politics today -- a group that is so unpopular, in fact, that it hides its funding of favored right-leaning candidates behind shell groups. That group is unpopular because it is devoted to supporting candidates who will not challenge US support for the Netanyahu government, a government that clear majorities of Americans in general and Democrats in particular do not support.

To be clear, any group is free to take that unpopular position, but any other candidate or group should be free to criticize it and those who support it. Instead, Stevens dove into the cesspool with this: "Everyone in America understands you want to blame all of your problems on Jewish Americans." Such a grotesque smear should have been disqualifying, but the power players in the Democratic Party stuck with her. She did end up losing a close race, but she should have been a pariah.

The question that I raised in the title of this two-part column is whether the losing side of that intramural battle is now going to say, "Well, we lost another one, but we're still Democrats who care about the future of American democracy, so let's all join hands and get El-Sayed and the others into office." To her credit, Stevens quickly said the right things, but I stand by my statement last week that there are some bells that cannot be un-rung in a general election. Claiming that a Muslim man whose parents immigrated from Egypt wants to blame all of his problems on Jewish Americans easily falls into that category.

But no matter what one thinks about Stevens's actions before and after the election, she was merely the favored candidate of a party leadership that is anything but reliable when it comes to "backing blue, no matter who." The same people who are freaking out about El-Sayed were so incensed about now-Mayor Zohran Mamdani winning their party's nomination in New York City last year that they shamelessly backed an independent campaign by disgraced former Governor Andrew Cuomo, who then lost badly to Mamdani. Notably, the same group of old men who tried to block El-Sayed in Michigan stood behind an accused sexual assailant in New York.

Who are they? Chuck Schumer, Jim Clybourn, Hakeem Jeffries, and others. In other words, the same people who claimed in 2020 that the only way for Democrats to win was to nominate Joe Biden and who then did nothing while he and his Attorney General slow-walked the pursuit of justice. And when people suggested that maybe Biden should have cleared the way for a generational shift in 2024 -- even though that process could have produced a younger version of the defensive-crouch Democrats that Schumer et al. love so much -- everyone was told to shut up and fall in line.

I have recently begun to insist on using the word "establishment" rather than the empty labels "moderate" or "centrist," because both of the latter terms make it sound as if the party's leaders are in some ideal "safe middle ground" of American politics. But other than opposing much of the progressive agenda, it is often difficult to figure out what those people want to accomplish. As I will explore below, theirs is almost entirely a reactive, negative approach to politics. Indeed, there is a strong argument that many of those people are part of the Democratic Party not because they have a positive vision of what their party could achieve. Instead, they want to make sure that the two-party system in the US never has a party that is dominated by progressives. That is, their strategy could have been: "Let's put all of our efforts into supporting Republicans and defeating Democrats every time." Instead, they have opted for this: "Even when Democrats win, they should be the kinds of Democrats who will never rock the boat."

That is a rather aggressive conclusion on my part. Where does it come from? For one thing, the establishment's response to El-Sayed's win has been quite a show. The headline writers for The New York Times announced: "Moderate Democrats Prepare for ‘War’ Against an Ascendant Left." Was the word "war" an exaggeration by the journalist who wrote the piece? Not at all. It was a direct quote: "'We are preparing for the next war that is coming,' said Jonathan Cowan, the president of Third Way, a leading centrist Democratic group, revealing to The New York Times a new $15 million effort between now and 2028 to discredit democratic socialism." (I wonder if that $15 million could be better spent on defeating Republicans. But I digress.)

So about Third Way. ... I will spare readers a rerun of the history of that group, because I ran through it in a Dorf on Law column on March 31 of this year. They have been around for decades fighting tooth and nail against every genuinely liberal policy that comes along. Indeed, they spend most of their time and money attacking not just "democratic socialism" but what used to be plain-vanilla Democratic policy views. They are anti-labor, anti-environmental, soft on civil rights (especially LGBTQ++), pro-economic orthodoxy, and on and on. They are the Democrats' in-house anti-Democrats.

In that March 31 column, I cited a piece in a liberal magazine titled "Centrists: Better Things Aren’t Possible: Third Way’s strategy session for Democratic moderates lacked any vision other than a hatred for progressives." The author of that piece, Henry Burke, e-attended a meeting of Third Way that was, to say the least, revealing. He wrote: "The event’s speakers celebrated their claim that a similar conference hosted by Third Way in the same location back in 2019 helped power Joe Biden—whom they touted as 'the most conservative Democrat in the 2020 field'—to the White House."

Note that they did not say that Biden was "the most centrist," "the most moderate on policy", or even "the most electable." Their bragging point is that, in a primary field that included "safe" non-progressives like Amy Klobuchar, Pete Buttigieg, Michael Bennet, Michael Bloomberg, and even Tulsi Gabbard (!), Biden was "the most conservative." They could have said "the least liberal," but they went another way. Word choices matter, and that choice fits with what we know about one of the most powerful groups backing the Democratic establishment.

To put it differently, even Third Way itself does not describe its own agenda as finding "moderates" but instead emphasizes finding the guy who is the most conservative. That, among many other reasons, is why it is important to stop falling for the moderate/centrist label.

In his column, Burke also wrote: "What is immediately apparent watching the event is a total lack of any positive vision. Rather than propose a worked-out centrist platform, or even suggest opposition to the Trump administration, the event largely defined itself in opposition to the progressive wing of the Democratic Party." That is, they have no affirmative view of what they want to accomplish. Even if one wanted to argue that they do not need a platform beyond "neither right nor left," it is difficult to see how they think they are going to motivate voters to go to the polls. "Vote for us. We're not for anything that might make some people uncomfortable."

As I noted in Part 1 of this column, a NYT op-ed last week by Thomas B. Edsall was quite interesting in providing legitimate statistical evidence about whether progressive candidates will doom Democrats' chances in November. His conclusion (quoting a political scientist from Stanford) was that it is a wash, with enthusiasm from young progressives providing roughly a one percent boost to Democrats while losing about one percent of swing voters.

To his great credit, Edsall ended the piece by focusing precisely on that enthusiasm gap, first by extending the quotation from that political scientist:

[T]he Democratic establishment is meeting its first organic energy in years with hostility rather than riding it. Pew has the Democratic Party at 59 percent unfavorable, statistically near identical to the G.O.P., and only 52 percent of Democratic-leaners (voters that identify as independent or with another party but lean Democratic) view the party favorably. Those leaners are generally not persuadable defectors. They need a reason to show up, and they skew younger.

In his own voice, Edsall ended the piece with this understated take-down: "While there are arguments of varying persuasiveness over whether [Democratic Socialists of America] candidates are endangering the Democratic Party’s already fragile brand, that does not address why the Democratic Party’s establishment candidates are so vulnerable to socialist challengers in the first place."

Which brings us back to Burke's piece describing Third Way's strategy session earlier this year. After summarizing the vague-at-best policy agenda that made its way into some speeches, Burke quoted a keynote speech by the group's president addressing (among others) the assembled corporate executives in the room. Burke described it as a

murky vision of a "government that works, not a government that grows" and that they "believe in abundance, results, and the urgency of now, not in bureaucracy, endless process, and red tape." Advocates of pointless bureaucracy, government that does not work, and the urgency of no results, consider yourself warned.

And it is these 1980's-era views, still enthusiastically embraced by the now-old "New Democrats." that must be rejected. The most powerful Democrat in the federal government, Chuck Schumer, simply cannot believe that voters today might not be enamored of Ronald Reagan's "government isn't the solution to the problem, government is the problem" nonsense. Establishment Democrats of Schumer's generation truly believe that "regular Americans" are Reaganites, which causes Schumer's wing of the party to continue to push an uninspiring approach to politics that says, at best: "Don't expect us to do anything when we have power. It's too risky."

I continue to believe that this will all become moot when Republicans negate the Democrats' midterm wins this Fall by whatever means necessary, which suggests that perhaps thinking about the Democrats' internal struggles is unimportant. But given that the Republicans might not be able to pull that off, it is essential that Democratic elites stop their insane push against the progressive wave.

In races where the progressive loses, people like Bernie Sanders will yet again step up and support the party's nominees. There is plenty of reason to worry, however, that the right wing of the party will not do the same. Perhaps they think that there will be a place for them in Republicans' post-constitutional order. There will be, but it is not a place that they should want to find themselves.

- Neil H. Buchanan

The Roberts Court Record on Executive Power is Mostly Lose-Lose

2026-08-10T07:00:00.000-04:00

A little over two years ago, in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the Chevron doctrine requiring judicial deference to reasonable administrative agency interpretations of unclear statutes they are charged with enforcing. Because the gears of academic publications turn much more slowly than those of the blogosphere, my article explaining why a key postulate of Loper Bright is wrong has only now been published. I won't claim it was worth the wait, but I do hope that readers will find something worthwhile in it.

The paper is titled Deference and the Rule of Law. It's currently available as something called FirstView via Cambridge University Press here. The final version (which will not be subject to any further editing) will appear in the Canadian Journal of Law & Jurisprudence, so if you're reading this blog post in the future and the foregoing link doesn't work, you might need to go to the journal's website. Also, if you're reading this post in the future, congratulations on finding a working time machine; just don't travel back to the present and create a universe-destroying paradox, or maybe take your chances and do!

