Dorf on Law

How Much More Dead is Democracy After the Supreme Court's Outrageous Gerrymandering Ruling?

2026-04-30T16:18:00.000-04:00

"US supreme court ‘demolishes’ Voting Rights Act, gutting provision that prevented racial discrimination." That is the headline atop The Guardian's news article reporting on the US Supreme Court's insane decision yesterday in Louisiana v. Callais, in which all six Republican-appointed jurists voted to make it possible for more Republican-run states to gerrymander even more Democrats (especially Black Democrats) out of the House of Representatives.

When I wrote my most recent column discussing gerrymandering two days ago, I had no idea that Callais was soon to be announced. Certainly, Professor Segall's column here yesterday was completely accurate in predicting the outcome of the case, but even his timing was pure coincidence. Here are his first three sentences:

Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA).

Can't nail it much better than that.

Meanwhile, when the decision came down, Professor Dorf posted this on Bluesky: "The fundamental untruth in Alito's majority opinion in Callais is the assumption that the state's political goals--protecting Republican incumbents & other R seats--have nothing to do with race, as though racially polarized voting does not reflect that the GOP appeals to & promotes white supremacy."

My analysis on Tuesday, meanwhile, was not focused on the Court at all. I did, however, predict the Roberts Gang's likely role in a column from February of this year, "What Would 'Nationalizing the Election' Look Like, and Could It Be Stopped?" which I cited in Tuesday's column. I wrote:

What about the Supreme Court? Even before Trump came along, the challenge to the Affordable Care Act that led to the NFIB v. Sebelius Supreme Court ruling exposed the opportunism of the Court's supposedly principled conservatives. ... Very cool-headed people at the time were predicting that the Court might reject that claim on a 7-2 or even 8-1 vote, based on what was then known about the Republican-appointed justices' purported views. But in the end, all five (including John "balls 'n' strikes" Roberts) invented a completely ahistorical, atheoretical, and atextual action/inaction distinction to reach the outcome that they wanted to reach.
So as far as the other branches of the federal government go, we can expect all opposition [to Trump's efforts to nullify or steal the midterms] to evaporate. ...
And the Court will do what it did in the Muslim ban case, the presidential immunity case, the racial profiling case (Noem v. Perdomo), the insurrection clause case, and on and on. Indeed, given their track record, it would not be beyond the Republican Six's collective imagination/chutzpah to declare that they should not rule on a case having to do with elections at all, because to do so would be to meddle in political questions. After all, even before the most recent Republican appointment to the Court, the other five conservatives announced that they were content to treat elections -- elections! -- as non-justiciable for being political questions. The illogic has always been stunning: Unelected judges must not intervene in issues that are left to the political branches, because those are the people's representatives, so we cannot think about intervening even when someone presents a claim that the system is not in fact representing the people. Those who hope that the Court's Republican bloc would stand in the way of their patrons' holding onto power are kidding themselves.

Any remaining doubts about this hyper-conservative Court majority have now been put to rest. Note, however, that nothing in my block quote above was addressed to anything like Callais, although I am honestly surprised that I did not think to include Shelby County -- Roberts's first big swing of the sledgehammer against voting rights thirteen years ago -- in my short list of this Court's horrible decisions. Fortunately, Professor Segall did not forget, noting yesterday that the majority ruling in that earlier case was "based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth."

I will leave it to my co-bloggers to critique the unconstitutional tap-dancing that has led us to the point where the Voting Rights Act is a dead letter. There is surely plenty to say on the jurisprudential side of things, but here I want to move back to my analysis of how gerrymandering will play out in the upcoming midterms.

In one of my columns in Review of Democracy last week, I wrote that efforts by state-level Democrats to fight gerrymanders with gerrymanders, even though some have been successful, are ultimately not going to save the day, "because gerrymandered Republican state legislative majorities control too many states." Although I allowed in Tuesday's column that I might have been "wrong to say that Republicans 'control too many states,'" Callais immediately put Republicans in red states back to work creating extra-super-duper-gerrymandered maps. It is too soon to say how many seats Republicans will swipe -- on top of their already-gerrymandered sliver of a majority -- but it could reach double digits.

For current purposes, I am willing once again to set aside all of the other ways that I think the Trumpists will make a mockery of the midterms (again, with the full backing of six Supreme Court votes), which allows me to explore in more detail the fact that even extreme gerrymanders are not always foolproof.

Imagine a state with ten congressional districts and one thousand voters, split 520-480 for Republicans. If the state legislature had previously packed-and-cracked its way to, say, eight Republican seats to two for Democrats, they might have drawn a map with a total of 200 Democrats and zero Republicans in those two blue seats, with the remaining eight districts each having 65 Republican voters and 35 Democratic voters. If they wanted to go to 9-1, they would have 58 Republicans and 42 Democrats in those nine districts.

But if they now want to go all in, they would have to create a new map in which every seat (or at least the median seat) is a 52-48 affair ex ante. And that is all based on recent voting patterns. What if Trump's disastrous policies and record-low approval among Americans turns off a bunch of those Republican voters? More to the point, it would not have to be "a bunch," with only three shifts per district enough to turn the state's caucus bright blue -- 30 votes out of 1000 would make it 10-0 for Democrats. Three percent.

Again, as Hungary's election a few weeks ago reminded us, and for that matter as the 2018 Democratic rout of Republicans during Trump's first term also showed -- House Democrats' overall vote margin then was 8.6 percent, and they picked up 41 seats -- even heavily gerrymandered districts are not as rock solid as we often believe them to be.

Moreover, it is not merely general voter dissatisfaction with everything Trump has done that should scare Republicans. As E.J. Dionne noted earlier this month, referring to Trump's drastic fall in the polls:

Especially damaging to Trump and his party was the sharp decline in support for the president among Latinos, with whom he made major inroads in the 2024 election. In The Economist/YouGov survey, his approval rating among Hispanics stood at 48% approve, 47% disapprove in March 2025; by March 2026, his ratings among Latinos had fallen to 31% approve, 60% disapprove.

Frequent readers of Dorf on Law probably know where I am going with this. In a series of columns this past November and December (here, here, and here), I pointed out that even many people I respect have bought into a narrative that says that "the economy" was the reason Trump won 49.8 percent of the popular vote in 2024 and retook the White House. My point in those columns was to show that the conventional wisdom does not explain the differences in voter demographics in that election. Specifically, the only group of voters that swung toward Trump in a meaningful way was Latinos, with Latino men being the big story -- a 20 percent swing from Biden in 2020 toward Trump in 2024, leading the Latino vote overall to swing by 14 points.

I am not saying that Dionne's overall argument is wrong, but I do want to point out that describing Latino voters as the group "with whom [Trump] made major inroads in the 2024 election" seriously flattens the analysis. The fact is that in 2026, there is no woman of color at the top of the Democrats' ticket, and as I noted in the first of my columns on this topic this past November, Fox News's Juan Williams wrote this after the 2024 election:

No, it wasn’t 'the Economy, stupid.' Speaking as a Black man born into a Spanish-speaking family, let me tell you what last week’s election was really about. It was about millions of men — many with my Latino immigrant background, some with my skin color — who don’t want any woman, especially a woman of color, in the White House.

As I wrote back then, I have no special expertise or personal experiences that would allow me to weigh in on Williams's thesis. I can say that I still have not seen anyone make any other case that actually fits the evidence. For that matter, no one seems even to have tried, because they all seem to want to talk about grocery prices or something "safe" rather than race and gender. But it is important at least to make the point that Dionne's "made major inroads" thing is pretty flimsy, because it describes as somehow enduring what might have been a truly one-off shift caused by anti-Harris voting.

And that, ladies and gentlemen, is in fact very good news. People like Dionne have been saying for months -- correctly -- that Trump's immigration policies should drive many demographic groups away from Republicans at the polls. Based on what I am describing here, that job could be even easier than it looks, because although people tend to stubbornly insist that they never made a bad decision, this is a very recent one-off experience.

This is not, in other words, anything close to the emergence in the 1980's of so-called Reagan Democrats, who were essentially Reaganites in waiting and became part of the reshuffling of American politics caused by the decline and ultimate defection of Dixiecrats, along with Ronald Reagan's aggressive use of racist tropes ("strapping young buck," "welfare queen," ad nauseam). That has truly been as close to a permanent partisan realignment as one could imagine in US politics. By contrast, the "Trump picked up some Latino voters" (while still losing among Latinos overall by eight points, by the way) could be a blip.

In the title of this column, I asked 'how much more dead" American democracy is as a result of the Court's shameful Callais decision. I suppose I can say that it is a bit deader, because that has to be true when the Court's Republicans hand potentially up to a dozen Democratic seats to Republicans. It gives Republicans the opportunity to keep their House majority with even fewer votes. Even so, not only could the additional gerrymanders that they are putting in place not pan out, but even existing safe-ish gerrymandered seats could end up being flipped after the Republican incumbents lose some fraction of their voters.

To be clear, there are many other ways in which the Court's anti-democracy rulings have been and will be disastrous for the country. This is the long con for Republicans finally reaching its payoff. And all of the ways in which their assaults on democracy give them control over levers of power that they will use to protect Trump (and themselves) from a drubbing in November are still at the ready.

Even so, because I almost never find silver linings, I am happy to have reason here to say that the House could still flip this Fall. At that point, we need to be prepared for the lawsuits, lockouts, and everything else that Trump will unleash to prevent himself from ever being held to account. But as a first step, winning the House is essential, and it is still not only possible but relatively easy to imagine. That is something, is it not?

- Neil H. Buchanan

Supremely Partisan: How the Conservative Justices are Destroying the Voting Rights Act to Further the Interests of the Republican Party

2026-04-29T07:00:00.004-04:00

Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA). That decision will will lead to the bizarre result that legislatures can cleverly use racial concerns to redistrict people of color in ways that violate the VRA but not allow judges to effectively provide a remedy for those violations-accomplishing the exact opposite of what the VRA actually requires. This is judicial aggression at its worst.

Section 2 of the VRA provides the following: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….” The facts and background of the Callais case are well summarized by the Brennan Center:

The Callais case arises from the redrawing of Louisiana’s congressional map after the 2020 census and subsequent litigation in two different federal district courts. Shortly after the Louisiana legislature adopted a new congressional map in 2021, Black voters and organizations filed lawsuits challenging the map. The suits contended that the map violated Section 2 of the Voting Rights Act because it diluted the votes of Black voters in central Louisiana. As a remedy, the plaintiffs asked the court to order the state to redraw the map to create a second Black-majority congressional district in affected areas.

The district court ruled in their favor....The Fifth Circuit Court of Appeals subsequently affirmed the ruling, and, in early 2024, the state legislature redrew the map to add a new Black-majority congressional district running between Shreveport and Baton Rouge. However, a group of white voters then challenged the redrawn map in a second federal lawsuit. Their suit contended that the configuration of the map’s new Black-majority congressional district was an unconstitutional racial gerrymander...Black plaintiffs from the original cases intervened in the new case.

After a trial, a three-judge panel ruled in favor of the white plaintiffs. Both Louisiana and Black voters from the original case then appealed to the Supreme Court, which first heard argument in the case in March 2025. However, rather than decide the case, the Court announced on the last day of its term that the Callais case would be held over for reargument in the fall. In conjunction with the reargument, the Court asked the parties to brief a different question: Whether creation of a majority-minority district as a remedy for vote dilution found by a court under Section 2 of the Voting Rights Act violates either the 14th or 15th Amendments.

The Court is almost certainly going to answer that question in the affirmative.

There will be time enough to explain the legal shortcomings of the inevitable destruction of the VRA by the conservative justices. The purpose of this post is to show what this new election law landscape will look like once the Supreme Court eviscerates the VRA and rewrites it to suit the justices’ partisan preferences.

The story begins with a series of cases in the 1990s in which the Court held that states violate the Constitution when the “predominant intent” of the legislature when drawing an election map involves racial considerations. The Court made no distinction between legislatures trying to address the harm caused by generations of racial discrimination in map drawing and legislatures trying to continue that harm by making it more difficult for minorities to elect their preferred candidates. The Court's failure to distinguish those two types of redistricting is the cause of much of the chaos and harm we see today in election law cases.

That line of cases also held that, despite the close correlation between race and partisan voting, legislatures could draw maps that help or hurt racial minorities as long as the motivation for doing so was not racial but to insure favored partisan results. In fainess to the conservatives on the Court, the first case to so hold was decided by four liberals and Justice O'Connor. But make no mistake, that decision was likely motivated by a reaction of the justices in the majority to the other justices' refusal to distinguish the legislative drawing of maps to address racial discrimination and the creation of maps to perpetuate racial discrimination.

Given that line of cases, which effectively insulates most allegations of racial redistricting from judicial review, it became even more important for the Court to police partisan redistricting in a meaningful way. Otherwise, legislatures could simply pack and crack minority voters in ways that are clearly race based but then defend that result (which violates Section 2 of the VRA) on the basis that making it more difficult for racial minorities to elect their own candidates was done for partisan, not racial reasons.