But I digress.

The paper is in a Canadian journal because it was originally a lecture I delivered last year in London, Ontario at Western University's Faculty of Law in response to an invitation extended in 2024. I accepted the invitation and planned the lecture when Loper Bright was still fresh on my mind. The lecture/paper is pretty short, so I refer readers to it and will give only a very short summary, followed by an update based on the most recent Supreme Court mischief regarding the president and administrative agencies.

The paper takes as its challenge the suggestion by Chief Justice Roberts’s majority opinion (and the assertion in a concurrence) that the Chevron doctrine was inconsistent with Marbury v. Madison's famous statement that "it is emphatically the province and duty of the judicial department to say what the law is." That suggestion, I contend, is wrong on two grounds.

First, elaborating on an argument that was first articulated by Henry Hart to defend a pre-Chevron version of deference, I explain (and include a couple of nifty graphics that help explain) how one can conceptualize the role of the courts in granting deference as saying what the law is by saying where the bounds of agency discretion lie. (This argument has greater difficulty accounting for the post-Chevron case of Brand X, although, as I argued on the blog in 2020, even Brand X can be reconciled with the Hart account.)

Second, and more originally, I argue that deference to the judgment of other actors is perfectly consistent with the rule of law--and indeed often required by it. When courts deny habeas petitions or civil rights claims because the petitioners or claimants have failed to show that their rights were clearly violated, they are in effect deferring to other legal actors' views of the law. More broadly, whenever a court accepts the judgment of the legislature in a statute or the judgment of the People in a constitutional provision, it is subordinating its own all-things-considered judgment about sound policy to the views of others. It is deferring.

I delivered the lecture roughly ten weeks into the second Trump administration. By that point, it was already clear that, lawless as the first Trump administration was, the second would be far worse. I thus concluded my lecture by asking whether Loper Bright might not be beneficial in the short run, as it could be thought to reduce the number of cases in which the Trump administration would receive deference. I ventured that it would not be very beneficial in that way because the core problem with the Trump administration is not that it exercises delegated discretion reasonably but unwisely; the core problem is that it simply breaks the law and abuses power.

Nothing that has occurred since I delivered the lecture changes that conclusion. However, I heard an interesting view at the Practicing Law Institute Supreme Court Review conference last week that arguably challenges it. One of the other faculty for the day was the Honorable Harris Hartz of the U.S. Court of Appeals for the Tenth Circuit. In response to some characterizations of the Roberts Court as empowering the executive branch, Judge Hartz offered a competing view: the Court is giving the president greater control over the executive branch but is not expanding executive branch power and is in some respects shrinking it.

There are indeed some cases that fit that paradigm: Trump v. Slaughter gave the president greater control over officials exercising executive power, while both Loper Bright and cases applying the major questions doctrine constrain agency power and thus executive power. Judge Hartz pointed to these cases. However, there are other lines of cases that do indicate expanded presidential power.

For example, in Trump v. Hawaii in 2018 and in Mullin v. Doe this year, the Court indulged the wildly implausible assumption that Trump's immigration policy was not motivated by animus: against Muslims in 2018 in the Travel Ban case and against Black Haitians in this year's Temporary Protected Status revocation case. By ignoring clear evidence of constitutionally illicit motives, the Roberts Court empowers the Trump administration to act on such motives. So far we've seen that happen in cases involving religious and racial animus, but it is not difficult to imagine the Roberts Court employing similar faux-naïveté in other cases that might reach it--such as those involving the Trump administration's pretextual targeting of critics for criminal prosecution or funding cuts. Should the Roberts Court say in those cases that it must once again disregard clear evidence of illicit motive, that too will empower the executive branch, at least when led by a lawless, venal, and vindictive would-be autocrat.

Or consider the sweeping immunity to criminal prosecution the Roberts Court recognized in Trump v. United States. By removing almost every disincentive for abusing power, the ruling effectively grants the president and thus the executive branch additional power.

Indeed, Trump v. United States arguably does more than that. The Court's discussion of "conclusive and preclusive" presidential power appears to establish presidential powers that the president cannot be legitimately constrained in exercising; the case does not merely say these are powers the president can get away with abusing. Thus, in future cases, the decision could be cited as authority for limiting statutory constraints on presidential action. That's another latent expansion of presidential power.

Finally, although I agree with Judge Hartz that on its face Slaughter is about presidential control of the executive rather than the scope of executive power, in effect, consolidation of control in the president means more executive power. Some independent agencies are expressly bipartisan, requiring equal numbers of Republicans and Democrats. Others are effectively bipartisan because of long terms and for-cause removal protection. Diversely populated independent agencies cannot act as swiftly as centrally controlled ones, so the latter have more power. Meanwhile, Trump fired Inspectors General without providing the statutorily required 30 day notice and argues in litigation that even that modest procedural limit is invalid. IGs are an internal check on executive power. Here too, greater presidential control of the sort granted in Slaughter means fewer constraints and thus more power.

Accordingly, cases decided since my lecture heighten my concern that the current president will abuse his power. Meanwhile, Loper Bright and the major questions doctrine may serve a conservative Court in blocking a future enlightened presidential administration committed to using regulatory agencies to advance the common good. Taken together, and with limited exceptions, the Roberts Court precedents empower malign presidents who abuse their authority and disempower presidents who would exercise authority in the belief that government can take actions to improve people's lives.

-- Michael C. Dorf

About Those Driverless Cars and the Political Power Play Behind Them

2026-08-07T16:59:20.168-04:00

At the end of "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2)" yesterday, I wrote that I would publish Part 2 of that column today. Upon reflection, however, that topic seems like an unnecessary (and unwelcome) heavy lift on a Friday afternoon, so I have decided to move Part 2 to next week. Instead, I will end this week with a brief update on a policy matter that is not exactly light reading, but it at least is not about threats to democracy and the rule of law in the United States. (I have updated yesterday's column accordingly.) As I like to say, arguably too often): You're welcome.

In any event, this is a good time to revisit the subject of driverless cars, aka autonomous vehicles. One of my current favorite YouTubers is a guy named Dan Toomey at Good Work, whose videos are almost always equal parts informative and hilarious. Last week, he posted "The fight over driverless cars is here," which offered an appropriately cynical update about the efforts by Waymo (Google/Alphabet's driverless car subsidiary) to shove a dangerous technology down the public's collective throat. The bottom line is that Waymo's financial muscle has led spineless local and state politicians to give the go-ahead to a public safety nightmare that is simply not ready for prime time (or even late-late night).

My previous columns discussing driverless cars include "A Mindless Attack on Driverless Cars" in 2016, and "Driverless Cars and Other Emotional Coping Diversions" in 2023. In the former, I was a bit of a naif who was touchingly optimistic about a new technology. In my defense, many people at the time were similarly googly-eyed (pun shamefully intended), for the simple reason that the hoped-for end game here is a world in which people do not have to deal with car ownership's many expenses. Oh, and also perhaps it could lead to a reduction in the 40,000-plus deaths by automobile per year in the United States alone. Again, that is per year.

This, moreover, did not appear to be a matter of hoping for some fantastical tech-Eden solution. There is a very straightforward story in which driverless cars become feasible -- under assumptions that certainly do assume technological advancements, but not of the sort that are imagined with "Terminator 2"-like melting and reshaping robots -- after which it could be a relatively straightforward matter of redeploying federal transportation funding to allow driverless cars to interact with street signs and tech embedded in roadways.

The utopian vision here -- and again, there is a huge difference between utopian and impossible -- is a world in which road rage, drunk driving, falling asleep at the wheel, texting while driving, and all the rest have given way to a level of safety similar to air travel. The numbers are stark: "The 2023 death rate for air passengers was 0.003 deaths per 100 million miles. The rate for car and truck passengers was 0.53." Moreover, the air travel deaths broke down in a way that makes the case for driverless cars even stronger, because about three-fourths of deaths during air travel "involved on-demand air taxis, which are small planes of 10 seats or fewer," while commercial air travel had only one fourth of those deaths. That means that there were five deaths -- 5!! -- in 2023 by air travel that did not involve people running small, dangerous flight operations, compared with over 40,000 deaths by car.

I suppose it is an entirely different matter to note that "[t]he highest rate of fatalities was via motorcycle, which had a rate of 30.6" -- almost 58 times higher than cars and trucks and 10,200 times higher than air travel. After all, the dudes who think that motorcycles are for Real Men are hardly going to go for driverless Harleys. But one thing at a time.

And speaking of 'Murica, I suppose it is also worth pointing out that the occupants of driverless cars will suddenly have their hands free to use their God-protected guns (with an ownership rate of more than one firearm per person in the US, by far the highest number in the world) as they please. I do not want to imagine the shooting galleries that Florida's highways will become. So perhaps that will offset some of the lives saved by technology, but again, one issue at a time.

It is, however, essential to point out that we might never in fact reach that tech-savior world. It is not only because the world's most reviled tech bro has continuously over-promised the arrival of fully autonomous cars but that there truly might be insuperable barriers that will make fully person-independent driving impossible. That is where Toomey's video ends as well: It would be great if it could happen, because it truly would be one of the most important public health breakthroughs in human history, but it is long past time to be skeptical about the notion of tech inevitability.