Unfortunately, in Rucho v. Common Cause, the conservative justices held that cases presenting challenges to maps drawn for partisan purposes present non-justiciable political questions. Thus, as long as a legislature can show that it drew its map for primarily partisan not racial reasons, there will be no viable way to challenge that map, and even if such a challenge is successful, Callais will likely forbid or greatly limit race-based remedies.

Of course, Callais will not be the first time that the Roberts Court guts the VRA for partisan purposes. In Shelby County v. Holder, the Court all but ended Section 5 of the VRA, which required states and counties with long histories of using racial discrimination in voting to preclear with either the Department of Justice or a three-judge court any election changes that hurt minority voters. The Court took that step based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth.

Red states after Callais will almost certainly use the expected decision to redistrict minority voters in ways that weaken their ability to elect the leaders they prefer. You might respond that blue states will do just the opposite to help elect more Democrats. But that assumes the Roberts Court will treat those two types of racial redistricting the same way in the future. That would be a very bad bet.

More importantly, the VRA was enacted and re-enacted many times to address a specific problem: the use of race by legislatures to hurt minority voters. There is no history in this country of legislatures voluntarily using race to help minority voters until the VRA required them to do so. And Congress had the authority to enact the VRA under Section 2 of the 15th Amendment, which gives Congress the power to enforce its ban on racial discrimination in voting through "appropriate legislation."

The VRA's work is nowhere near done, though some progress has been made. The Court is about to end all of that progress, however, and the result will greatly help the Republican Party. And that judicially mandated redistricting landscape will not be grounded in text, history, or tradition, but in the partisan political preferences of the conservative justices.

-- Eric Segall

Republicans' War on the Midterms: Gerrymandering Has Limits, Trump Does Not

2026-04-28T13:12:00.001-04:00

Will the Democrats win both houses of Congress in this year's midterm elections? Will they only win one? Will any wins be negated by Republican corruption? Will the midterms happen at all? People who oppose the Trump/Republican regime are becoming rather confident. I remain decidedly pessimistic.

As I noted in an abbreviated Dorf on Law column this past Thursday, the Review of Democracy (RevDem) "is the online journal of the CEU Democracy Institute (the non-university part of Central European University." Last week, RevDem published my two-part analysis of the many ways in which the Republicans could hold onto power this year, notwithstanding polling currently favoring Democrats. In "The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real," I made my only firm prediction, which is that Donald Trump will not outright cancel the elections. After all, he likes to call himself a winner, and his favorite dictatorial role models like to hold sham elections, so why miss out on all that?

The remainder of that first column described two key methods that Republicans are using to make sure that they "win" the midterms, which is to say that they would be able to point to vote counts that favor them, no matter how many people in fact oppose them. They do this, as always, by preventing people from registering to vote and then by stopping the remaining unwashed masses who somehow managed to navigate the registration process from actually voting. At one point, I offered this caustic observation: "Trump’s recent obsession with ending mail-in voting can be understood as part of this. After all, if citizens can vote without showing up at a polling place, how can neo-Nazis and Klansmen terrorize them into not voting?"

In "US Midterms: Will The Results Matter?" I moved on to the post-election landscape and described how gerrymandering prevents even legally cast votes from changing election outcomes, which is relatively familiar ground to which I will return below. Beyond that evergreen problem, I added that some Republican state legislatures are becoming more open about their contempt for democracy by trying to change the rules for state ballot initiatives, which is designed to prevent voters from overriding their unrepresentative legislative bodies. In a New York Times column that I cite in the piece, the President of Utah's Senate offered this revealing moment: "We live in a republic. We will not let initiatives driven by out-of-state money turn Utah into California."

So you see, it is all about the sanctity of listening to local voters, whom we trust to choose us. But obviously we cannot trust them so much that we think we can win without gerrymandering. And we certainly cannot trust them to be able to think for themselves in the face of out-of-staters throwing around big bucks. A republic, it seems, is a place where the voters are great, so long as Republicans can ignore them.

My second RevDem column also asks whether -- if somehow Democrats win the midterms under the crazy rules that Republicans have been putting in place -- a new Congress would even be recognized in the normal transition of power, to say nothing of whether Trump would ignore a Congress that was in Democrats' hands. I noted that his abuses of power thus far (including ignoring the courts) have occurred in situations where his political viability is not under existential threat. If he is barely tethered now, how much worse will things become if Democrats leap over all of the hurdles that stand between them and a return to power?

The hope among the people who believe in democracy (representative and otherwise) is that a big enough win by Democrats will make everything work out. Noting Hungarian voters' recent surprise ouster of the autocrat Viktor Orban, news sources are publishing articles with titles like "Orbán's defeat is a win for democracy and a warning to Trump, analysts say," and "Nine lessons for the US from Viktor Orbán’s defeat." The latter column includes this sub-headline: "As US elections approach, the Hungarian prime minister’s loss is a reminder that history does not march relentlessly toward autocracy."

Indeed it does not, but that is not a plan. We can be sure that the "warning to Trump" is being taken very seriously inside his bubble, which means that Orban's loss might end up making it more difficult to end Trump's reign, not easier. Trump, after all, does not know any other way to respond than to attack and dig in. On the weirder side of that default trait, we saw him respond to the incident at the White House Correspondents' dinner by somehow claiming it as proof that he should be allowed to build his ridiculous ballroom. Just as Republicans used to respond to any news by using it as an excuse for a tax cut -- not kidding: In the lead-up to the Iraq invasion in 2003, House Republican Majority Leader Tom DeLay said this: "Nothing is more important in the face of a war than cutting taxes." -- now every bit of news is taken as proof that Trump should always get his way.

More generally, the idea that Trump would take Hungary as some kind of cautionary tale, that is, as a reason to be more careful and do fewer things to enrage voters, is utterly fantastical. The lesson to be learned from that tale will instead be: "Don't be weak like that loser Viktor." I mean, the guy even conceded!

There is, however, an important aspect of gerrymandering that has received a lot of play among the anti-Trumpers in recent days. I wrote in my second RevDem column last week:

While California’s Democratic-led legislature has responded in kind, the numbers do not favor the Democrats nationwide, because gerrymandered Republican state legislative majorities control too many states. Therefore, a much bigger swing of voters against the Republicans would be needed to retake the House.

At the time that I was writing that column, Virginia's voters were in the process of approving a California-like initiative to allow the Democrats who dominate their state's politics to counter-gerrymander their congressional districts in a way that is likely to add four seats to the Democrats' column in November. Jennifer Rubin (former columnist for the now-demolished Washington Post op-ed page) argued on her "Contrarians" substack that this was proof that Democrats will have the upper hand. She ran through the numbers in the states and found that it is currently essentially a wash, which might suggest that I was wrong to say that Republicans "control too many states."

Rubin allowed that "Florida may try a belated re-redistricting," and indeed J.C. Bruce (a journalist who now runs an excellent one-man operation in the Sunshine State called "Tropic Press") reports today that Florida's outgoing governor "is slavishly obeying President Donald Trump’s call to rig the midterm elections in favor of Republicans so he won’t lose his G.O.P. majority in Congress." The state's congressional delegation went from 14-13 in favor of Republicans in the 2018 elections to 20-8 now (actually 20-7, due to a recent resignation), with the desperate governor's new map set to make it 24-4.

Rubin also correctly pointed out that "many Republicans are nervous that the scheme will backfire if Hispanics, as has been the case in primary voting, turn out heavily for Democrats, especially in the Miami area. In short, Republicans may well wind up losing ground." Similarly, the "Nine lessons ..." column linked above noted that "[o]nce it passes a ‘tipping point’, a thinner Republican majority can transform a formally safe seat into a contested one."

And that truly is a key point about gerrymandering. After "packing" as many Democrats as possible into a tiny number of safe seats for the minority party, the "crack" part of the "pack and crack" strategy is designed to give Republicans a bunch of districts in which, say, 45 percent of voters are Democrats who will never be able to elect a Democrat to Congress. That does indeed mean that a rather small shift of voters from the reliably Republican camp could flip some seats. In fact, that might be what happened to Orban, who saw his strongholds flip against him.

I suppose if gerrymandering were the only thing to worry about, this could be a reason for overall optimism. But this is also nothing new, in that it is always true that gerrymandering must be based on predictions that voting patterns will never change. The point is how much of a swing is necessary. Ten years ago, the estimates were that Democrats would need something close to a national 10-point win to oust Speaker Paul Ryan. (Remember Mr. FlimFlam?) They got that in 2018, and Nancy Pelosi became Speaker for two terms.

So yes, there is always a scenario in which an extreme enough swing can upend political verities, which is especially important in the context of Republicans' failure to fully nationalize the 2026 gerrymandering push. (Strangely, Indiana said no.) Optimism -- measured optimism, in any event -- is thus based on reality on this issue. This would take one of the weapons out of Republicans' armory this year, but unfortunately they have many others, and they are no longer afraid to go nuclear. (Just in case anyone has forgotten, the entire Republican Party has not only forgiven January 6 but now fully excuses it.)

Finally, and to be complete in analyzing midterm matters, I will point out that the dreams of a big Democratic sweep into power in the Senate are unrealistic at best, even if Republicans do not pull out all the stops. Democrats need to pick up four seats. Their open seat in Michigan is not a sure thing. Even if they hold that seat, they need to run the table on the seats that are even within shouting distance of competitive: Maine, Ohio, North Carolina, and Texas. Seriously? How many times will people believe that they can crack Texas? Senator Beto O'Rourke might have some things to tell us.

I do understand why people like Rubin have chosen to be optimistic. Both optimism and pessimism are contagious, and she is among those who want to encourage people to believe that positive outcomes are possible. That, however, is not my job. As always, pleasant surprises are possible. Hoping for them is still not a plan.

- Neil H. Buchanan

What's At Stake in Today's Geofence Oral Argument?

2026-04-27T07:00:00.000-04:00

Later today, the Supreme Court will hear oral argument in Chatrie v. United States. The case presents the question "whether the execution of the geofence warrant violated the Fourth Amendment." Wait. The execution of the warrant? The warrant? And what's a geofence?

The case is on cert from a Fourth Circuit en banc decision that my co-blogger Professor Matthew Tokson discussed and critiqued in July 2024. Here is how he introduced the case:

On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Unable to identify the robber, police served Google with a geofence warrant—a warrant targeting all cellphone users in a certain area at a certain time. They obtained information on several cellphones in the area of the bank at the time of the robbery, including the phone of Okello Chatrie, who was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutionally overbroad.

Chatrie lost in the Fourth Circuit. His cert petition presented two questions, but the Supreme Court granted review on only the first one, quoted above. Although petitioner's counsel wrote that question, it doesn't fully reflect the argument petitioner's merits brief makes. The brief argues first that the geofence warrant itself, and not merely its execution, was invalid because it was effectively the equivalent of a general warrant, given the number of mobile phone users it swept up. It is widely accepted that general warrants--those that did not target particular individuals for particular reasons--were a chief abuse that motivated the adoption of the Fourth Amendment in the first place.

In addition to arguing that the original geofence warrant was invalid, petitioner makes a number of other arguments about its execution. Even if the original warrant was valid, petitioner argues, the subsequent steps after the initial dragnet that allowed law enforcement eventually to zero in on him were themselves searches for which a warrant was required but not sought or obtained.

Before getting to any of that, however, petitioner addresses an argument made by the Fourth Circuit that no warrants were necessary at all because of the third-party doctrine. The core idea is that if you voluntarily disclose information to a private ("third") party, and that third party decides to hand the information over to the government, you have not been subject to government surveillance. If that strikes you as not merely a giant opening for the government to invade privacy but also wrong as a factual matter, you're not alone. Professor Sherry Colb raised that objection in numerous places, including this 2002 Stanford Law Review article. The petitioner argues that the third-party doctrine shouldn't apply to cell phone location data, citing, among other things, the Supreme Court's expression of concern about the scope of privacy at issue in Carpenter v. United States.

The petitioner's merits brief also argues that petitioner, not Google, owns the location data. That may seem like a strange point, but it is motivated by a turn in some recent cases towards reconceptualizing the Fourth Amendment as a protection for property, not privacy. Professor Colb also critiqued that move in various writings, including this 2004 article in the Michigan law review. That article was framed in substantial part as a response to positions that Professor Orin Kerr took in his scholarship. (Professor Kerr has filed an amicus brief on his own behalf in support of the government in Chatrie.) In addition to taking issue with the proper role of property in our understanding of the Fourth Amendment, Professor Colb also disagreed with Professor Kerr's suggestion that Congress, rather than the courts, should fashion protection against threats to privacy from new and fast-changing technology. Her position was not that Congress shouldn't do so but that the courts were needed nonetheless. The ensuing years of inaction by Congress strike me as vindicating her view.

The good news regarding Chatrie for privacy proponents is that the particular outcome of the case might not matter much. As Amy Howe notes in her SCOTUSblog preview, "Google now stores location data on mobile devices themselves, rather than in its own database." Thus, geofence warrants to Google will no longer yield a dragnet.

However, other companies are not necessarily so solicitous of privacy. When Google was collecting location data, it was doing so from all devices running Google apps. Thus, even if you didn't have an Android device, running Google for search, using Google Maps, or having Gmail on your phone meant that you were sharing your location data with Google. As Professor Tokson's 2024 essay explained, it was nearly impossible to opt out. It's progress that Google no longer collects such data, but other apps could be collecting it and sharing location data with the government, and even if not, some location data can be derived from mobile providers like Verizon and AT&T.

Chatrie holds potentially broader implications as well. The government's brief repeatedly states that the geofence and other data provided information only about the petitioner's "public movements." Among its other arguments, the government contends that a person who is out in public has no reasonable expectation of privacy in their location information because other members of the public can plainly see where they are. There is some reason to hope that the Court will reject this argument, which it already rejected in Carpenter. That case distinguished more primitive tracking methods of the sort upheld in United States v. Knox.

But there is also reason for concern. Chief Justice Roberts was the only one of the Court's current conservatives who was in the majority in Carpenter. Unless at least one of Justices Kavanaugh and Barrett (neither of whom was on the Court when Carpenter was decided) join with him in seeking to protect privacy in the digital age, the Court could decide Chatrie in a way that gives the green light for practices and technologies that ensure effectively constant surveillance of everyone. The Palantir-provided apps that ICE agents use to instantly identify and issue veiled or not-so-veiled threats against anyone who protests their activities speak to the scope of the threat.

That is not to deny that new technologies can enable federal, state, and local law enforcement to quickly identify and apprehend dangerous actors. Ideally, Congress would craft legislation that carefully balances the law enforcement gains against the privacy and other losses from each new technology. In reality, if the Supreme Court does not do so, no one will, and the result will be a surveillance state.

-- Michael C. Dorf

Updates: Column re Stealing/Ignoring the Midterms Delayed; New Dorf Column on Verdict Today

2026-04-24T15:45:00.003-04:00

To Dorf on Law’s readers:

Yesterday, I wrote that I planned to “return[] tomorrow with some additional thoughts” about the various ways in which Trumpists will try to abuse and mangle the US electoral system to stay in power. Due to unforeseen circumstances, I am unable to post that column today. I will return next week to belatedly deliver on my promise.

In the meantime, Professor Dorf published an excellent new column today on Verdict: “The Fifth Circuit Overrules the Supreme Court and Nullifies the Establishment Clause.” That column should get everyone’s weekends off to a thoughtful start.

- Neil H. Buchanan

Totalitarian Threats to US Democracy in the Shadow of the Hungarian Elections

2026-04-23T15:29:00.001-04:00

Yesterday and today, The Review of Democracy (or RevDem) published my new analysis of the Trump/Republican threats to rig or simply negate the results of the 2026 US midterm elections. Although I originally wrote it as one (long) op-ed, the editors sensibly broke it in two and published the parts under separate titles:

"The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real," and

"US Midterms: Will The Results Matter?"

My analysis in those op-eds expands upon my Dorf on Law column from two months ago, "What Would "Nationalizing the Election" Look Like, and Could It Be Stopped?"

Interestingly, RevDem is an especially important outlet right now, because it has been a key part of the opposition to Hungary's so-called "illiberal democracy." When I wrote my first op-ed for them last November, I noted in passing in a Dorf on Law column that RevDem "is the online journal of the CEU Democracy Institute (the non-university part of Central European University, which Hungarian dictator Viktor Orban drove out of Budapest several years ago)." It is thus gratifying to see my warnings about growing autocracy in the US published in that journal.

Orban's overwhelming defeat in the April 12 elections in Hungary is rightly being described as an important reminder that even locked-down autocracies can be vulnerable to the people's will.

I will have more to say about all of this, of course, but I am aware that people have limited free time, which means that it would be unrealistic to hope that they could read the RevDem op-eds and then read another full piece here. I will thus stop for now, returning tomorrow with some additional thoughts.

- Neil H. Buchanan

Trump's War on Bicycles Runs Into His War Against Iran

2026-04-22T07:00:00.000-04:00

In the 1988 film Who Framed Roger Rabbit?, the viewer eventually learns (spoiler alert!) that the villainous Judge Doom (played by Christopher Lloyd) is the sole owner of the Cloverleaf Corporation, which plans to destroy Toontown to build a freeway and decommission the city's effective public transit system. In the movie, Doom is thwarted. In the reality of 1940s Los Angeles on which the plot is based, car culture was born.

I don't know whether Donald Trump ever watched Roger Rabbit. If he did, I imagine that, when he wasn't leering at Jessica Rabbit, he was identifying with Doom. At least that is the inference one must draw based on the policies Trump's administration is pursuing.

Immediately after Sean Duffy was confirmed as Transportation Secretary in January 2025, his department issued a press release announcing the end to various efforts to combat or even measure climate change and decrying "woke" policies of the prior administration. Apparently, bike lanes and pedestrian trails are woke. In September of last year, the administration canceled funding for creating such lanes and trails around the country. Why? Because they are, according to the Department of Transportation, "hostile to motor vehicles." As in other contexts, so too here, every accusation is a confession.

I have been bicycling since I was three years old. I consider myself lucky to have been struck by a motor vehicle only once. (A pickup truck cut the corner on a turn and sideswiped me. I suffered mere road rash, although my front derailleur was damaged, so I had to bike to the shop without the use of all of my gears.) However, like just about anyone who cycles regularly, I have had close calls, often involving suddenly opening car doors. The close calls were much more frequent when I lived in New York City, given the density of cars. My experience is entirely typical. Thus, one of the main reasons for investing in bike lanes and closing motor vehicle access to certain urban thoroughfares is safety.

And it works. Thus, a recent government study found that the installation of bike lanes along part of 15th Street through the National Mall in Washington, D.C. "reduced all roadway crashes by 46 percent and bicycle injury crashes by 91 percent." It also eased automobile traffic. Win-win. So naturally, the Trump administration sought to eliminate the bike lanes and revert to the prior arrangement, with its greater dangers to cyclists and slower traffic for cars.

Yesterday, a federal district judge found that the administration's plan to eliminate the bike lanes was arbitrary and capricious. She thus granted summary judgment to plaintiff Washington Area Bicycle Association and blocked the elimination of the bike lanes. The core of the judge's reasoning is that the government failed to take account of any real data or to provide a remotely plausible justification for its decision. That strikes me as entirely correct because it is a matter of public record why the Trump administration opposes bike lanes: bicycles are woke and must get out of the way of manly cars.

Readers familiar with my penchant for occasional snark may think I'm joking, but I'm not. The policy of the Trump administration--across the Departments of Transportation, Energy, Interior (responsible for the Mall as a National Park), Defense, and everywhere else--is to promote gas-guzzling as against renewable energy, public transportation, bicycles, and just about anything associated with environmentalism, even if doing so undercuts public safety and even if it makes life worse for drivers of and passengers in automobiles.

The Trump administration does not appear to be pursuing these policies simply because it is in the pocket of big oil. Recall that U.S. oil company executives were not part of the decision to attack Venezuela and were not especially enthusiastic about being handed its oil fields. That is not in any way to deny that the most corrupt (and overall worst) president in American history has courted and received the support of fossil fuel interests. He plainly has. But his administration's zeal for petroleum-fueled internal combustion engines and hostility towards any kind of alternative reflects not just policy-for-payola. It is dogma.

Dogma eventually loses out in a contest with reality, however, and the reality is that, as even Trump's Energy Secretary recently admitted, retail gasoline prices will likely remain high into next year. (To be sure, he then recanted, but he appeared to do so only because his honest assessment angered the Blusterer in Chief.) Higher gas prices will have ripple effects, some of which are already occurring: greater reliance on public transportation and renewable energy, increased purchases of electric vehicles, and . . . wait for it . . . more bike-friendly transportation infrastructure.

Let me be clear. Trump's decision to make war on Iran and his repeated threats to attack civilians are immoral, illegal, and unconstitutional. They are already having disastrous consequences for countless people all over the world. I am not in any way saying that the war is beneficial because it has led to higher oil prices. What I am saying is that incentive effects of those higher oil prices will somewhat mitigate the cruelty and stupidity of Trump's domestic cars-at-all-costs policies.

-- Michael C. Dorf

The De-Platformer’s Dilemma—John Eastman Edition (Guest Post By 1L Milo Ratner)

2026-04-21T07:00:00.001-04:00

In a 2008 paper titled “Conspiracy Theories,” Cass R. Sunstein and Adrien Vermeule described the key dilemma involved in a government responding to a conspiracy theory. As they put it, “Ignoring the theory allows its proponents to draw ominous inferences from the government’s silence,” but “to rebut the theory may be to legitimate it.” This is fairly intuitive: if your belief is that the government is covering something up, any denial is just more proof to you of the coverup. Sunstein and Vermeule propose “cognitive infiltration” as a solution to this dilemma. Their idea is in many ways as dystopian as it sounds: the government would send in agents to the breeding grounds of conspiracy theories (in the modern day, perhaps 4Chan or Truth Social) where the agents would raise doubts and reveal logical holes in the freshly coalescing theories.

Sunstein and Vermeule were primarily concerned about conspiracy theories surrounding the September 11th terrorist attacks from 7 years prior. They cited studies suggesting that 16% of Americas believed there were bombs planted in the Twin Towers. Perhaps more concerningly, 78% of respondents in seven Muslim countries believed there was no Arab involvement in the attacks. Given 9/11 kicked off the “war on terror,” this statistic suggests that large portions of the invaded countries believed the invasion occurred entirely without provocation (inadequacy or misdirection of the provocation aside.) Sunstein and Vermeule argued that the closed and oppressive nature of the governments in the responding countries led to a justified distrust of official sources.

In November 2020, incumbent Donald J. Trump lost the election for President of the United States of America. In December 2020, John Eastman, former dean of Chapman University School of Law (later renamed after a large donation), wrote a memo where he suggested that then Vice President Mike Pence could simply choose not to count the votes in seven states that were disputed as fraudulent (including Arizona – this author’s home state), allowing Trump to be elected. In a legendary exhibition of legal ethics, Eastman then wrote:

“The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court.”

Pence refused. On January 6, 2021, Eastman spoke about his memo at the “Save America” rally. That same day, protestors outside the capitol building chanted “Hang Mike Pence!” A mob stormed the capitol.

On January 23, 2021, Eastman claimed on CNN that “antifa” was involved in organizing the rally. Eastman continued to claim the election was stolen and attempted to have states “de-certify” their results. Eastman has been disbarred by California and was indicted in two separate criminal cases. Eastman has claimed that the proceedings against him were again part of an election-stealing conspiracy, remarking to an interviewer:

“If they keep us tied up, spending our resources on defense against these things, then those are resources and time and talent that cannot be deployed in furthering elections for people who are sensible and want to get our country back on track.”

On April 16, 2026—one day after Eastman was disbarred by the California Supreme Court—the Cornell Law School student chapter of the Federalist Society hosted Eastman for a talk about “politicization of prosecution.” Eastman talked for an hour or so about what he described as “lawfare,” the use of the legal system to oppress political opposition. Shockingly, he made no mention of the current administration’s use of blatant political prosecution against, among others, Trump-elevated Federal Reserve Chair Jerome Powell. Eastman portrayed his role in the January 6 riot as simply “defending a client” but continued to assert that the election was stolen, citing voting numbers in Pennsylvania among other discredited theories. Eastman is not the first conspiracy theorist to speak to the Cornell Fed Soc chapter. In September last year, the organization hosted Geoff Shepard, whose talk was entitled “The Watergate Setup: Lawfare & The Plot Against the President” (no doubt an attempt to rehabilitate President Nixon’s image in light of Trump.)

Cornell University, and more specifically Cornell Law School, has been placed into a dilemma much like Sunstein and Vermeule described in 2008. Cornell has potentially legitimized Eastman’s conspiracy theories by providing them with a platform and associating them with an Ivy League name. Cornell, as a private organization, is not legally bound by the First Amendment (ignoring the ever-present threat of politically motivated funding freezes.) That said, Cornell has voluntarily made “free and open inquiry and expression . . . even of ideas some may consider wrong or offensive” one of its core values. But that does not mean that anybody and everybody receives an official invitation. No one would expect the astronomy department to host talks about young earth creationism.

Hard problems arise when student organizations issue invitations to the likes of Eastman (who holds offensive views on other issues beyond the 2020 election). Should Cornell have made an exception to its free-and-open-inquiry policy by excluding Eastman? Doing so would have risked feeding the prominent conservative theory of liberal censorship and indoctrination at our universities. It would also risk Cornell’s relationship with the highly-funded national Federalist Society (in 2024, Fed Soc spent $27.7 million, in contrast with $4.73 and $1.1 million from the American Constitution Society and National Lawyers Guild respectively.) Cornell’s ultimate obligation ought to be to its students’ education. An apparently-political decision to interfere with a student organization may undermine that goal. After all, hearing legitimate conservative academic thought, especially in a realm as subjective and politically charged as law, is a tangible and perspective-expanding benefit to students. Any curation by Cornell risks calling into question the institution’s impartiality. Although that ship may have sailed for the present, I have naïve hope for the future. Cornell ultimately ought not to act, even against dangerous and democracy-threatening conspiracy theories. A conspiracy theory like Eastman’s will only further itself with outside opposition.