The central point that Toomey emphasizes in that video, however, is much more in the here and now. As I noted above, Waymo is being unleashed on Americans when the tech is clearly not ready. Why? Here is a line from my 2016 piece, which might count as my most innocently optimistic comment ever:

None of this is to say that politicians and regulators should simply let the companies write the rules. Of course the companies will "balk at regulation[."] There is always a need for public policy to constrain the excesses and arrogance of people (an especially plentiful breed in Silicon Valley) who view themselves as the geniuses who will save humanity. But again, vague assertions that politicians seem excited about driverless technology are hardly proof that they are going to roll over and allow Google to sell [unsafe driverless] cars.

To be sure, I have already mocked myself for that statement, writing in my 2023 column that "Pollyanna had nothing on me!" But the point is worth emphasizing again and again, because we have in fact learned in the intervening ten years that politicians will in fact "roll over and allow Google to sell [unsafe driverless] cars."

In that 2023 piece, I also compared my relative optimism about driverless cars to my oft-repeated equanimity regarding corporate ownership of homes. That is, there is nothing inherently wrong about allowing corporations to own single-family homes and rent them to willing lessees, any more than there is a reason to think that apartment buildings should always and only be condos or co-ops. What matters is that the legal framework within which profit-seeking businesses operate must be appropriately calibrated to prevent vulture capitalists from running amok.

Having lived in pleasant rental apartments as well as in hellholes, I doubt that the difference lies in the hearts of the owners to whom I sent my monthly checks. As my financial situation has improved over the course of my lifetime, I have been able to put myself into situations with relative balance between the contracting parties. But owners of relatively high-end housing are responding to legal rules that people like me have the political clout to create and enforce.

As it stands, then, both driverless cars and corporate ownership of single-family homes are the latest examples of what goes wrong when we let the chaos of the Wild West rule the day. That is not at all a reason to give up on politics, which would simply allow the exploitative insanity to get worse. The only response to unbalanced policy choices by politicians is to pressure those politicians to create a fair and sustainable equilibrium.

And that, as it happens, is a nice place to end this column, because in its way today's discussion sets the table for the conclusion of my more overtly political "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" column next week.

- Neil H. Buchanan

Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2)

2026-08-06T16:30:03.326-04:00

Even though the subject matter of today's column is anything but funny, I will begin with a humorous pop-culture reference. In one of the (few) scenes in the movie "Animal House" that is still amusing and inoffensive, one of the Delta fraternity brothers takes the floor at a disciplinary hearing at which his house has been (accurately, albeit vindictively) accused of violating all kinds of Faber College rules. Here is the end of his speech:

But you can't hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America.

That evasive non-defense is hilarious because it lampoons a common trope on the right in US politics, where Republicans absurdly expand an accusation to damn as traitors everyone who disagrees with them. The shortest-hand version of that move is: "Why do you hate America?" I have even used that movie reference before on Dorf on Law, in a 2022 column referring to Fox's former "I'm just asking questions" guy. The trope amounts to deflecting specific and directed criticism by pretending that the criticism is a broader insult to good and decent folks everywhere.

Why bring it up again now? Leading up to the primary for US Senate in Michigan this week, the Democratic party establishment's candidate was Haley Stevens, a "moderate" (scare quotes to be explained in Part 2 tomorrow next week) congresswoman who was heavily backed by record-setting amounts of money (along the lines of $60 million, for a single Senate primary). Her opponent, Abdul El-Sayed, is a critic of the Netanyahu government's actions in Gaza, a stand that guaranteed that a ton of the money pouring into Stevens's campaign was from the American-Israel Public Affairs Committee (AIPAC).

Both the Democratic electorate in Michigan and the American people in general have notably turned against the Netanyahu government in the last year or so. More to the immediate point, AIPAC's public image has become so toxic that it has resorted to creating front groups with innocuous names, such as Elect Chicago Women and the Chicago Progressive Partnership, very non-progressive shell organizations that attacked a female candidate in an Illinois congressional primary earlier this year. Whatever the merits (or lack thereof) regarding the policies at stake, it is hardly a surprise that a candidate would highlight and criticize AIPAC's support of his opponent.

But here is the galling punchline (as reported last weekend in The Guardian): "And in a Twitter post this week, Stevens criticized a video where El-Sayed criticized Aipac, with Stevens saying: 'Everyone in America understands you want to blame all of your problems on Jewish Americans.'"

Again, this is the unfunny echo of the rant from "Animal House." El-Sayed says AIPAC is bad news. Stevens responds that he is attacking "Jewish Americans." I put it to you Greg, I will not stand here and listen to you badmouth ... . Ecchhh.

As most readers have likely heard by now, El-Sayed won that primary, despite the forces that opposed him. But it is important to note that those who fought against his nomination were not merely AIPAC but essentially the entire establishment of the Michigan and national Democratic Parties. Chuck Schumer, Hakeem Jefferies, and James Clyburn (and Michigan Governor Jennifer Whitmer and Senator Gary Peters) energetically supported Stevens. More importantly, they continued to do so even after she issued that unbelievably sleazy tweet! So far as I know, she did not pay any price, and the people backing her did not bat an eye.

Was that primary hard-hitting? Sure. But one notable difference arose when some of El-Sayed's supporters started to mock Stevens's exaggerated "down home" Midwestern accent. As it happens, I grew up just across the Michigan border in Ohio and went to law school at the University of Michigan, and I am here to say that Stevens was clearly cranking up the folksiness. People who have lived around this part of the country know authenticity, and that was not it. Even so, El-Sayed asked his supporters to knock off the mockery, a gesture that was similar (in kind, though not degree) to John McCain's famous (if a bit inadequate) 2008 rebuke of a supporter who said that she did not trust Barack Obama because he was "an Arab."

Why does Stevens's attack on El-Sayed bother me so much -- beyond its noxious dishonesty, that is? Writing in The Contrarian last month, Jennifer Rubin noted that internecine battles in primaries are inevitable but must not get out of hand such that they hamper the ultimate nominee in the general election. She was writing about the 2028 presidential election, but the idea applies to Michigan 2026 as well: "Above all, the greater pro-democracy coalition must remember that — whenever the nominee is chosen — past grievances must be put aside. Our democracy’s future depends upon it." Stevens handed the Republicans a ready-made smear to use against El-Sayed, one that would not be as powerful if it merely came from the Republicans' in-house smear factory. Stevens had no business doing that, because even though "grievances must be put aside," some attacks do damage beyond the primary.

This is hardly a new phenomenon among establishment Democrats. During the 2020 Democratic primaries, for example, I was incensed that Pete Buttigieg attacked one of his fellow Democrats on health care policy by amplifying a Republican talking point about taxes, even though he could have made his point without feeding the other side's agenda. And the "blame all of your problems on Jewish Americans" distortion leveled against El-Sayed is so, so, SO much worse.

Suffice it to say, then, that I was unhappy that Stevens attacked her opponent in that way, and it was shocking but not surprising that the party's so-called moderates let it pass. Even setting aside what I take to be a defining moment in that campaign, however, the larger story is about the people who predictably attacked yet another exciting, progressive candidate. Rubin's piece in The Contrarian yesterday included this welcome assessment:

An El-Sayed victory also would be another reminder that Senate Minority Leader Chuck Schumer (D-NY) is remarkably inept when it comes to evaluating the campaign skills and the public appeal of candidates. A Stevens loss (in the wake of Maine Gov. Janet Mills’s spectacular failure to knock off Graham Platner during the primary) would no doubt add momentum to those calling for a Senate leadership makeover.

Indeed. I ended my Dorf on Law column earlier this week by reminding readers that

Chuck Schumer ma[de] up a fictional couple that he "consults" about policy, but he has imbued his creations with Reaganite views and says that they voted for Trump.
... Democrats in general are much too quick to say that anyone with a non-defensive-crouch policy agenda is UNELECTABLE. I will have much more to say about that in my column on Thursday.

So let us take up that discussion about electability here. Rubin, in her column yesterday, went on to argue correctly that "'electability' in today’s politics may turn out to be something more than ideological inoffensiveness." Inoffensiveness? She is right that Schumer et al. think about electability in that way, but what they are willing to support is itself ideologically offensive, as I will explain in Part 2 ~~tomorrow~~ next week. They are, in fact, quite happy to offend people. Which people? The ones that Schumer's crowd fears will take "their" party away from its rightful owners.

Even though those party leaders have a terrible track record and habitually slam anyone to their left, it is nonetheless important to engage with the question of whether their preferred candidates would indeed be less likely to lose in the general election. Because I am a progressive, I want candidates I support to have a good answer to the electability attack.

Unfortunately, they do not always deliver. For example, in a friendly interview on Zeteo, Mehdi Hasan asked Francesca Hong, the progressive candidate for Governor of Wisconsin, about electability, and she offered this weak tea: "The person who wins the most votes is the most electable." When she then tried to blather on about her campaign's events, Hasan had the good sense to cut her off and re-ask the question. Her second stab at an answer was only slightly better, saying that her Trumpist opponent is so bad that anyone could win against him: Beating such an extreme right candidate, she said, "isn't a matter of if. It's a matter of how much."