Sunstein and Vermeule might be right: cognitive infiltration may be the solution to the theories and views promoted by Eastman and others (such as another recent guest of Cornell’s Fed Soc chapter, currently suspended University of Pennsylvania Law Professor Amy Wax). But cognitive infiltration where, and by whom? Any attempts by anyone on the left of the political spectrum to refute Eastman would surely be fruitless. A politically-charged debate of any kind would only encourage tribalism and picking sides: exactly the type of behavior that would lead an otherwise rational center-right conservative to be willing to adopt a conspiracy theory like Eastman’s. Instead, there has to be an internal reform. The national Federalist Society (which provides financial and logistical support for its favored speakers) and individual law school student chapters themselves must refuse to act as a conduit for conspiracy theories. And this in turn requires action by students.

Here, finally, is where it may be worth listening to a first-year law student who is surrounded by the petty politics of my peers. Reformation of Fed Soc away from conspiracy and into legitimate conservative legal scholarship and philosophy is not an unachievable task. At least judging by the membership of the Cornell chapter, the Federalist Society, like the Republican Party, contains a diverse group of people with a diverse set of views. Some view themselves as moderates who like to hear both sides; some are opportunists taking advantage of potential prestigious career benefits; and many are zealous advocates of conservative values (be they economic or religious). There’s only one thing all of them have in common: their identity as a member of the Federalist Society.

If that identity becomes synonymous with support for Donald Trump and his movement, then like the people in the majority-Muslim countries who preferred to believe that the United States blew up its own buildings and citizens than be associated with terrorism, Fed Soc students may, rather than reject their identity, embrace the absurd conspiracy theory that the current President continues to promote even despite his later election. But it doesn’t have to be part of that identity. The Federalist Society could bring speakers like Stephanos Bibas, Gregory Jacob, Liz Cheney, or other conservatives who have worked to preserve the legitimacy of our election system. If the students involved desire it, the Federalist Society could be among the most powerful democracy-preserving institutions in America. It’s up to them to reject conspiracy theories like those pedaled by Eastman.

-- Milo Ratner is a first-year JD student at Cornell Law School

The In-Your-Face Corruption and Arrogance of Justice Clarence Thomas

2026-04-20T07:00:00.003-04:00

An astonishing event occurred last week at the University of Texas. Justice Clarence Thomas gave a speech in which he accused progressives of betraying the core principles of the Declaration of Independence. He said that:

Progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever…. Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism, and all were opposed to the natural rights on which our Declaration was based. Many progressives expressed admiration for each of them shortly before their governments killed tens of millions of people.

Others have criticized Thomas's bizarre view of history, so I want to make a different point. The event was hosted and paid for by The University of Texas School of Civic Leadership, a part of the University funded at least in part “by billionaire Harlan Crow, who was integral to the founding of the Civitas Institute at the university.” In fact, Crow attended the event, and Thomas recognized and thanked him at the beginning of his speech. The event and Thomas's personal shout out to his friend and benefactor displayed an egregious indifference by Thomas to the many ethical lapses inherent in his relationship to Crow.

Crow subsidized the private school tuition of Clarence Thomas's adopted son, supplemented Ginny Thomas's income when she was working for far right wing organizations such as the Heritage Foundation, and financed the house that Thomas's mother lives in. Crow has also paid for too many to count luxury trips Thomas has taken both alone and with his wife. This financial enabling of a lifestyle that Thomas and his family cannot otherwise afford is not close to the same thing as providing an occasional gift. The largess creates reliance and economic interests that are inappropriate for any government official.

It is irrelevant whether or not Thomas would have voted differently without this extreme subsidization. The relevant standard for judges is the appearance of impropriety. Here we have actual, real life impropriety.

Moreover, Thomas once had to amend thirteen years’ worth of disclosure reports to include details of wife Virginia Thomas’s sources of income from Hillsdale College in Michigan, the Heritage Foundation, and the Republican leadership in the House of Representatives. What makes all this so much worse is that, according to Pro Publica, Thomas complained in 2000 to various well-heeled folks about the justices’ low salaries:

After almost a decade on the court, Thomas grew frustrated with his financial situation, according to friends. He had recently started raising his young grandnephew, and Thomas’ wife was soliciting advice on how to handle the new expenses. The month before, the justice had borrowed $267,000 from a friend to buy a high-end RV….

Thomas gave a speech at an off-the-record conservative conference. He found himself seated next to a Republican member of Congress on the flight home. The two men talked, and the lawmaker left the conversation worried that Thomas might resign.

Congress should give Supreme Court justices a pay raise, Thomas told him. If lawmakers didn’t act, ‘one or more justices will leave soon’ — maybe in the next year….

[Chief Justice] Rehnquist focused his annual year-end report [that year] on what he called ‘the most pressing issue facing the Judiciary: the need to increase judicial salaries.’

Crow’s subsidization of Justice Thomas’s lifestyle is an old story but two aspects of it must be emphasized. First, despite all the reporting about Thomas’s acceptance of Crow’s generosity, the justice did not think twice about attending an event at a Crow-funded organization and recognizing his friend publicly and warmly. This in-your-face insensitivity to the criticism Thomas has received for accepting Crow’s salary supplements displays a stunning arrogance and indifference to public perception. It is as if Thomas is broadcasting to the world that he will do what he wants no matter how questionable his behavior. It must be remembered that Thomas has never denied that he accepted, to say it again, money from Crow to help with his wife’s salary, his mother’s house, and his son’s tuition, among many other gifts.

The second point is even more important. Thomas is finishing his 35^th year on the Supreme Court. His former clerks now hold positions of power all over the federal government, most prominently in the federal judiciary, as well as in legal academia. According to the New York Times:

[S]ince Justice Thomas came through the fire of his confirmation hearings and onto the Supreme Court, he has assembled an army of influential acolytes unlike any other — a network of like-minded former clerks who have not only rallied to his defense but carried his idiosyncratic brand of conservative legal thinking out into the nation’s law schools, top law firms, the judiciary and the highest reaches of government.

One simply has to wonder how much of Thomas’s disregard for ethical behavior has rubbed off on these former clerks who now wield enormous power. These clerks include, among many others, the far-right Berkeley law professor and torture memo author John Yoo, disgraced lawyer John Eastman who played a key role in Trump’s election denial strategy (about which more on this blog tomorrow), Fox News Anchor Laura Ingraham, whose Trump bias needs no citation, and Fifth Circuit partisan GOP judge James Ho.

At the end of the day, this story is all about hubris. A Supreme Court justice simply should not be accepting these kinds of gifts. A Supreme Court justice should not violate disclosure laws for thirteen years. And a Supreme Court justice should be able to recognize all this and apologize for it instead of proudly and publicly showing off his primary benefactor.

By 2019, after years of salary supplements from Crow and others, Justice Thomas no longer complained about his low salary. According to Pro Publica:

By 2019, the justices’ pay hadn’t changed beyond keeping up with inflation. But Thomas’ views had apparently transformed from two decades before. That June, during a public appearance, Thomas was asked about salaries at the court. ‘Oh goodness, I think it’s plenty,’ Thomas responded. ‘My wife and I are doing fine. We don’t live extravagantly, but we are fine.’

A few weeks later, Thomas boarded Crow’s private jet to head to Indonesia. He and his wife were off on vacation, an island cruise on Crow’s 162-foot yacht.

And so it goes….

Eric Segall

Interchangeable Idiots and Sociopaths: Do Individuals Matter in Trump's World?

2026-04-17T16:29:00.001-04:00

I have spent a fair bit of time over the past year or so pondering a surprisingly difficult and recurring question: Does it matter which specific people work for the Trump regime, such that personnel changes could make a difference in what happens to people in the US and around the world?

Last month, for example, I opined that removing now-former DHS Secretary Kristi Noem would make no substantive difference to the horrors of Trump's ongoing anti-immigration atrocities. (To be clear, those atrocities are also being visited upon non-immigrant US citizens who are being racially profiled -- with the blessing of the Republican appointees to the US Supreme Court.) In that piece, I wrote that "the question here is what would change if Noem were no longer in office (via impeachment or any other means, such as being fired for some reason). The answer is nothing."

Over time, I have begun to think of this as a nearly universal rule of Trumpism: Nobody matters, because someone just as bad is always available to step in. I continue to believe that the only remaining exception to this rule is Robert F. Kennedy, Jr., because his reign at Health & Human Services could almost certainly not be replicated by anyone else. That is, RJK Jr. is uniquely dangerous because of his government position, a position that his broken mind abuses in ways that even other nutcases in his world would not come close to copying. That is quite different from, say, Stephen Miller or Russell Vought, who would have Trump's ear no matter what, even if they (like, for example, Steve Bannon) were no longer officially part of the Administration.

Pretty much any functionary could carry out whatever those guys tell Trump to get done, which means that their poisonous influence is not office-specific. And even though I argued last month that there were other reasons to hope for an impeachment effort against Noem (mostly as a matter of highlighting the terrible things that she was doing at Trump/Miller's behest), no one thinks that anything is substantively different under Noem's replacement, Markwayne Mullin.

Indeed, the story du jour of jaw-dropping gratuitous cruelty is ICE's arrest of an 85-year-old widow from France: "[I]mmigration agents arrested her in her nightgown at her late husband’s home[, and she] is now in a detention center hundreds of miles away in Louisiana, her own three children back in France unable to reach her and fearing for her health." Similarly, when a young woman (who is not a US citizen but who has lived here since she was an infant) married a US Army sergeant and showed up with her citizen husband at his base to move into their new home together, she was arrested. The New York Times reported:

In a statement, the Department of Homeland Security said that Ms. Ramos had been arrested “after she attempted to enter a military base.”
“She has no legal status to be in this country and was issued a final order of removal by a judge,” the statement read. “This administration is not going to ignore the rule of law.”

What kind of sociopath (and hypocrite) comes up with that one? As The Times reported, "[t]he couple checked in at the visitor center, identification in hand, ready to complete the steps that would allow her to move into his home on the base." Insinuating some kind of nefarious intent -- she "attempted to enter a military base" -- is exceptionally twisted, which means that whoever in DHS came up with that one might in some narrow sense be irreplaceable. Even so, the arrest and the cruel and unjust underlying policy behind it are baked into this administration's rancid stew. (She has been released, but only after having been forced to spend five days in a detention center. And Kilmar Abrego Garcia's experience shows us that the Trumpists never let these things go, so her story is almost certainly not over.)

Immigration is one of the signature sociopathic policy obsessions of the Trumpists. (Anti-trans bigotry is another.) But what about economic policy? Are those harmful decisions dependent on the specific people involved, or is that also on autopilot? Economics seems to fit more readily into the it-doesn't-matter-who's-officially-doing-it category, like immigration, rather than resembling RFK Jr.'s truly unique war on science, health, and medicine.

After all, Trump himself has shown that he cares about one specific policy almost as much as he cares about being the center of attention at all times, and that policy is to increase tariffs. He stubbornly refuses to believe that other countries have not been "ripping us off," that tariffs are almost entirely paid for by Americans, and that his attempts to use tariffs to punish other countries for sins such as refusing to allow him to take Greenland are creating volatility that is bad for the US economy. Why would any of that change if there were turnover in economic advisors?

In my Dorf on Law column yesterday, I mentioned in passing a recent comment by Trump's chief economist, Kevin Hassett, who went on TV and tried to argue that prices could come down: "Imagine that, if oil prices start going back down, because the situation resolves itself, somehow, that you could be looking at ... at inflation close to zero." Imagine! That is not what a serious person would say.

And Hassett is not a serious person. In a column last year, I poked fun at both Hassett and Trump's anti-China/pro-tariff zealot Peter Navarro, noting that both of them have pretty standard elite academic credentials (Ph.D.'s from Ivy League economics departments, some faculty appointments) but are also absolutely unhinged. Because both of them deserve a pile-on, I will note one more source of merriment for each half of that disastrous duo.

In February 2025, The Bulwark published a piece by Jonathan V. Last, "Meet Kevin Hassett: Conservatism’s Invincible Ignoramus," which included this nugget early on:

I want to tell you two stories about Hassett, one tiny and one large, to illustrate what a silly man he is.
The point isn’t to clown on Hassett—the world is full of silly people—but rather to demonstrate how bankrupt the conservative intellectual world has become. Because no system based on any kind of merit would elevate a man like Hassett to the ... heights he has reached.

The second of Last's two stories was about Hassett's co-authored book called Dow 36,000, which I described in detail in my column last April and again more briefly in yesterday's column. Last points out that the right-wing thinktank world shielded Hassett from criticism for that ridiculous book.

The first story, however, provides an even more important insight into Hassett's practiced stubbornness. Hassett once asked a very stupid question masquerading as contrarianism -- "Why don’t sophisticated money managers and operating companies invest in comic books?" -- and then simply refused to understand that he had made a fundamental economic error. Last described his attempt to engage in good faith with Hassett in direct conversation: "Your argument, I said to Hassett, amounted to: If you only pick stocks that go up, then stocks are a great investment. Hassett was unmoved. Utterly and completely. It wasn’t that he didn’t understand me; it was that he didn’t want to understand. Invincible ignorance."

Navarro had an even rougher go of it when The New Yorker in late December 2025 published Ian Parker's "Peter Navarro, Trump’s Ultimate Yes-Man: The tariff cheerleader established the template of sycophancy for Trump Administration officials." That piece ran to 27 printed pages, and it was a hoot -- at least for those who can ignore the damage that Navarro has wrought on the US political system, far beyond the tariff stuff. (Some readers might recognize Navarro for his so-called "Green Bay Sweep," which was supposed to keep Trump in the White House on January 6, 2021.) Parker's essay is one of those gems that offers quotable bit after quotable bit, each one somehow more head-slapping than the others. I will content myself with just one:

Navarro, long rejected and unelected, made no attempt to set professorial boundaries in his new advisory role. He threw himself into every campaign argument. Trump hadn’t hired a kooky, maverick academic who happened to agree with him on tariffs, as has often been suggested. Rather, he’d found someone with no compunctions about performing agreement. Navarro, in his ethnic scapegoating, quickness to anger, and difficulty with noncompliant women, may have been temperamentally aligned with the MAGA movement he was joining.

OK, two:

Long-term service to Trump requires both egomania and its opposite: self-annihilation. The man whom Navarro likes to call the Boss seems to value insincere, or bought, obeisance—the flapping and fussing of a maître d’—more than heartfelt fandom, which lacks the piquancy of humiliation. This work environment has clearly suited Navarro, whose sense of his own worth, though strong, seems to be divorced from allegiance to his own ideas, and who had long craved [large] audiences ... . He was ready to do whatever.

It is worth adding as well that Parker presents a very convincing case that Navarro's Ph.D. dissertation was the product of academic dishonesty, but that probably caught my attention simply because of my institutional and professional interests. But the larger point from Parker's piece is that Navarro is a former political independent whose prime motivating force has always seemed to be an aching sense that he is not as important as he is certain that he deserves to be.

Contrasting Navarro with Hassett is thus interesting, at least in the sense that Hassett has been an absolute right-wing hack from the get-go. (For details, see my piece from last April.) Hassett apparently likes being on the news -- so much so that he is willing to say things that would embarrass a less oblivious man -- but his long-term commitment has always been to the Republican Party. Hassett is the ultimate partisan and ideologue. Navarro is the ultimate dilettante and egomaniac.

Even so, that difference would not seem to matter when assessing the question at the heart of this column: Would either man's departure from the Trump Administration matter? It is true that Hassett might be more important than he seems to be, given that his title is "Director of the National Economic Council of the United States," which generally is not a power center, suggesting that somehow he has made himself less dispensable than others in his position would be. Similarly, Navarro's title -- "Senior Counselor for Trade and Manufacturing" -- is not usually high-profile.

Again, however, neither of these guys brings anything to his job that even remotely resembles unique or irreplaceable skills or innovative ideas. That we can tell entertaining stories about them makes them no different from Noem, former AG Pam Bondi, or the guy at FEMA who believes that he has been teleported multiple times.

Trump's world is a machine -- not a well-oiled machine by any means, but a perpetual motion machine nonetheless -- that will replicate itself as needed until and unless the US somehow pulls a Hungary. In the meantime, at least some of Trump's minions provide the world with inadvertent comic relief.

- Neil H. Buchanan

It Doesn't Matter That Nobody Understands Stock Market Swings (Even Though Stock Markets Matter)

2026-04-16T15:47:00.001-04:00

Two of the major US stock indices hit record highs yesterday (and are up again today, although markets are still open), even as the Iran war looks more and more like a quagmire and consumer sentiment is at an all-time low. How could that be happening? I will eventually get around to refusing to answer that question, but I will begin this column with a digression.

There are some truly terrible jobs out there. Some are shockingly dangerous, such as logging and roofing. Some are deeply unpleasant as an assault on the senses, such as sanitation workers and "professional armpit sniffers" for deodorant companies. Some are possibly even more unpleasant as an assault on one's sanity, such as staffers for politicians and late-night TV hosts who watch right-wing cranks on podcasts and cable news for a living.

That said, one of the most pointless, soul-deadening jobs that I can imagine is being the person who has to try to explain why stock markets went up or down on any particular day (or even over longer time frames). What is so awful about that job? It would be bad enough if it were merely repetitive, saying things like "the Fed cut rates, so stocks rallied," or "traders anticipated a bad inflation reading this month, so markets dropped," on an endless loop. What makes it ever so much worse, however, is that such people often find themselves saying that "the Fed cut rates, so stocks fell," or "traders anticipated a bad inflation reading this month, so markets rose."

As confusing as all of that is, it is possible to convince oneself that those are not contradictory statements, essentially because every day's price changes are over-determined. This allows anyone to claim that whereas, say, a Fed cut should normally be good news, it was different today because ... uh ... er ... because the markets had previously priced in the cut, so other bad news took center stage, or because a Fed cut now means a Fed increase sometime later, maybe?

In light of these imponderables, it is always worth going back to one of my favorite quotes from my favorite economist. John Maynard Keynes (the bête noire of the right for most of the last one hundred years) is perhaps most famous for saying "In the long run, we're all dead," or perhaps "When the facts change, I change my mind. What do you do, sir?" (The latter quote is possibly mis-attributed to Keynes). He also, however, once wrote that the movements of financial markets and other transactions "can only be taken as a result of animal spirits ... and not as the outcome of a weighted average of quantitative benefits multiplied by quantitative probabilities."

Keynes was an especially reliable observer in that regard, because he was an active speculator who had real success (along with some disastrous failures) managing the endowment of King's College, Cambridge University. If he says that humans make decisions based on instinct and uninformed overconfidence, I tend to believe him.

On the other hand, even though I have known all of this for my entire professional career, I do have some sort of predictive model in my mind that is on autopilot most of the time. When stocks plunged a year ago in the aftermath of Trump's ridiculous tariffs, that made sense. When stocks soon recovered and went on to set new records, however, that made no sense -- especially because the things that seem plausibly important to businesses had only become worse, most importantly the utter uncertainty of everything in the second Trump term.

When people talk about "market fundamentals," the idea is that stocks as claims on future profits of a company should be priced in light of those basic facts. If something happens to make a company's future seem more promising -- beating a lawsuit for fraud, say, or announcing a valuable patent -- share prices should rise. Things like price-to-earnings numbers are supposed to capture the fundamentals, but even if they did, the signal-to-noise ratio can be very low for a very long time.

In a column last April, I noted that one of Trump's most visible economists, Kevin Hassett, once co-authored a book that claimed to rely on such fundamentals to conclude that the Dow Jones Industrial average should have been three-and-a-half times higher than it was. They were very wrong.

Of course, Hassett continues to beclown himself on Trump's behalf, include saying these words out loud earlier this week (starting at the 4:32 mark of Stephen Colbert's monologue from last night) to explain what might reduce consumer prices: "Imagine that, if oil prices start going back down, because the situation resolves itself, somehow, that you could be looking at ... at inflation close to zero." Sure, why not? If things happen, then they will have happened. And some of those things might have caused prices to go up, so they might go down.

All of which is a fun digression that allows me to note a key distinction. Hassett's attempts in the past to explain what should happen to stock prices are not uniquely fatuous, but he continues to prove to be in a class of his own when it comes to uttering nonsensical gibberish in defense of Trump on all other topics.

As I noted above, I am fully committed to not answering the question of what could possibly explain the record high stock market this week (or any other time). As I conceded earlier, my gut-level auto-predictor did not see this coming. That, however, is the opposite of a surprise. It is all just guesswork. A friend sent me an email asking for my reaction to three possible explanations:

1) Perhaps it is related to the oddity that we talk about record highs in stock indices w/o adjusting for inflation. Energy prices are likely to stay high for a while, which means high inflation [note: or at least continued high prices, even if inflation levels off], which means that prices of stocks could go up while their [real] value stays flat or even declines.

2) Or perhaps it's one of those bad news is good news stories: IMF warns of a global recession; markets expect that means lower interest rates; lower interest rates make stocks more attractive; buy now.

3) People who play the markets are mostly right-wing ~~assholes~~ [stet] who don't realize what complete fuck-ups Trump and his team are, so they're just assuming that the war will blow over because that's what people in their circle believe.

Based on what I wrote earlier in this column, my answer here should surprised no one: "Yes. Possibly. To all three, or maybe only one or two of them. I think. But not with any amount of confidence."

Frustrated yet? What is especially unnerving about all of this is that stock prices matter in a very big way for a lot of people. Personally, my standard of living in retirement is (because most universities do not have traditional defined-benefit pensions) almost entirely dependent on the financial markets. And now that almost no jobs come with old-fashioned pensions, many other people are also indirectly invested in stocks through their defined-contribution plans (like 401(k)'s and IRA's). When Trump brags about the markets, he often tells people that they should be thanking him for how much money they have in those accounts. He is wrong to take credit, but it is true that market prices matter to tens of millions of people in a very real, bread-on-the-table kind of way.

What makes the current situation especially troubling, however, is that overall economic inequality in the US is even worse when it comes to stock ownership. Very, very few of us could get by in retirement without relying on Social Security and Medicare, and when US employment and wage growth are going in the wrong direction -- as both are under Trump -- that means that even fewer people can put money into stocks to benefit from future stock price increases. It also makes it more likely that reduced tax revenues will give Republicans an excuse to scream about deficits and thence to return to their fervent desire to end (or at least deeply cut) America's two most important and successful social insurance programs.

An economy with rising financial markets and falling real activity (like job creation and income growth) is an economy that is necessarily intensifying inequality. We therefore know that we want the economy overall to do well, even as we have no reason to want the markets to fall. Although there is an infuriatingly indescribable illogic to the movements of financial markets -- a fact that should remind us to stop trying to explain market swings -- this all comes down to the most basic of truisms: Broad-based prosperity, not Wall Street feeding frenzies, should be our goal. That might seem obvious, and it should be. Yet here we are.

Growing Wheat or Weed is Economic Activity, and so is Making Booze

2026-04-15T07:00:00.003-04:00

In 1868, Congress passed a law forbidding home distilleries. That law remains on the books today. It is codified as 26 U.S.C. § 5178(b). Last week, a unanimous 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the law is unconstitutional because it exceeds the powers granted to Congress. As I shall explain, in light of a key concession by the government, that holding is arguably correct. As I shall also explain, the concession was a blunder, and while the outcome of the case is defensible, much of the Fifth Circuit opinion is not.

Let's start with the statute's text. As relevant here, it provides: "No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house . . . ."

Although codified in Title 26, which is the Internal Revenue Code, and thus arguably an exercise of the power of Congress to impose taxes (about which more in a moment), the law is most readily sustainable as an exercise of the power of Congress to regulate interstate commerce. Hold on, you say: How is a home distillery used to make spirits that need not ever be sold commercially, much less sold interstate, a proper subject of regulation under the Commerce Clause? The answer to that question will be obvious to anyone who has gone to law school since October 1942, when the Supreme Court decided Wickard v. Filburn.

Farmer Filburn objected to a penalty imposed on him for growing more wheat than he was allotted under a quota pursuant to the Agricultural Adjustment Act of 1938. The mere growing of wheat on his farm, he said, was not in any way a form of interstate commerce. The Court didn't care. The more wheat an individual farmer grows, the more the farmer can sell (either directly or via the products of the animals to whom the wheat is fed); and even if the farmer sells none, growing and consuming wheat and products derived from it reduces market demand for wheat.

As with wheat, so with weed. In 2005, in Gonzales v. Raich, the Court rejected the contention that Congress cannot regulate home-grown and home-consumed marijuana pursuant to the Commerce Clause. As Justice Stevens put the point for the majority, the "production" of a commodity for which there is a market is regulable "economic activity" even if the particular objects of regulation do not end up in that market.

And as with wheat and weed, so with booze. Subject to some limits not relevant here that arise out of the 21st Amendment (repealing prohibition), Congress has the power to regulate the distilling of spirits. Just as it can require, per the Fair Labor Standards Act, that people who work in a distillery be paid fairly, and that per the Occupational Safety and Health Act, the working conditions in a distillery meet various safety and health standards, so it can regulate the site of production. All of that follows from the proposition that distilling spirits is regulable pursuant to the Commerce Clause.

Or at least I would have thought before I read the dubious district court opinion that the Fifth Circuit affirmed last week. There, Judge Pittman (a 2019 Trump appointee) held that for intrastate economic activity to be regulable under the Commerce Clause, it must: 1) substantially affect interstate commerce in the aggregate (citing Wickard); (2) serve a comprehensive statute that regulates commercial activity on its face (citing Raich); AND (3) be necessary to make that broader commercial regulation effective (again citing Raich).