With respect, that is not good enough. And the sad thing is that there is an evidence-based answer that is more than good enough, an answer that moreover is anything but a heavily guarded insider secret: motivating the base. Hong could have said that the difference between going with the "safe" and supposedly inoffensive candidate reliably kills enthusiasm among Democratic voters, while trying to appeal to supposedly moderate voters by not being progressive does not make up the difference.

That argument is obviously based on an empirical prediction. Is it defensible? Do the data support it? New York Times columnist Thomas B. Edsall (who could never be accused of being a shill for the left) asked that very question in "Is It Really True That Socialism Is a Threat to the Democrats?" earlier this week. Although Edsall gives far too much oxygen in the piece to establishment talking points, he was at least skeptical enough to keep asking questions in an effort to separate cant from honest analysis. After a long "one side says this, the other says that" buildup, he brought it home with something extremely important:

Adam Bonica, a political scientist at Stanford, is a leading skeptic of claims that left-wing candidates can significantly undermine Democratic prospects. He wrote by email: “Who wins these primaries matters much less for November than either side of the debate assumes. Control of Congress will be decided by the national environment and the lean of each seat. The electability argument is being fought over effects an order of magnitude smaller than what actually decides majorities.
“Wave elections are made by turnout swings and economic conditions, and those swings are largely set nationally, not by who the nominee is in any given district or state.”
Bonica acknowledged that he and two colleagues have found “0.5 to 1.0 points for nominating a moderate over a progressive. The effect is there.” But, he added, “it is also far too small to carry the argument being built on top of it.”
Bonica cited separate research showing “that nominating a progressive increases Democratic turnout by about 1 percentage point. A more progressive nominee does cost you some swing votes, and it does buy you some turnout. But both effects are small, they point in opposite directions, and on net they seem to cancel.”
Put another way, Bonica wrote, “centrists touting their electability are advertising a 1 percent interest rate on a savings account that charges a 1 percent annual fee.”

Honestly, I would have thought that the numbers would not have been a wash, but Bonica's data-driven response certainly makes the point that all of this crazy talk about progressives being a drag on other Democrats -- both in individual races and by tainting establishment Democrats with what is apparently supposed to be their progressive stink -- does not reflect the real world.

I wrote the headline to this column ("Now We'll See Whether the Democratic Establishment Truly Cares About Democracy") after it became clear that El-Sayed was going to win his primary in Michigan. The party leaders who supported his opponent and then looked the other way when she libeled El-Sayed have, so far, made the right noises about uniting to hold that Senate seat. As I will explain in Part 2 of this column ~~tomorrow~~ next week, however, there are reasons to worry about their sincerity.

- Neil H. Buchanan

Precedent and Personnel: When the Justices Change so Does the Constitution

2026-08-05T07:45:06.318-04:00

Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close.

The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences.

This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. It is a story not taught in most constitutional law classes or discussed at legal conferences. But it should be.

On February 25, 1862, Congress passed the Legal Tender Act, which made paper money legal tender to pay private debts. Prior to that law, gold and silver were used for this purpose. The dramatic change was strongly supported by Secretary of the Treasury Salmon Chase because of the North’s desperate financial situation. The North had to pay for the Civil War, and the government was almost out of money.

After the government printed paper money, debtors could pay pre-existing obligations with these new “greenbacks” instead of gold or silver, which helped debtors but harmed creditors as the paper money’s value depreciated. As years passed, more greenbacks were printed by the federal government to wage the Civil War. By the time the constitutionality of the Legal Tender Act reached the Supreme Court in 1870, Samuel Chase was now the Chief Justice. He probably should have recused himself from deciding on the validity of a law he worked so hard to pass but he did not take himself off the case. The justices' questionable ethics practices are not a new problem.

Although it might seem obvious today that Congress has the power to make paper money legal tender, the issue sharply divided the country at the time.

The Court’s first decision on the question held that Congress acted unconstitutionally. By a four-to-three vote in Hepburn v. Griswold, the Court, in an opinion ironically authored by Chief Justice Chase, held that Congress did not have the power to make paper money legal tender for debts existing prior to 1862, the year the law was passed. The majority held that there was no express provision in the Constitution authorizing Congress to make paper money legal tender (the Constitution only mentions “coin”). Moreover, because many of Congress’s enumerated powers involve money, the justices said that it would prove too much to say that Congress had the implied power to make paper money legal tender. The Court also found that the Act was inconsistent with the “spirit” of the Constitution in that it interfered with pre-existing contracts. The dissenting Justices disagreed vehemently with just about every aspect of the decision.

The Court handed down Hepburn on February 7, 1870. That day there happened to be two vacancies on the Court. Almost a year earlier, the Republican Congress had increased the size of the Supreme Court to nine (Congress had altered the number of justices several times for partisan reasons prior to settling on nine). President Grant nominated two new Justices on the very same day that Hepburn was announced (it appears the Administration was told of the result prior to its publication. Leaks are not new either). It is likely the timing was not coincidental.

Eventually, William Strong and Joseph Bradley were confirmed, giving the Republicans a majority on the Court. It was widely known that Grant would only nominate men who would affirm the Legal Tender Act. Opposition to the Hepburn decision was likely a litmus test for any nominee, just as opposition to abortion rights was a litmus test for President Trump.

Before discussing what happened next, it is necessary to pause and consider the importance of the Hepburn decision. A legal commentator writing in 1929 said that the Hepburn case was “argued and reargued by numerous and distinguished counsel. It is probable that never in the history of the Court has any question been more thoroughly considered before decision.” The case was not only important for its specific result, but it was a major statement on the limited powers of Congress. Much of the Court’s rationale was inconsistent with Chief Justice John Marshall’s pro-congressional reasoning in his landmark opinion in McCulloch v. Maryland.

The result in Hepburn was short lived. Just over one year later, the two newly confirmed Republican justices joined the three dissenters in Hepburn and reversed the decision in Knox v. Lee. The majority relied on the government's need to raise money to fight the war and on a much broader view of Congress’s implied powers. Those were the same arguments that were expressly rejected by the justices only fifteen months earlier. The Court reversed itself on one of the most important and hotly debated questions it ever had to decide for no other reason than the people on the Court changed.

The commentators who favored the first decision did not hide their contempt for its reversal. The New York World newspaper said the following: "The decision provokes the indignant contempt of thinking men. It is generally regarded, not as the solemn adjudication of an upright and impartial tribunal, but as a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his intentions." Of course, similar language was used by many critics of the Dobbs decision, which overturned Roe v. Wade.

This disregard of precedent by the Court has continued ever since in numerous areas of constitutional law, which often changes solely because the people on the Court change. That pattern is obviously true today but was also true in 1871, when the Court overturned one of the most important decisions in American history after only one year simply because the justices changed. As I’ve said many times on this blog, stealing from Richard Posner, if changing judges changes law, do we even know what law is?

When it comes to the Supreme Court, that thorny jurisprudential thicket is not a 21st-century problem but an old one built into the institution by its structure and traditions. Without due respect for precedent, the justices are essentially free to change the law whenever a majority desires to do so. It is one of many reasons that the Supreme Court of the United States does not act like a real court, and its justices do not act like real judges. It is well past time that the American people understand that reality, as the Legal Tender Cases starkly revealed so long ago.

--Eric Segall

When Constitutional Amendments Change Background Assumptions: 22nd Amendment Edition

2026-08-04T07:00:00.000-04:00

As I noted here on the blog last week, I'll be spending the day tomorrow with lawyers, a judge, a journalist, and several other law professors discussing the most recent Supreme Court Term at the Practicing Law Institute's annual Review. One of the cases that will undoubtedly receive a great deal of attention is Trump v. Slaughter, in which the Court invalidated good-cause removal protection for members of the Federal Trade Commission and, by clear implication, nearly every other independent federal agency. When Slaughter was decided, I wrote a highly critical analysis of the opinion. I stand by my analysis but in today's essay I want to consider another ground for criticizing the ruling that was offered last week by my former colleague, Columbia Law Professor Jeffrey Gordon. In an essay last week on Balkinization, Professor Gordon argues that Slaughter is wrong in light of the 22nd Amendment.

Readers will recall that the 22nd Amendment is the one that Donald Trump keeps threatening to violate by running for a third term. It is also relevant to the president's removal power, Professor Gordon argues, for two reasons.

First, Slaughter and related cases that invoke the unitary executive theory rest on the claim that the president must be able to supervise and thus fire agency heads because the president is politically accountable in ways that agency heads are not. However, even if that was true before the 22nd Amendment, it is not true during a second-term president's second term. Thus, the 22nd Amendment changed a vital assumption that underwrites (or if you believe the Slaughter majority's history lesson, underwrote for the framers) the notion that making agency heads serve at the pleasure of the president enhances democratic accountability.

Second and more broadly, Professor Gordon explains that the 22nd Amendment was proposed and ratified during the heyday of independent agencies by people who saw independence from the president--especially one claiming a plebiscitary mandate in the way that FDR did--as a vital check on executive overreaching. Professor Gordon writes:

As put by one of the principal architects of the Twenty-Second Amendment, Rep. Earl C. Michener, chairman of the House Judiciary Committee, in the speech that introduced the operative resolution in the House: “Over a period of 12 years a President can secure a firm control over the enormous and powerful machinery of Federal administration, including the so-called independent agencies.” . . . The goal of the Twenty Second Amendment is to limit presidential power even as the scope of government expanded. Its immediate mechanism is term limits but those term limits are meant to gain force through interaction with pre-existing constraints on presidential power, including the protection of “for cause” removal for the commissioners of independent agencies.