But here's the thing. I put "AND" in all caps to emphasize that Judge Pittman made that bit up. There is no Supreme Court case (and, so far as I'm aware, no federal appeals court case either) that says that those three elements are all required in conjunction. Rather, prior cases suggest that they are to be connected by an "or." Because home-distilling of booze is unquestionably economic activity that, in the aggregate, affects interstate commerce, it is regulable by Congress. Full stop. The provision in question should have been upheld as a regulation of interstate commerce.

Yet inexplicably, the government chose not to appeal the Commerce Clause ruling. At first I thought perhaps the Trump Department of Justice chose not to appeal the Commerce Clause portion of Judge Pittman's ruling on ideological grounds. However, the appellate brief waiving the Commerce Clause as a basis for sustaining the law was filed during the Biden administration. And it plainly waived the argument, as the Fifth Circuit said. The appellate brief argued that the plaintiffs lacked standing and that, even if they had standing, the law should be sustained under Congress's power to lay and collect taxes. There was no appeal on the Commerce Clause. That was the blunder to which I referred above.

Accordingly, after concluding (rightly, in my view) that the plaintiffs have standing, the substantive portion of the Fifth Circuit's opinion concludes that the law cannot be sustained on the basis of the power to tax. Before explaining what I think is defensible and what is not in the Fifth Circuit decision on the merits, it's worth asking how, according to the government, the law implicates the taxing power.

The answer is fairly straightforward. When the law was enacted in 1868, it was relatively easy for distillers to evade the tax by hiding their activity. They did so by operating out of their homes rather than in large and obvious distilleries. By making it a crime to operate a home distillery, Congress increased the cost of doing so--which, in turn, made it easier for federal revenue officers to identify distilleries and collect the revenue due from them. This is a classic example of a law that is not itself an exercise of the relevant power (because a prohibition on home distilling is not a tax on home distilling) but that is necessary and proper to the power (because it facilitates the collection of taxes on distilling that occurs elsewhere).

Anybody who has read the broad language of McCulloch v. Maryland (1819) or, much more recently, United States v. Comstock (2010), will recognize the foregoing as a very standard necessary-and-proper argument. Creation of a national bank (in McCulloch) is not itself taxing, spending, or the regulation of interstate commerce, but it facilitates the exercise of all of those powers. Civilly confining a person who is mentally ill and dangerous (in Comstock) is not itself an exercise of the power to say, create a post office, but it is necessary and proper to that power as applied to someone who committed mail fraud and then, while serving a sentence in a federal prison, developed a mental illness that makes him dangerous, because civil commitment facilitates the initial imprisonment, which facilitates the criminalization of mail fraud, which facilitates the post office doing its job. The argument for validity under the Necessary & Proper Clause is much more direct with respect to the home distilling prohibition than with respect to the law upheld in Comstock. Thus, it follows a fortiori from Comstock that the home distilling prohibition is necessary and proper to the taxing power.

So why do I say that the Fifth Circuit decision is defensible? Because while running a home distillery was a means of evading taxation in 1868, it very likely is not today. Modern distilleries produce tens or even hundreds of thousands of barrels of spirits per year. Hidden untaxed output from basement or garage distilleries is thus inconsequential in its revenue impact. Or at least that argument strikes me as plausible, given what I know (which, admittedly, is essentially nothing) about distilling spirits.

Thus, if defensible, the Fifth Circuit ruling relies on a very modest version of living Constitutionalism of the kind acceptable even to most originalists. A law or practice can be constitutional when enacted and for some considerable period thereafter, given conditions at the time, but unconstitutional when conditions change. Thus, although the search-incident-to-arrest doctrine at one time allowed police to search any item found on a person, the Supreme Court carved out a new exception to that principle for mobile phones in Riley v. California, given the unprecedented ability to look into every aspect of a person's life occasioned by a mobile phone search.

Yet while the conclusion that the home distilling prohibition is no longer necessary and proper to the taxing power is defensible, the Fifth Circuit opinion says some other, quite dubious things that suggest it thinks the law was never necessary and proper. Among those dubious statements is its reliance on the Supreme Court's opinion in United States v. Dewitt (1869). There, the government sought to sustain a prohibition on selling one kind of oil as necessary and proper to collecting revenue on sales of other kinds of oils that were taxed. The idea was that forbidding the untaxed oil would increase demand for, and thus revenue derived from, the taxed oil. The Court rejected this argument but in so doing expressly distinguished the very home distillery ban at issue here:

we have been referred to provisions, supposed to be analogous, regulating the business of distilling liquors, . . . but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the very articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed; while, in the case before us, no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has any relation to taxation at all, it is merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the particular kind described.

Dewitt thus not only doesn't support the Fifth Circuit's conclusion; it supports the opposite conclusion. There are other problems with the Fifth Circuit's analysis but I won't dwell on them. I'm reserving most of my criticism here for the Department of Justice lawyers in the Biden/Garland era for waiving the Commerce Clause argument on appeal.

Finally, I should make clear that I take no position on the policy wisdom of the federal prohibition on home distilling. A tiny bit of Internet research reveals that there are some serious risks involved in the activity, including explosion, fire, and toxicity. Whether those risks justify prohibition or mere regulation, and whether that should be accomplished at the federal, state, or local level are questions about which I have no expertise or opinion, but, in any event, they were not at issue in the Fifth Circuit case.

--Michael C. Dorf

How Many Divisions Has The Pope?

2026-04-14T07:00:00.001-04:00

As Winston Churchill tells the story in volume 1 of his history of World War II, The Gathering Storm, in 1935 Stalin was asked by French Foreign Minister Pierre Laval whether he, Stalin, might support Catholicism in Russia. "It would help me so much with the Pope," Laval says. "Oho!" Stalin replies. "The Pope! How many divisions has he got?" (Emphasis in original).

Whether or not true, the tale is more about Stalin's character than it is meant to be instructive in the ways of realpolitik. At the time of Stalin's quip, Pius XI was Pope, and he more forcefully and loudly condemned the rise of Nazism than did his successor Pius XII, whose papacy began in 1939. Had Pius XI lived longer, the Church might have played a more active role in combating Nazism despite having no army--although historical counterfactuals are necessarily purely speculative.

Donald Trump is a funhouse mirror version of a Rennaissance man: he is impressively ignorant about just about everything. Thus, it is doubtful he knows about Stalin's quip, but if he did, he would likely mistake its brutality for wisdom. After Trump's recent social media and in-person accusations against Pope Leo XIV, the Pope said he did not fear Trump. Apparently, neither does Trump fear the Pope. About that, we need not speculate, given Trump's behavior.

Perhaps after being told that sharing an AI-generated image of himself as a Christ-like figure healing the sick by the laying on of hands wasn't playing well with his base, Trump deleted that post, although, as always, he did not take responsibility. He claimed (repeatedly) that he thought the image depicted him "as a doctor." The picture, which shows Trump's hands radiating holy energy so obviously is not of a doctor that one almost wants to applaud the audacity of the lie, except it's also possible that Trump is so unfamiliar with religious imagery and so incurious about the practice of medicine that he sincerely believed the image depicted him as a doctor. I leave it to readers to make up their minds about whether it's worse for Trump (and the rest of us) if he was lying or telling the truth.

Meanwhile, despite deleting the image of himself as Doctor Jesus, Trump pointedly refused to apologize for his social media posts targeting Pope Leo XIV, who, he repeated, is "very weak on crime and other things."

I've been puzzling over the weak-on-crime accusation. Does Trump think the Pope's job is to fight crime? Such are the times in which we live that I actually looked into whether there was some movie Trump might have seen (he certainly wouldn't have read a book) in which a fictional character is Pope by day and crime-fighting superhero by night. I came up empty. I eventually concluded that "weak on crime" must be a reference to the fact that Leo has criticized brutal crackdowns on immigrants. That has nothing to do with crime, of course, but Trump sells his immigration policy as targeting violent criminals. Here too, it's not clear whether it would be worse if Trump were simply lying about that or actually believed it.

It is tempting to think that Trump's blasphemies will prove to be the breaking point for his MAGA base, but past experience breeds caution. One could build an army of scarecrows from the enormous pile of straw amassed out of each ostensible last straw of Trump's outrageous words and deeds. Yet even if Trump's self-inflicted stigmata end up causing few defections from his base of supporters, they are not costless for the United States or, ultimately for Trump's political fortunes. Trump's Stalin-esque dismissal of the Pope is, in microcosm, his approach to everything, eschewing soft power--indeed, denying the very existence of soft power--in favor of bullying.

There is a scene in chapter 8 of George R.R. Martin's A Clash of Kings that is also depicted in episode 3 of Season 2 of the HBO adaptation A Game of Thrones in which Varys poses a riddle for Tyrian:

In a room sit three great men: a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. ‘Do it,’ says the king, ‘for I am your rightful ruler.’ ‘Do it,’ says the priest, ‘for I command you in the names of the gods.’ ‘Do it,’ says the rich man, ‘and all this gold shall be yours.’ So tell me—who lives and who dies?

The riddle has no definitive answer, as Tyrian observes. It depends on what the sellsword values. The initial lesson of the riddle is thus that power does not derive from politics, religion, or wealth but from strength. It is then suggested that the king has the upper hand because even if, in the moment, he does not command the sellsword, he commands an army. But then Varys observes that this merely moves the locus of inquiry from the sellsword to the army. Why is the army loyal to the king rather than to a priest or a rich man? Ultimately, Varys concludes: "Power resides where men believe it resides. No more and no less."

Trump holds power despite having committed numerous high crimes and misdemeanors because Republicans in Congress fear that if they cross him, he will throw his weight behind a primary challenger. He wields power with no opposition from across Capitol Hill for the same reason. It is long past time that everyone gave up their belief in Trump's power.

-- Michael C. Dorf

How the Supreme Court has Helped Destroy Free and Fair Elections

2026-04-13T07:00:00.002-04:00

I highly recommend a new book of essays edited by Geoffrey Stone and Lee Bollinger called "Money, Politics, and the First Amendment." Numerous election law experts contributed to this volume canvassing the Supreme Court's election law decisions dealing with the negative effects of money on free and fair elections. Most of the essays are critical of the Court's decisions and how they have contributed to the sorry state of our democracy. The entire book is well-worth reading.

In this post, I want to highlight one of the essays written by Dean Erwin Chemerinsky and his son Alex called "Getting it Wrong: The Supreme Court and Campaign Finance." This essay is concise, persuasive, accessible, and with pinpoint precision demonstrates the severe harms caused by the Court's use of the First Amendment to limit legislative efforts to offset the distorting effects of the free flow of money on our election system. The authors make clear that they are not arguing that First Amendment concerns are wholly irrelevant to the complex issue of money in politics--just that the Court has improperly and unnecessarily used free speech values to enable the wealthy to take control of and distort our elections.

The authors point to five serious mistakes that the Court has made in its election law decisions. These errors are summarized below but please do not mistake this post for a full discussion of these problems. The entire essay as well as the whole book are well worth your time.

1) Money is not Pure Speech Under the First Amendment

In a series of decisions starting with the landmark case Buckley v. Valeo, the Supreme Court has held that money is speech, and the justices used strict scrutiny to strike down reasonable restrictions on campaign spending. But, of course, money is not speech even if money often facilitates speech. When I spend money to pay for air conditioning or even theater tickets, I am not engaging in speech. When I spend money to pay other people to speak, that is a mixture of conduct and speech that, according to the Chemerinskys, should be reviewed under the Court's traditional intermediate scrutiny test, and that difference could make all the difference in how courts view the issue of legislative restrictions on campaign spending. The essay argues the following:

Spending is a way of expressing support for a candidate, but it is not itself speech.... Conduct which merely facilitates speech should not be treated as if it were itself speech. Education also facilitates speech, yet the Court has rejected the claim that there is a fundamental right to education.... The consequence of [treating spending money as pure speech] is to make it far more difficult for the government to impose restrictions on campaign spending because of the need for the government to meet strict scrutiny. It is the foundation for the law of campaign finance that has developed over the last half-century.

Money is related to speech and at times intermingled with speech, but it is not speech. The Court's false equivalence has done enormous damage to the goal of free and fair elections.

2) Distinguishing Campaign Contributions and Expenditures

The Court in Buckley drew a sharp distinction between direct contributions to candidates which can be regulated and expenditures in favor of candidates or issues which effectively cannot be. The Court's rationale was twofold. First, expenditure limits lessen the quantity and diversity of speech directly whereas contribution caps do not meaningfully restrain political expression. Second, the Court said that contributions pose far greater risks of corruption than expenditure limits.

As the Chemerinskys point out, however, the "distinction between contributions and expenditures makes little sense." I cannot say it better or more succinctly than they do:

Large expenditures risk corruption or the appearance of corruption in the same way as large contributions. If a candidate knows that someone has spent a significant amount of money to get him elected, there will be exactly the same effect as when the money comes through contributions. At the end of the day, the money all goes to roughly the same place; we doubt it matters much to candidates whether they buy their own ads or whether someone else does it for them. Elected officials can be influenced by who spends money on their behalf just as they can be influenced by who directly contributes money to them. The perception of corruption might be generated by large expenditures for a candidate just as it can be caused by large contributions.