To be sure, the text of the 22nd Amendment says nothing about the president's removal power, but, then, one must recall, neither does the rest of the Constitution, subject to one exception: officers may be removed by impeachment. Based on the text alone, one might think that the only means by which officers can be removed is impeachment and that therefore there are no limits on Congress's ability to provide good-cause protection against presidential removal. The Slaughter Court read the history of the early Republic as reflecting a contrary assumption by the framers and ratifiers that Article II's Vesting Clause and its Take Care Clause should be taken to limit good-cause removal protection. That reading of U.S. history is tendentious (as the Slaughter dissenters explained), but even if one accepts it, one can say that the 22nd Amendment changed the assumptions underlying how power is distributed.

A useful analogy might be the Court's 11th Amendment jurisprudence. There, the Court has held that the 11th Amendment did more than what its text literally says. Instead, in Hans v. Louisiana, the Court held that the 11th Amendment essentially adopted the view of the dissenters in Chisholm v. Georgia, adhering to what the Hans Court called the "spirit" of the Constitution. One can think, as I do, that Hans was wrong in light of how the text of the 11th Amendment parallels the text of Article III, without denying that a constitutional amendment can alter background assumptions even without expressly referring to them.

The Court has not always been attentive to such changes in background assumptions that constitutional amendments work. For example, in The Civil Rights Cases, the Court read the 14th Amendment narrowly, refusing to recognize that it reflected a dramatic shift in power from the states to the federal government. Professor Reva Siegel has argued that the Court might have located its sex equality jurisprudence in the 19th Amendment, which reflected shifts beyond the literal prohibition on sex-based restrictions of the franchise. Professor Akhil Amar once suggested that the Court's grant of full First Amendment protection to race-based hate speech neglected the possibility that at least some hate speech might be regulable as a badge or incident of slavery under the 13th Amendment.

I am not endorsing (or criticizing) any of these particular moves by jurists and scholars. What I am saying is that Professor Gordon's suggestion cannot be dismissed as pie-in-the-sky speculation by an academic. The notion that a constitutional provision can be transformative beyond its literal text is well established in both case law and scholarship.

I am thus persuaded by Professor Gordon's second point: even if we assume the Slaughter Court correctly interpreted the pre-22nd Amendment Constitution, it should have recognized that the Amendment rejected key assumptions on which that interpretation rested, rendering it incorrect as a reading of the current Constitution.

I am somewhat less persuaded by Professor Gordon's first point, however. Even before the 22nd Amendment, there was a longstanding norm according to which second-term presidents did not seek a third term. Professor Amar has noted three ambiguities concerning the scope of the norm: whether it barred all third terms or only consecutive terms; how to count partial terms; and whether the norm was defeasible for emergencies. But even recognizing these uncertainties, in the usual case, a president serving the second consecutive full term in normal times would have been unaccountable to the People long before the 22nd Amendment. In that sense, the 22nd Amendment didn't reflect much of a change in the Constitution as it existed from 1789 through 1941 (when FDR began his unprecedented third term).

Meanwhile, even setting aside the two-term norm, prior to the adoption of the 20th Amendment in 1933, every president who had either lost a bid for re-election or chosen not to run for another term was a lame duck for roughly four months: from Election Day in early November through March 4 of the following year. Even now, we have a lame duck period of two-and-a-half months, which can be the basis for considerable unaccountable mischief by an outgoing president. Thus, the 22nd Amendment did not create something entirely new in the form of a president who would not face the voters again.

However, these caveats do not provide a reason to reject Professor Gordon's first argument. Instead, I offer them as a friendly amendment. The argument as Professor Gordon frames it goes like this: Even if the pre-22nd Amendment Constitution made the president democratically accountable in the way the Slaughter Court presupposed, the post-22nd Amendment Constitution does not, and thus the Slaughter rule does not fit with the current Constitution. I would recast the argument this way: Under the two-term norm and given the long lame-duck period, the Constitution never made presidents nearly as democratically accountable to the People as the Slaughter Court presupposed, and thus the Slaughter rule was never justified, but it became even less justified after the 22nd Amendment converted the two-term norm into a rule.

Finally, I should emphasize that all of the foregoing is in addition to the other reasons the Slaughter dissenters and commentators (including me) have given to explain why the decision is wrong in principle and will likely lead to terrible consequences.

-- Michael C. Dorf

We Must Not Forget that Trump and Reagan Both Became President by Accident

2026-08-03T16:59:23.590-04:00

I should state up front that this column can be added to the "failing to remember history, doomed to repeat it" file. There is nothing new, of course, to the admonition that it is important to understand history. Although that is indeed an old point, it nonetheless needs to be repeated again and again, because too many people forget. And because history inescapably gets longer, while attempts to rewrite it -- especially in this era of pathological lying from the Oval Office -- are part of an ongoing disinformation campaign, the specifics matter.

As I will argue below, there is an alarming kind of retroactive triumphalism about Trump's 2016 and 2024 electoral outcomes that is disconnected from reality, a triumphalism that we can also see in contemporary commentary about Ronald Reagan. Those two accidental presidents are now treated as all but inevitable by people who have simply decided to impute their own spin on what "the American People" said with their votes in those elections. That is dangerous, especially in our current moment.

It has long been clear that people across the political spectrum and throughout the various media ecosystems are intent on changing the story of the 2024 US presidential election. Although I quite enjoy late-night comedian Seth Meyers's political satire, I am sad to report that he is still stuck on the idea that Donald Trump won for an affirmative reason, that is, because voters trusted Trump to improve the economy. In a Dorf on Law column this past December 19, I transcribed this bit from a Meyers "Closer Look" segment:

(6:34 mark): "Voters gave Donald Trump a second term because they were mad about the economy, and they were hoping he would fix it, despite the fact that last time he was in office, he broke it."

(7:01 mark): "The reason voters gave Trump another shot is because he made it clear he wouldn't just bring prices down, he would do it ASAP."

(15:33 mark): "So why is Trump calling the central issue of American political life -- the thing that got him elected, and the number one things voters say they care about -- a hoax?"

(16:41 mark): "Voters gave Trump a second term because they believed him when he said he'd bring down prices, and now every poll suggests they regret it."

As I put it at the time: "That is a lot of confidence in a story that exists in people's imaginations but not in reality." I am also sad to report that Meyers now offers some version of that misreading of 2024 on a regular basis -- so much so, in fact, that I simply no longer even bother taking note of when he goes back to that toxic well. As I have argued many times, I understand why well-meaning people like Meyers think that this is a useful trope, because they can now use it to point out that Trump "broke his promises to the voters." But that does not make it any less dangerous.

Indeed, this tendency to credit why "the American people voted for Trump" has the additional defect of making it seem that the 2024 election was somehow not a toss-up. "Americans were overwhelmingly unhappy about the economy," and Trump won, which apparently all but begs us to conclude that "Americans overwhelmingly voted to return Trump to the White House." In my December 19 column linked above, however, I ran through the numbers and showed that Trump's win was anything but "sweeping" or "decisive" or any such nonsense.

Not only did Trump barely squeak by -- performing marginally better than in 2020 and 2016, but still a nail-biter of an election that looked until the last minute as though it was going to go to Kamala Harris -- but the Democrats minimized their Senate losses on an impossibly challenging map, and then even picked up a seat in the House. Yet there are people to this very day screaming at each other about the Democratic Party's "autopsy" and wringing their hands about how badly they did in that election.

The 2024 election was achingly close. (I will go back to the 2016 election later in this column.) It would have been better if Trump had never become President again, but his win was most definitely not definitive. Even so, I almost lost my mind when I read a column last Fall by The Guardian's Marina Hyde, who is this generation's Maureen Dowd -- and no, I do not mean that in a good way (as if there is a good way to mean that). Hyde, who is based in the UK, was talking about Trump's attempt to sue the BBC, but hold on tight to see where she goes with it:

Were Trump to sue the BBC in our courts, the US president’s case against would presumably be based on the notion that he – a convicted felon found guilty on 34 counts of falsifying business records in a hush money case; a civil case loser found to have sexually abused a woman and been ordered to pay her $83m – had reputational damage done to him by the editing of a clip in a documentary that aired in another country, which no one noticed at the time, shortly before he won a landslide presidential election victory. Righto.

What? Is that what even snarkily anti-Trump commentators now believe? This kind of nonsense has seeped into the political discourse in a way that Trump and his enablers use to justify his depredations. He won big! Americans voted for all of this. Righto.

Trump benefited in 2024 from extreme sanewashing (note that my column in that hot link does quote a very good comment from Seth Meyers in that regard). More generally, Trump is getting a pass because of people's unwillingness to look at actual data to see who swung toward Trump from 2016 to 2020 to 2024. I will come back to that in a moment, but it is now time to talk about Ronald Reagan.