Both campaign expenditures and contributions have expressive elements and both entail substantial risks of corruption. The Court's sharp distinction between the two is irrational and has led to much chaos and confusion in post-Buckley cases.

3) Corporations are not People

It is a bit crazy that this needs to be said but in both real life and for constitutional purposes corporations are not people. Under what circumstances corporations should be accorded the same constitutional rights as individuals should be a nuanced and fact-specific question. Exxon has a right under the Fourth Amendment to be free from unreasonable searches and seizures, and the New York Times has full free speech and free press rights to publish op-eds and other opinion pieces. But neither, of course, has the right to vote or many other rights we accord, you know, real people.

Corporations have the ability to pool together large amounts of money and then spend it in support of candidates and causes that don't necessarily reflect the views of their shareholders or employees. Their essential nature means corporations have vast resources to influence local, state, and national elections (as do labor unions). Treating corporate and union spending the same way as individual spending, as the Chemerinskys point out, is a policy choice not compelled by anything in the Constitution and which "is politically advantageous for those with money."

The Court's essential assumption that in the context of campaign finance restrictions corporations have the same rights as people is dangerous and wrong.

4) Leveling the Playing Field Should be Considered a Strong Governmental Purpose

The Court has said that the goal of ensuring that some voices do not drown out all others when legislatures regulate campaign spending is not even a legitimate governmental interest, much less a strong one. There is no reasonable constitutional justification for this value judgment. The Chemerinskys quote Justice Stevens's strong dissent in Citizens United to support their view:

The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The Court's campaign finance cases since Citizens United have unleashed a torrent of spending by the wealthy that reasonable lawmakers could see as a serious threat to our system of representative government. Yet, the Supreme Court has prohibited all efforts to address this problem, often leading to the drowning out of the voices of people who do not have large accumulations of wealth. Nothing in the text, structure or history of the Constitution supports this aggressive judicial rejection of the strong governmental interests in free and fair elections for the wealthy and the poor alike.

5) The Court Should not Reject Public Financing Reforms that Lead to More Speech

In a major campaign finance case, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the conservative justices struck down an Arizona initiative to encourage candidates to accept public money for their campaigns. If they did, they had to agree to a set of conditions regulating how much money they spent themselves and accepted from others. No candidate had to accept the money or the conditions, but if their opponent did, then that opponent could receive, up to a cap, more public money to help her compete with her wealthier opponent.

The Court struck down the law on the basis that it penalized candidates who spent their own money on their own campaigns. But, as Justice Kagan explained in dissent, and the Chemerinskys agree, the Act did not limit speech at all. Instead, it subsidized the speech of less wealthy candidates thereby actually increasing and subsidizing speech.

At the end of their essay, the Chemerinskys argue that the overriding value judgment behind many of the Court's cases is the desire to protect the ability of the wealthy, including corporations, to influence local, state, and federal elections. This ideological position, however, is a policy choice not dictated by the Constitution. It is also one that benefits the Republican Party, which is quite obviously not a coincidence.

There is much more in this essay and in the book worth reading. But the five major points discussed above go a long way in explaining how far away this country has moved from free and fair elections for all.

by Eric Segall

Some Unexpectedly Broad Policy Lessons from the Nitty-Gritty Details of Expatriation

2026-04-10T12:49:00.001-04:00

Would anyone who moved out of the United States before the onset of the current dystopia be so crazy as to move back? In "Emerald Farewell," published here on Dorf on Law two months ago, I revealed that at least one such crazy person exists. It is I. In that column, I mostly limited myself to offering a broad assessment of Dublin, which was my final foreign stop before returning to the US at the end of 2025. I concluded with this somewhat snarky comment about Ireland: "It's a great place to visit. Full stop."

In that column, I also teased a future Verdict column:

In an upcoming column on Verdict (from which I have been on leave), I will explain in some detail the pluses and minuses of expatriation in all of their gory, practical detail. That column will also include my attempt to respond to those who might be saying, "Wait, you were actually out, and you chose to return now?"

That new column, published this morning, is "American Repatriation? Why Would Anyone Move Back, Especially Now?" Verdict's excellent editor wrote this blurb describing the column:

Law professor and economist Neil H. Buchanan recounts his three-year experience emigrating through the Netherlands, Canada, and Ireland before returning to the United States. Professor Buchanan suggests that while the impulse to leave the US is understandable, expatriation is far more logistically grueling, expensive, and isolating than most people anticipate—and explains that these practical realities, rather than any resolution of the political concerns that drove him abroad, were central to his decision to return.

As it happens, I disagree with that summary. Even so, I am not asking the editor to change it, because I can see that it is a fair way to read the piece. Moreover, the distinction between his description and my intention is illuminating.

He is certainly right that the political realities at home offered no enticement to go back, but the practical realities were absolutely not "central to [my] decision to return." Those realities were daily irritants that I am happy no longer to be enduring, but they did not in any way drive my decision. And that difference does matter, because I intended my message in that column to be: "For anyone who has thought about expatriating, here are some unexpected cons to take into account when you think about the pros; and for anyone who is thinking about coming back, I can testify that there is a surprising upside to being where things feel familiar and easy." That, however, is far from a statement those those cons should be dispositive.

I have not, in fact, described why I decided to leave Dublin, and I have no plans to do so. I will say only that my reasons were professional and personal, with no need to state the professional reasons because I see no point in disparaging publicly the people involved, and the personal reasons are simply that: personal.

Frequent readers of my columns are certainly aware that I regularly use personal anecdotes and some self-revelatory comments to spice up and sometimes motivate my columns. While that is true, I always include such tidbits in service of some larger argument or policy point. Readers who continue to the end of this column will find that that is the case again here.

As noted above, one of the larger points in today's Verdict column was to inform people who might be thinking about expatriating about the unforeseeable (but surely surmountable) challenges that they will face. In turn, people who have no intention of moving can learn what their decision has spared them.

Again, however, I was more than willing to deal with all of the expense and nonsense involved in leaving and staying away, especially because (as I noted in the column) a large number of the annoyances were once-and-that's-that matters. Navigating the immigration laws to be able to reside in a country is the most obvious one-time matter, although it is important to point out that the "once" can and does go on for months or years, and it also costs quite a bit of money before getting to "that's that."

Writing today's Verdict column presented the challenge of just how far into the weeds I should go in describing the practical challenges of moving abroad. I focused on some particularly harrowing -- albeit funny, but only in retrospect -- events of my dealings with immigration lawyers and tax advisors. (Because I was focusing on the cautionary tales, I did not happen to mention one big surprise, which was that my realtors in all three places were fantastic. Having had very mixed experiences in the US, that was a relief.) Those immigration and financial matters were unquestionably essential issues, but there were plenty of other things that might seem like nitpicky details that should be left on the cutting room floor.

Instead, the Verdict editor asked me to add some of those small details, which I obliged with a list that included things like financial transaction fees, figuring out where to buy basic pharmaceuticals (and learning the local brands), and even spending a full day trying to find where to buy moving boxes. (I am not kidding about that last one.)

Notably, we are now living in a world where many of the longstanding annoyances and expenses of being outside of the US are no longer salient, especially with the rise of non-cash transactions. Many people barely ever use cash in the US, and it is even easier to be cash-free in other countries. Things like travelers checks and even ATM compatibility issues and fees are blessedly no longer part of our lives.

Even so, there are still many, many seemingly small things that can become big things. Here, I want to add to the list in my Verdict column, again to make a larger point that ultimately has some serious policy implications. For now, however, prepare for both nittiness and grittiness.

Moving abroad means changing phone numbers, which honestly surprised me, because I thought that I could keep my US cellphone number if I was willing to continue to pay foreign roaming fees. Not true, so after a couple of months in Toronto, I had no choice but to change carriers and get a Canadian number. Leaving aside just how ridiculously bad the customer service is among the major carriers there (incompetence, of course, plus relentless up-selling that is disguised as politeness), it would seem that changing to a new phone line would be a minor matter that might involve only as much time as needed to choose which duopolist to overpay and then to set up service.

If only. Even though Canada uses the same country code as the US (+1) and the same area code and phone number system, some -- but not all -- businesses' systems are incapable of processing transactions based on Canadian phone numbers. Even fewer are able to deal with phone numbers with different country codes (+353 for Ireland, +31 for the Netherlands), different lengths of area codes, or 8-digit versus 7-digit numbers. As a consequence, US-based transactions -- and believe me when I say that every US expat it going to continue to do a LOT of US-based transactions online -- that require entering a phone number will simply not be possible.

This carries over to physical addresses as well. My credit union in the US, for example, has an online change-of-address form, but the dreaded red asterisk (*, indicating a required item) sits next to the fields for not only City but State and Zip Code. A few systems include Canadian provinces on the list of states, and fewer still recognize foreign postal codes (which typically include letters and more than 5 characters). When that becomes a problem, the only alternative is to call customer service. Unfortunately, customer service calls often involve long hold times, and my experience with foreign cellphone carriers put me in many situations in which it turned out that my international roaming plans did not include certain international calls. One month's bill in Ireland included an extra 90 euros ($105) for two calls to US banks, totaling 30 minutes.

Are your eyes glazing over yet? Try living with that level of unknowability for nearly every transaction that one might need to make. Another unexpected, seemingly trivial example: I wanted to continue to make contributions to my grandkids' college savings plans, but the online system for the company that processes such payments requires that donors outside the US send paper checks to an address in Virginia. So one of the least reliable services in the world -- international postal delivery -- now has to be involved, and at a premium cost.

Even the largest institutions are sometimes incapable of dealing with the nit and the grit of non-US transactions. It otherwise made sense for me to continue to use the credit card that I have been using for decades, which is provided by one of the largest US banks. Although most transactions went through, the bank's security protocols sometimes required that I enter one of those six-digit codes that is sent by text. But because that bank's phone system could not recognize non-US numbers, those transactions were impossible. Over the space of a year, I spent at least five hours on the phone -- mostly on hold -- with that bank's customer service office (at least those calls were free), and despite being told again and again that the problem was solved, it never was. Again, this is a global banking behemoth.

Finally, speaking of those two-factor authorization codes, guess what happens when a person's phone number has changed? In some cases, the system allows alternative authorization (such as email), but many systems embody the perfect Catch 22 in allowing a person to change their contact phone number only by receiving a code at their old contact phone number. And this was not only on systems where the interaction was minor (like buying a product online). In fact, the login systems for US government services make it impossible to change one's number from abroad after the existing US-based number has been discontinued. This meant, among other things, that I could not navigate Medicare issues online, which was especially bad when the Trump DOGE teams devastated customer service for Social Security and Medicare. I only was able to do what I needed to do by contacting the US embassy in Dublin, which for some reason was still set up to provide real customer service.

There are countless additional examples, but even I have limited capacity to vent about such things. In any event, this deluge of details is the tip of the iceberg for Americans living abroad. Some are easy to handle, and some go away permanently. Some (even the most trivial), however, can be nearly impossible to fix, and there is always a sense of vague uncertainty looming over daily life, with some new and completely impossible to anticipate mini-hell possibly taking up hours or days of one's time.

Again, however, that was not "central to [my] decision to return." If the professional or the personal sides of life had gone even half as well as I had reason to expect, I would still be over there, and my daily life would simply involve accepting that being outside of the States takes a huge, unanticipated toll in extra expense, lost time, and ongoing frustrations of all sorts.

So one larger lesson here is that international migration is extremely difficult, even for people with adequate funds and training in things like law and finance. No one should imagine -- for themselves moving away or for anyone moving to the US -- that anything about moving to a new country is simple or easy. I shudder to imagine what it is like for people who come to this country and try to comply with everything that they will face, especially people who are here because of threats to their lives back home and who have little or no money.

Another, even larger implication of all of these nasty little details is that hassles are bad for people's lives and for the economy as a whole. In a column last September, I described how the process of filing taxes -- not the taxes themselves -- imposed costs that could make certain economic activities not worth the candle (and which explains a large part of my absence from Verdict over the past year):

Although Irish tax rates are a bit higher than those in the US, they are nowhere near the level that might make even a pro-tax liberal say, "Eh, not worth it." But that level does exist, as the ridiculous persistence of the so-called Laffer Curve makes clear, with its trivially true observation that a government that charges 100 percent tax rates would surely collect no revenue. Not true here [in Ireland]. What is true, however, is that if I were simply to trigger any tax obligation, I would simultaneously trigger a process that would incur filing costs. Those costs would include not only fees paid to tax professionals but time spent finding and providing the documentation that would be required to file my tax return properly. The accountancy fees are not proportional to the amount of income involved, and I figured out that paying an accountant to handle even relatively trivial earnings would create the functional equivalent of a 100 percent tax rate. (As an odd but reasonably close analogy, think of it as the equivalent of paying even a small cover charge to enter a pub, but you’re only planning to order one soft drink.) ...

[T]he non-tax burdens caused me to say, "I can wait." This combination of facts and circumstances "destroyed wealth" in the sense that Justia will not provide a product that it would otherwise have been willing to provide, and I chose not to provide it even though it means ending up somewhat less wealthy.