There is a generally good YouTube channel called "How Money Works" (HMW) that ran a co-produced piece earlier this year with the enticing title: "Why is One Man Always Blamed For Everything Wrong With America?" That one man is Reagan, and the 21-minute video comes with a thumbnail of a graph showing everything going wrong -- incarceration, wage stagnation (productivity contrasted with wages), inequality, and union membership -- starting just about when Reagan became President in January 1981.

The HMW video does have some virtues, although nothing stands out to make it worth watching. What is worth pulling apart is two elements of their story about Reagan: (1) How he became president, and (2) Why the economy improved during his two terms in office. The video's analyses of those questions are superficial at best, but the story is actually much worse than that, because it airbrushes and justifies Reagan in ways that echo today in how Trump is being given a freebie even by his critics.

(1) The HMW video explains Reagan's win in 1980 by saying that he was an engaging speaker and that he was able to deflect claims that his policies were anti-worker by pointing to his stint as head of the Screen Actors Guild in the years after WWII. That is pretty much their entire story: likable guy who could win an argument. But that too-cute story completely misses two fundamentally important aspects of that election.

First, there is no mention at all that the Republican establishment was all but soiling itself when Reagan become the presumptive nominee in the Spring and Summer of 1980. And they had good reason to panic, because Reagan was simply a joke. People in the party were so worried about it, in fact, that they tried to draft former President Gerald Ford for a rematch against President Jimmy Carter. Their fear was that Reagan was so unhinged, such an obvious lightweight, and such a loose cannon that he would drag down the entire party with him. Ford declined the effort, mostly because it was too late by that point to derail Reagan's nomination, but that does not change the fact that the real Reagan was anything but the retconned version: the smooth, broadly acceptable bloke that the HMW video (and, to be clear, nearly every political commentator in the country at this point, no matter their ideological views) imagines.

Second, there is the rather huge gap in failing to emphasize the enormous impact of the Iranian hostage crisis on the Carter reelection effort. In particular, there is no mention of the allegation that the Reagan camp secretly negotiated a deal with the new Iranian revolutionary government to prevent the hostages from being released before Election Day in November 1980. Congressional inquiries later concluded that there was insufficient evidence to conclude definitively that that had happened, but it is fair to say that evidence does exist, including statements from people who were there.

But even if that were no conspiracy, the failure to focus on perhaps the only time in history that a foreign policy crisis arguably changed a US election is a rather serious error. Again, conveniently skipping over that part of the history makes it seem that "the American people wanted" what Reagan was peddling, which quite clearly was not the case.

(2) The HMW video then explains the Reagan economy by making brief reference to his tax cuts and some spending policies, concluding that those policies were something like adrenaline, that is, something that can be good for a short time and in small doses but can be deadly if overused. The narrator intones: "He inherited a genuine crisis and applied genuine solutions. Those solutions worked in the short term, and that short-term success was real. But those short-term solutions became permanent policy, and permanent policy created structural damage that has compounded over four decades."

It is obvious, then, that HMW was not writing a puff piece about Reagan. The problem is that their economic analysis is simply wrong, and in a way that matters greatly. Specifically, we hear nothing about what was in fact happening in those years. Carter appointed a monetary policy hawk, Paul Volcker, to be Fed Chair, and Volcker inflicted extremely high interest rates on the economy that voters hated in 1980 (again, Reagan's win was not about his supposed likability). Volcker also engineered a recession early in Reagan's first term that was the worst downturn the US had suffered since the Great Depression. When Volcker changed monetary policy soon thereafter, Reagan received credit for the recovery.

What about Reagan's tax cuts and spending increases? Were they not the short-term boost that HMW's video claims? No, because the tax cuts were heavily loaded at the higher end (shock: Republican tax policy helps the rich) and thus had virtually no impact on short-term economic performance, while his spending increases were mostly for military equipment (the "600-ship Navy") that also is not economically stimulative.

The story that the video tells, however, is that Reagan was a widely respected, likable guy who swept into power on his own merits and then dealt effectively with a crisis. We now are to believe that Americans wanted Reagan and received a good economic outcome, at least in the first few years. That allows Republicans now to claim that their hero is an all-time great, whereas his track record simply does not support that claim.

To bring this back to Trump, I suggested above that the now-conventional story about his first Electoral College win follows this pattern. Contrary to reality, we now hear that "people were alienated by bad trade policy," or whatever, so they chose Trump. Even leaving aside his popular vote loss -- which one might think would count toward figuring out what "American voters wanted" -- how could anyone fail to mention Russia or James Comey's last-minute interventions in that election? Even if Robert Mueller was unwilling to claim that there was a winnable criminal case for collusion between Trump and Putin, there is no doubt that what Russia did -- with our without coordination with Trump's campaign -- had an enormous impact on the election.

Moreover, Trump's opponent that year was Hillary Clinton, who had been so beaten up by Republicans and the press for the previous quarter-century that large numbers of Democrats and independents said that they would stay home rather than vote for her -- because they thought that she was obviously going to win big, even without their vote, against an obvious buffoon like Trump. And as I pointed out shortly after that election, "the Democrats had picked up six House seats and two Senate seats in 2016—contradicting the nonstop Democrats-as-losers meme that has become all but required in 2017 news coverage."

As they had with Reagan in 1980, in 2016 Republicans were sure that their primary process had misfired badly and had saddled them with an indefensible candidate who would harm their party. Circumstances conspired to allow two men who were widely considered to be unelectable to become President. And as I noted above, in 2024 the return of Trump was as narrow as possible, and with the winner having negative coattails (again).

So, are those who cannot remember the past condemned to repeat it? Yes, but it is worse than that, because even the people who oppose the Reagan and Trump agendas not only cannot remember the past but continue to convince themselves that the past was something entirely different. This leads to crazy things like Chuck Schumer making up a fictional couple that he "consults" about policy, but he has imbued his creations with Reaganite views and says that they voted for Trump.

It also means that Democrats in general are much too quick to say that anyone with a non-defensive-crouch policy agenda is UNELECTABLE. I will have much more to say about that in my column on Thursday.

- Neil H. Buchanan

Fauci Fifth Follow-up

2026-07-31T07:00:00.000-04:00

Yesterday on this blog I discussed Dr. Anthony Fauci's invocation of his Fifth Amendment right against self-incrimination when testifying before the Senate Committee on Homeland Security and Governmental Affairs. I explained why it's not clear that Fauci had such a right, given: (1) that there is no privilege with respect to "anticipatory perjury"; (2) his pardon from President Biden on federal charges for pre-January 20, 2025 conduct; and (3) the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon.

In response, a number of readers pushed back on (3), pointing to the fact that almost immediately after Fauci's testimony, Florida Attorney General James Uthmeier took to X to announce: "Fauci's lack of candor to Congress is unbelievable. My office is launching an investigation into Dr. Fauci. It's past time we get the truth of what happened during COVID." To state the obvious, an investigation that was launched after Fauci took the Fifth before Congress and in apparent response to his doing so cannot have been the basis for Fauci fearing prosecution in Florida before he announced that he was taking the Fifth.

Still, my critical readers might have pointed to earlier indications that Fauci was under scrutiny by state prosecutors. In February of last year, 17 Republican Attorneys General announced that they were opening an investigation into what they called Fauci's false statements about the origins of the COVID-19 virus and alleged mismanagement of the government's response. Yet neither that statement nor any subsequent one referred to any specific state law crimes the red-state AGs suspected Fauci committed. And the thrust of the February 2025 statement--styled as a letter to House Speaker Mike Johnson and Senate Majority Leader John Thune--was an effort to spur Congress to investigate further and to share information. Among other things, the AGs accused Fauci of having given misleading testimony to Congress--which would be a crime if the statements were intentionally false and material, but a federal crime, not any state crime.

That is not to say that the sorts of conspiracy-theory-peddling characters who serve as Attorneys General in various red states could not find something with which to charge Fauci. I'm not an expert in the law of any of the states whose AG signed the February letter, and while I am extremely dubious that a good-faith investigation would find that Fauci violated any state laws as ordinarily understood, the AGs are not acting in good faith, and at least some of them would be likely to advance charges based on very novel legal theories.

But that conclusion is based on the miserable character and conduct of the AGs at issue, not on any announcements they have made. The case law in the Supreme Court and lower courts requires that a party invoking the privilege have a "real" and "substantial" fear of prosecution, although there need not be a pending indictment. Generally, an active investigation will suffice. Whether what the state AGs announced is an active investigation is not clear. It might well have been mere political grandstanding. Nonetheless, viewed in retrospect given the Florida AG's tweet on Wednesday, we can say that whatever the threat was, it has not grown stale since February 2025.

Upon reflection, I'm inclined to think that the February 2025 statement of the state AGs probably was enough to substantiate Fauci's fears. The Supreme Court has said that to discount a witness's fears of self-incrimination for Fifth Amendment purposes, it must be "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken" in apprehending a criminal prosecution risk and that the answers the witness would give to questions "cannot possibly have [a] tendency to incriminate." (Internal quotation marks omitted.)

Since February 2025, the state AGs who announced their investigation do not appear to have taken any further steps against Fauci, but they haven't gotten any less nakedly partisan, vindictive, or aggressive. Accordingly, my considered view is that Fauci probably was legally justified in invoking the privilege based on the fear of state prosecution. Even though Florida AG Uthmeier's tweet is not strictly relevant to the ex ante reasonableness of Fauci's fears before taking the Fifth, it does tend to vindicate his apprehensions based on the February 2025 statement (which his predecessor as Florida AG signed). Uthmeier thus inadvertently undercut Senator Paul's contempt case against Fauci.

Finally, AG Uthmeier is not the only Republican politician unwittingly undermining the prosecution/persecution of Dr. Fauci. Just over a year ago, Senator Paul himself sent a letter to then-AG Pam Bondi renewing previous requests that the DOJ open an investigation into Dr. Fauci for allegedly lying to Congress. In that letter, Paul questioned the validity of Fauci's pardon based on reporting that President Biden had used an autopen to sign it. If July 2025 Paul is right that Fauci's pardon is invalid, then July 2026 Paul is wrong in asserting that Fauci can't assert his Fifth Amendment privilege (even setting aside the fear of state prosecutions).

-- Michael C. Dorf

Was Dr. Fauci Entitled to Invoke the Fifth Amendment?

2026-07-30T06:30:00.000-04:00

In response to a subpoena, yesterday, Dr. Anthony Fauci appeared before the Senate Committee on Homeland Security and Governmental Affairs. Citing the fact that Senator Rand Paul is out to get him, Fauci invoked his Fifth Amendment right against self-incrimination. Fauci's characterization of Paul was not fanciful. Paul has said Fauci should be behind bars, and on the eve of Fauci's appearance before the committee, Paul released over 1,100 pages of Fauci's diaries from the latter's time in office. (The diary entries were found on computers in the Department of Health and Human Services and turned over by RFK Jr. to Paul, who chose to release them to the public.)

Hold on! Didn't President Biden give Fauci a pardon just before he left office? Indeed he did. So what was Fauci afraid of?

The most straightforward answer might be that between receiving his pardon in January 2025 and invoking his Fifth Amendment right on Wednesday, Fauci committed a crime he had reason to fear he would be asked to testify about. Let's imagine that Fauci is the thus-far-undiscovered mastermind of the Louvre heist and the godfather of a multinational art theft organization. If so, and if he had reason to fear that he would be questioned about his art theft masterminding, then he would have been plainly entitled to invoke his Fifth Amendment rights.

That doesn't seem very likely, though. In fact, we can be pretty confident that Fauci does not believe himself to be guilty of any post-pardon crimes. So what does he have to fear?

Here's another possibility: because the pardon applies only to federal crimes, perhaps Fauci fears that under aggressive questioning from Senate Republicans he would make statements that would tend to show him guilty of some state crime. However, that seems about as far-fetched as the supposition that Fauci is secretly a jewel theft mastermind.

One might think that Fauci is worried that he would say something that could be the basis for a perjury prosecution, but the Supreme Court has made clear that there "is no doctrine of 'anticipatory perjury.'" In other words, a witness cannot invoke the possibility that something he is about to say would subject him to a perjury prosecution for that very statement. A witness can invoke the fear of a prosecution for perjury only if the worry is that by testifying truthfully now, the witness will reveal that what he said in prior testimony was false and that he will thus be subject to a perjury prosecution for that past testimony. But that's not a possibility for Fauci because until yesterday, the last time he testified before Congress (or anywhere) was in 2024, and his pardon prevents a perjury prosecution for anything he said then.

Suppose that Fauci testified truthfully but in the course of his testimony he made an error or got confused so that he ended up saying something that contradicts either past testimony, something in his diaries, or something in his book or other public statements. And suppose further that Senator Paul then referred the matter to the Justice Department, which, acting in bad faith, brought a perjury prosecution. Fauci might eventually beat the rap, but his decision to testify truthfully but potentially mistakenly in one or another respect would have been a contributing factor to his prosecution. Should that be a sufficient basis for Fauci to invoke the Fifth?

Maybe, but to the best of my knowledge (after some legal research), it isn't--at least not yet. The lower federal courts are uniform in applying the Supreme Court's no-anticipatory-perjury rule without exception. However, I hasten to add that while no case accepts an argument for a bad-faith-prosecution exception to the no-anticipatory-perjury rule, neither does any case expressly reject such an argument. In other words, the federal courts have not squarely addressed a case like Fauci's, in which the witness reasonably fears that truthful testimony will result in a bad-faith perjury prosecution for that very testimony.

If I were to predict how the lower federal courts and Supreme Court would address such a case, I'd say they probably wouldn't fashion a bad-faith prosecution exception for two basic reasons. First, conservative jurists are unlikely to expand the scope of the privilege against self-incrimination. Second, conceptually, a bad-faith prosecution exception is an awkward fit with the privilege, which has been understood as a right to avoid making statements that tend to incriminate. A truthful statement that nonetheless leads to a bad-faith prosecution is not a statement that tends to incriminate.

And maybe that's the right answer. After all, as we have seen in the absurd prosecution against James Comey for his seashell Instagram post, the current administration doesn't need a perceived enemy or critic to testify under oath to manufacture a bad-faith prosecution against him. The privilege against self-incrimination is designed to protect against compelled incrimination, not bad-faith prosecution.

Thus, I conclude: (1) Dr. Fauci probably was not entitled to invoke the Fifth Amendment; (2) Senator Paul may therefore be able to successfully refer Fauci to the DOJ for a contempt prosecution, as he has said he hopes to do; (3) that's ironic, to say the least, because Fauci would have had a very good defense against a perjury prosecution if he had testified truthfully but was charged based on some minor inconsistency with past statements, but the contempt case will be easier for the government to prove.

Accordingly, I question the wisdom of the lawyers who advised Fauci to invoke his Fifth Amendment right against self-incrimination. They traded the risk of enduring bad-faith perjury charges that might not even have made it out of a grand jury and, if they did, would almost certainly result in an acquittal for the risk of facing much more solid contempt charges.

-- Michael C. Dorf

How Did a Very Weak Seventh Amendment Claim Make it to the Supreme Court?

2026-07-29T08:10:27.166-04:00

One week from today and for the 28th consecutive summer, I will participate in the Practicing Law Institute's 28th Annual Supreme Court Review. As in other years, I'll be on most of the panels during the day, sometimes commenting on cases others present and sometimes presenting cases myself. I've got some "big" cases to present but also one pretty small onet: FCC v. AT&T.

The end of the Term last month was a busy time for me. In addition to writing about the big cases for this blog, Verdict, and SCOTUSblog, I was hard at work on updates to my casebook. As a result, I didn't get around to reading FCC v. AT&T until yesterday. Although the outcome of the case is clearly correct given the Court's premises (as I'll explain momentarily), it is somewhat puzzling how the case even got to the Supreme Court. By the end of this short essay, I'll offer my best guess. But first, I'll discuss the merits.

To oversimplify somewhat, the Federal Communications Commission (FCC) conducted administrative proceedings against AT&T and Verizon for the companies' alleged improper handling of their subscribers' location data. They resulted in administrative findings and penalties of $57 million and $47 million, respectively. Under the governing statutes, at that point, the companies had a choice: (1) either pay the fines and go to a federal appeals court to contest the order under the standards of the Administrative Procedure Act (APA) in a case without a jury; or (2) do nothing and wait up to five years for the FCC to bring its own suit against the company in federal district court where there will be a trial de novo before a jury.

Both AT&T and Verizon paid their fines and went the APA appeals court route. There they argued that the scheme violates their Seventh Amendment rights to a jury trial. The Fifth Circuit (in the AT&T case) agreed, while the Second Circuit (in the Verizon case) disagreed. SCOTUS took the case to resolve the circuit split and, in an 8-1 opinion by Chief Justice Roberts, found that there was no Seventh Amendment violation.

If you were paying attention to what you just read, you're probably wondering how the case ended up in the Supreme Court at all. How did the Fifth Circuit reach a contrary decision? And why was the case not 9-0? After all, the companies chose to pay and appeal rather than to exercise their jury trial rights. It's as though a party waives jury trial and then complains that there was a Seventh Amendment violation because there was only a bench trial. Actually, it's not as though what I just wrote. It simply is that. And that is essentially what the Roberts majority opinion says.

To make sense of the existence of a dispute, let's start with the dissent by Justice Thomas. Under the influence of constitutional avoidance, he agrees with the majority that 47 U.S.C. § 504 entitles companies like AT&T and Verizon to challenge FCC penalties in a trial de novo at which they would have a jury trial. However, he says, at the time that the companies had to decide whether to challenge the FCC penalties under the APA or wait for the FCC to sue, some lower courts had held that, notwithstanding the text of § 504 ("any suit for the recovery of a forfeiture . . . shall be a trial de novo"), when the FCC sues to enforce a penalty, the courts would be required to defer to the agency in one way or another. And, he says, the FCC had sufficient discretion in deciding where to sue that it could have chosen a district court where trial de novo meant something less than a full do-over. Thus, he says, the companies didn't freely waive their right to de novo jury trial because, when they made the decision how to proceed, they were not assured that they had such a right.

The majority responds in a footnote that it need not consider Justice Thomas's objection by noting that the parties themselves did not raise it. That's fair enough, I suppose, but that then got me wondering how it is that the Fifth Circuit ruled for AT&T's Seventh Amendment claim. So I read the Fifth Circuit opinion (authored by Trump appointee Judge Kyle Duncan). Most of it is devoted to rejecting the FCC's efforts to distinguish the Supreme Court's opinion in SEC v. Jarkesy by arguing that there's no Seventh Amendment jury trial right in a case of this sort in the first place. Although I thought that Jarkesy was wrongly decided, I find the Fifth Circuit opinion reasonably persuasive in rejecting the distinctions the government offered.

But that's not to say that the Fifth Circuit opinion is persuasive overall. It isn't.

The government also argued in the Fifth Circuit, as it later did in the Supreme Court, that any Seventh Amendment defect in an APA challenge to the FCC assessment is cured by the party's ability to litigate in a trial de novo by simply awaiting government action. In rejecting that argument, the Fifth Circuit did not rely on the argument Justice Thomas offered. It did not say that trial de novo isn't really a trial de novo.

Rather, the Fifth Circuit said that the FCC's internal proceedings resulting in an assessment of a fine carry sufficient consequences that they violate the Seventh Amendment, regardless of what comes afterwards. The Fifth Circuit said that assessments "are not mere suggestions—to the contrary, they have real-world impacts on carriers," but the real-world consequences to which it pointed are hardly the stuff of Seventh Amendment rights. They include "reputational" damage to a carrier. Yet, as the Supreme Court majority pointed out, the initiation of proceedings and many other actions can have reputational consequences without triggering the Seventh Amendment right.

In the end, then FCC v. AT&T is less about the scope of the Seventh Amendment than it is about the competition among lower court judges to establish their extreme right-wing bona fides so that President Trump will nominate them to the Supreme Court should a vacancy soon occur.

Postscript Bonus: As a panelist at the PLI Supreme Court Review session next week, I am entitled to two free passes for guests. I'm happy to distribute mine to DoL readers who expect to be in NYC, have a day free, and need the CLE credits. If I receive multiple requests, I'll prioritize friends, former students, and lawyers over readers who don't fall into any of those categories. Otherwise, first-come/first-served. Email me (michaeldorf@cornell.edu) if you're interested.

-- Michael C. Dorf

Is It Safe for Professors to Go Back to Florida? (Spoiler Alert: No. No, it is not.)

2026-07-28T15:26:10.685-04:00

Earlier this month, a divided panel of the Eleventh Circuit surprised many people -- most definitely including me -- with a ruling that Florida-based journalist J.C. Bruce hailed in The Tropic Press with this headline: "A victory for the First Amendment: DeSantis' pet project--the Stop WOKE Act--is shredded." The Chronicle of Higher Education (CHE) offered a more muted headline: "Are 'Divisive Concepts' Laws on the Ropes?" Notwithstanding their different tones, both articles made it clear how important the Eleventh Circuit's ruling is.

The majority opinion was written by Trump appointee Britt Grant, and her language was colorful, to say the least. Bruce was obviously having a great time directly quoting the majority's handiwork, including these gems:

"Florida's salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State's own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth."
"[I]n this context the First Amendment trusts students to ﬁgure it out for themselves."
"The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind."
"Because the government pays the professors’ salaries, Florida says, their speech is the State’s speech. Emphatically no. The Florida defendants cannot 'put together half a donkey and half a camel, and then ride to victory on the synthetic hybrid'."
"Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them."

Longtime readers of Dorf on Law might recognize the "Stop WOKE Act" for a number of reasons. One of those reasons might be my repeated references to that law (e.g., here) as I explained why I had negotiated an early retirement deal from the University of Florida's law school only four years after I moved there as a chaired professor. The governor signed the law in 2022, and it went into effect on July 1 of that year. Even though then-Chief Judge Mark E. Walker of the federal Northern District of Florida blocked the law four and a half months later, calling it "positively dystopian," that did not stop the law from being an absolute bombshell.

Except in the most extraordinary circumstances, a bill's path to becoming a law takes months or even years to traverse, such that a law taking effect on July 1 will have been covered in the media and discussed long before its effective date. And because this particular ill-conceived law was such a key part of Florida Republicans' attack on their own university system, there was nothing secret about what was going on.

Unsurprisingly, faculty meetings in the 2021-22 academic year were dedicated to trying to determine how to respond to the governor's attempt to dictate what we taught. Administrators at the university level sent us "Guidance for teaching controversial topics" and created material with titles like "Teaching in the Era of 'Divisive Concepts.'" (Access to such resources is limited to the relevant university affiliates, of course, so even if I were inclined to share the content -- which I am not -- I would not be permitted to do so.)

Why was the law a big deal? As I explained in a Dorf on Law column in February of 2023 (early in my efforts to find an exit strategy from the Sunshine State):

[The] Stop WOKE Act," signed last year, ... treats as legal discrimination any training of students or employees that "espouses, promotes, advances, inculcates, or compels such student or employee to believe" any on a list of eight sloppy and vague categories of offense, for example:
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

Nothing vague or overbroad there, eh? As a grimly amusing aside, note that WOKE in that bill's title is a backronym for "Wrongs to Our Kids and Employees," so DeSantis et al. were purporting to stop kids and employees from being wronged by becoming uncomfortably aware of their country's history of racism and bigotry in general. As Bruce deadpanned in his Tropic Press piece: "[I]t bears remembering that Florida is a state that still celebrates 'heroes' of the Civil War—Robert E. Lee, Jefferson Davis, and Confederate soldiers," adding the amusing non sequitur "that, under former governor and now U.S. Sen. Rick Scott, [Florida] banned the use of the phrase 'climate change.'"

It ought to be amazing that even one Eleventh Circuit judge voted to keep that law alive, but we are well beyond the point where anything can amaze. In any event, Florida's insane attempt to "puppeteer[] every university professor in the state" is dead. Yes, it could be revived by an en banc ruling or by the US Supreme Court, but let us imagine for now that the current ruling will be undisturbed and that the Stop WOKE Act is thus not merely dead but really most sincerely dead.

If so, is it safe to go back in the pool? My exit agreement includes a no-backsies requirement, but if it were possible to return, would I feel comfortable attempting to return to Florida? Should other professors feel that the death of the Stop WOKE Act is an all-clear signal?

Obviously not. For one thing, even though the law was put on ice in November 2022, professors across the state were understandably complying in advance, not only with the law itself (which might have been reinstated any day) but in response to the obvious anti-reality chill coming from the state capitol. And of course reasonable professors would do that. As I put it in my February 2023 column:

If you were teaching in Florida right now, and you cared about your job security and had been accused of violating that provision, would you reply breezily that you never said that anyone "must" feel any of those things? Again, the anti-intellectual forces are not going to go after the conservatives in the Econ department or anywhere else. This is about owning the libs -- where "owning" in this case means "having the power to take away the financial security of."
Speaking of job security, one of the moves from the state's political leaders changes the rules in a way that retains tenure in name only. Final changes to the university's regulations appear to be ready to go (if, in fact, they are not already in force) that create post-tenure review procedures for all professors every five years. Again, this is not going to be wielded against professors randomly.

Those changes did indeed go into effect, which means that professors in Florida's public universities can have, at most, tenure in name only. That professors are working under five-year renewable contracts, with spot-checks possible at any time by administrators who have been put in place by hostile Republican politicians, means that there is no way to call Florida's professors free to teach about "divisive concepts." Again, being "divisive" means "saying something about the country's past that Florida's most powerful bigots would rather people not know."

How hostile are they? The CHE piece ended with this:

[T]he DeSantis administration sharply criticized Tuesday’s decision on social media.
"This is a clear and unfortunate example of judicial overreach," DeSantis said. "The Constitution does not block us from fighting back against these ideological fads and from ensuring that our institutions stand on a solid intellectual foundation."
James Uthmeier, Florida's attorney general and a DeSantis appointee, said the majority opinion effectively declares that "public-university professors have a First Amendment right to teach white supremacy and critical race theory, and the Legislature cannot pass laws that say otherwise."
"Totally incoherent and inconsistent with the intent of the First Amendment," he added. A spokesperson for Uthmeier declined to elaborate on the attorney general's legal reasoning.

If you were trying to hold onto your job in a state where the governor and AG are willing to spout that kind of nonsense, what would you do? More importantly, what would you not do?

More broadly, CHE also added this:

Keith E. Whittington, a professor at Yale Law School who studies constitutional law and academic freedom, ... cautioned against viewing [the decision] as a death knell for classroom-content restrictions. ...
"Academic-freedom advocates shouldn't be overly optimistic about what's going to happen in the next round of this kind of litigation."
Even if the Eleventh Circuit has concluded that state legislatures cannot directly dictate what professors may say in the classroom, Whittington said, university governing boards and presidents often retain broad authority to shape curriculum and academic policy. In other words: Administrative interventions like those unfolding in Texas may present different legal questions than statutes like Florida’s "Stop WOKE Act."

I will address the insanity in Texas another time, but suffice it to say that the politicians who are taking control of the minutiae of higher education in red states across the country are not shy.

To put it more directly, these Republican politicians are relentless, and they will be messing with their universities with every fiber of their beings for as long as they are in power. Even an excellent outcome like the Eleventh Circuit's decision merely removes one medium-sized warhead from their arsenal of weapons of mass educational destruction.

- Neil H. Buchanan