The breakup of the international order is causing many serious issues, often matters of life and death. Without in any way trying to diminish those tragedies, it is worth emphasizing that anything that makes international coordination more difficult has untold knock-on effects that people might not even realize are happening, all because of some stupid leaders' beliefs that their countries can go it alone. Those politicians are right in the literal sense embodied by North Korea's isolation, but they are quite wrong that it is easy to be discoordinated with the rest of the world.

The US is seeing only the beginnings of those costs now. The UK is still reeling from its insane decision to leave the EU ten years ago. Given my Scottish last name, I have always felt an emotional pull toward favoring the break up of the United Kingdom, to allow my ancestral land finally to be free. If an independent Scotland were allowed to rejoin the EU as a new country, that would be less costly (in the broadest sense of that word) than it would otherwise be, but of course the leaders of Europe have every reason to discourage national breakups and piecemeal new memberships. And the people who are pushing for Alberta's independence from Canada must be smoking something.

Do the logistics of two-factor authorization, cellphone plans, or online address protocols have implications for people's lives? Absolutely. The people who try to move to other countries (and, in many cases, succeed) see those costs up front, while most other people are unaware of how many things are going right behind the scenes in their socially, financially, technically, and politically integrated worlds.

Special note to readers: Thanks very much for sticking around to the end of this column, which was admittedly a bit of a ride.

- Neil H. Buchanan

AI Legal Research and Thoreau's Warning

2026-04-09T07:00:00.014-04:00

During my Federal Courts class earlier this week, a student asked me a question about a point I had made that appeared to contradict a sentence in the casebook I use for the course. I said that I was pretty confident I was right and the casebook was wrong but that I would do some legal research and get back to him after class. The upshot of that research is that I was indeed right but that the relevant sentence in the casebook was ambiguous, not necessarily wrong. It appeared to describe the law in a way that contradicted what I said but read in context it could also be understood to be making a statement about a reform proposal of various scholars. (I subsequently confirmed with one of the casebook editors that the language was indeed intended as the latter; he graciously agreed that the statement was ambiguous.)

How did I determine that I was right? After class, I took to my computer to look into the issue. As I sometimes do these days, I decided to begin my legal research by posing the issue via a simplified hypothetical question to a chatbot, Claude. After a few seconds, it confidently spit out an answer. According to Claude, my view was mistaken. Claude cited five cases and built an argument based on them. I recognized two of the cases and was pretty sure they did not stand for the propositions Claude said they stood for. I read them and the other cases and verified that Claude was completely wrong. I said so. Here's what Claude wrote in response:

"You are absolutely right to push back on that, and I apologize for the sloppiness. You correctly identified the flaw in each of those citations . . . . Honest Answer[:] I am not confident I can identify a Supreme Court case that squarely holds" what the prior answer confidently asserted.

But even that was misleading, because there is authority that pretty squarely holds the opposite of what Claude asserted, i.e., that supports my view that I had communicated to the students. I found that contrary authority by posing the same question to Westlaw AI Deep Research, Gemini, and chatGPT, each of which told me I was right and led me to the correct authority. Of course, I only knew that this was the correct authority because I spent some more time reading the various cases and checking to see whether there was any relevant subsequent negative history (the Westlaw equivalent of Shepardizing).

I've described the interaction in general terms above because the underlying legal issues involve a somewhat subtle point involving the Eleventh Amendment and state sovereign immunity, which is itself a fairly technical subject. For interested readers, I've reproduced the exchange in this Google Doc. The key point here is simply that Claude got it wrong. I want to use that fact as the springboard for a broader discussion of the use of AI in legal research.

Most of the high-profile instances of lawyers screwing up via AI involve hallucination. Damien Charlotin, who teaches legal data analysis in France, maintains a useful global database of reported cases in which filings contained cases that were completely made up, misrepresented, or quoted for language that did not actually appear in them. The database currently has over 850 entries for the United States--and those are only reported cases. Undoubtedly, there have been many others. Most but hardly all of the offenders in the U.S. cases in Charlotin's database are pro se litigants. An alarming number of lawyers seem to be submitting legal documents written by AI without bothering to check whether the material the AI cites is represented accurately, quoted accurately, or even exists.

That is obviously extremely problematic. Perhaps there will come a day when AI is good enough to be trusted to replace lawyers, but it is nowhere near there now. I mentioned above that despite Claude's fumble of my sovereign immunity question, the other chatbots got it right, but even Westlaw--which is the least likely to hallucinate because it operates in a closed universe of legal materials--somewhat overstated the import of several key cases and also devoted about half of its answer to irrelevant material (discussing abrogation, not just waiver, for interested experts).

To be clear, I am not saying that AI can't be used responsibly in legal practice. What I am saying is that, unless and until it becomes more reliable, it might not be worth the investment. To explain why, I want to lean on a point that Henry David Thoreau made in Walden: that when one takes account of all the labor that ostensibly labor-saving devices require, they may end up requiring more labor, not less. Writing in the mid-19th century, of course Thoreau was not discussing AI, but the point generalizes. Here's his argument about the then-relatively-new technology of the passenger railroad:

I have learned that the swiftest traveller is he that goes afoot. I say to my friend, Suppose we try who will get there first. The distance is thirty miles; the fare ninety cents. That is almost a day’s wages. I remember when wages were sixty cents a day for laborers on this very road. Well, I start now on foot, and get there before night; I have travelled at that rate by the week together. You will in the mean while have earned your fare, and arrive there some time to-morrow, or possibly this evening, if you are lucky enough to get a job in season. Instead of going to Fitchburg, you will be working here the greater part of the day. And so, if the railroad reached round the world, I think that I should keep ahead of you; and as for seeing the country and getting experience of that kind, I should have to cut your acquaintance altogether.

Whether Thoreau was right about the railroad even in his day is debatable. Walking thirty miles per day is no mean feat. And while it's true that one can see the country and have interesting experiences while walking, one might meet interesting people or read a good book or take a much-needed nap while riding the train. But whatever Thoreau thought about this particular example, surely there are instances in which his point holds--especially with respect to marginal technological improvements.

I ask readers who work in large organizations (like a corporation, law firm, government agency, or university) to reflect on the last time the organization "upgraded" its accounting software or switched from one platform to another. Think of all the additional time spent learning the new system, waiting to have questions answered, and re-doing whatever submission you made thinking you had finally gotten it right only to have the system reject it for missing something you don't understand. Those hours count on the cost side, as does the time spent by IT professionals learning the system and the money spent by the organization to license the new system. If time is money, Thoreau's point is that equally, money is time. So a full accounting of the time saved could end up being negative. I wouldn't say that such changes are never justified. I would say that there's never a guarantee they will be justified.

Now suppose you've got a brief due and want to turn to generative AI to cut down on the time it takes to write it. It will certainly take less time for the AI to do the relevant legal research and write a first draft of the brief than it would take you. But now let's add up the costs in dollars and time on the other side.

Start with the cost of using the AI. You might use a free general purpose chatbot, but it will be more error-prone than one for which you pay, so you or your firm will probably want to pay for a subscription. Even the free AI chatbots aren't really free. There's the negative externality of their power usage, although that's admittedly not a cost that the individual lawyer will bear, except as a member of the general public. Likewise for the harm AI causes the authors and artists whose work it exploits without compensation.

But even if we put the monetary cost and negative externalities aside, I wonder whether the time one needs to spend checking a chatbot's work and editing its prose doesn't eat up much or even all of the time-savings that turning to it in the first place supposedly afforded. It's true that a competent lawyer would cite-check a brief written without AI assistance too, but that's a shorter process. If you've written a brief, you might have inadvertently gotten some pin cites wrong, but you won't often have gotten the holdings of cases wrong, much less made up cases.

The point isn't that hallucinated cases or quotations are difficult to spot. If you actually look up every citation, hallucinations are incredibly easy to spot. The point is rather that because you can't trust the chatbot to have cited real authority for the actual points that authority supports, you can't trust the argument the chatbot constructs. And that means that you can't trust the brief. So have you really saved any time? Or have you wasted time on a false start?

Walden is sometimes read as prescribing asceticism. It is true that some passages lend themselves to that understanding, but read sympathetically, Thoreau is better understood as advocating deliberation about what constitutes genuine progress and improvement. His promotion of simplicity, frugality, and connection to nature as antidotes to unthinking consumerism is, if anything, more timely now than in his day. So too is his skepticism about new technologies, which, he argued, should be adopted only after an honest and thorough assessment of their costs and benefits.

One need not be an AI doomer to worry that AI's adoption in any field could be more costly than beneficial. That worry strikes me as warranted for at least some of the uses to which it is being put by lawyers. There is no excuse for a lawyer ending up on Charlotin's database, but even much responsible AI use may not be worth the effort--at least not yet.

--Michael C. Dorf

This is the Worst Possible Time to Strengthen Executive Power

2026-04-08T07:00:00.006-04:00

Tonight from 10-11 pm Eastern time, Professor Vik Amar and I will discuss the unitary executive theory (UET) with a special focus on the argued-but-still-pending SCOTUS case of Trump v. Slaughter. The late start time is because the live audience will be in Davis, California at the Schwartz/Levi Inn of Court. (For those unfamiliar with the concept, in the United States an Inn of Court is something in between a bar association and a social club for judges, lawyers, and law students. American Inns of Court are modeled loosely on their older UK predecessors, which also have regulatory functions like those of a state bar in the U.S.) I'll be Zooming in but the event is otherwise only in-person, so there's no remote access. Accordingly, for the benefit of readers of this blog and also to help me organize my remarks, here I'll set out the core of my view.

I'll begin with the observation that although tonight's discussion was planned months ago, it couldn't be more timely. The current occupant of the White House is hellbent on violating federal statutes and the Constitution. Just yesterday, with less than two hours to go before his self-imposed deadline for carrying out his threat to commit war crimes, President Trump announced a two-week ceasefire in the war he started in violation of international law and the Constitution. Craven party loyalty prevents Congress from impeaching and removing him for his multiple high crimes and misdemeanors. Could there possibly be a worse time to contend that the U.S. president should have more power and fewer statutory constraints?

Perhaps during the Q&A, one or more audience members will offer a robust defense of the extreme version of the UET championed by the White House and apparently resonating with the conservative super-majority of the Roberts Court. Professor Amar and I will likely disagree with one another on some points because he is somewhat more sympathetic to the UET than I am, but he is hardly a UET fanatic. For example, long ago (and also more recently), he highlighted the "retrieval" problem: accretions of executive power tend to be a one-way ratchet because presidents can veto bills reducing their powers. Thus, I expect our disagreement to be narrow compared with our areas of agreement.

So, what is my view? Simply that the Constitution is silent on the key questions implicating UET: whether and to what extent Congress may limit the ability of a president to remove an officer? To my mind, UET proponents are unpersuasive in their textual arguments. Yes, Article II vests "the executive power" in the president, but it does not define what that power is nor does it say that for the president to exercise it everyone in the executive branch must serve at his pleasure.

The UET argument that "the Constitution vests the entirety of the executive power in the President," as Chief Justice Roberts asserted in Trump v. United States, proves too much. After all, even officers who serve at the pleasure of the president can exercise executive power without direct supervision by the president--often in ways that cannot be readily undone--until they are fired. If taken seriously, the Trump dictum would mean that the executive branch could consist of only the president and perhaps a handful of valets, in direct contradiction of the Constitution's reference to "heads of departments" and "officers." The Vesting Clause cannot bear the weight that the UET would place on it.

What about the Take Care Clause? Numerous scholars have argued, persuasively in my view, that it imposes a duty on the president but does not grant any power the president would otherwise lack (such as at-will removal). Moreover, it would be especially rich for the Court to rely on the Take Care Clause to enhance presidential removal authority at a time when the president is taking care to ensure that so many of the laws are not faithfully executed.

Which is not to say that the Court won't do exactly that. Based on the oral argument in Slaughter, I fully expect the Court to invalidate the removal restrictions on Federal Trade Commissioners either by frankly overruling Humphrey's Exeuctor v. United States or essentially confining it to its facts. (One might think it impossible to confine Humphrey's to its facts without ruling against Trump in Slaughter, given that both cases involve the FTC. However, the Court might say that today's FTC exercises executive powers that it lacked in 1935.)

I should be clear that while I do not support the Court's effort to eliminate nearly all independent agencies, I also am not a strong proponent of the "quasi" categories in Humphrey's. As I explain in a recently published symposium essay, "in relying on the quasi categories, Humphrey's planted the seeds for its own destruction. It implied that if the [FTC's] task were executive, then the removal restrictions would be unconstitutional. Put differently, Humphrey's itself accepted the UET’s view of the removal power."

What is to be done? One option would be to treat removal restrictions as a matter purely for Congressional discretion, so long as Congress itself doesn't retain a role in removal (because the Constitution provides only impeachment as a means of congressional participation in removal). Such an approach would hardly be disastrous. As Justice Kagan pointed out during the Slaughter oral argument, presidents have signed a great many laws that contain removal restrictions. They presumably did so because they concluded that those restrictions were not unduly intrusive on the powers of the presidency. Meanwhile, it is nearly impossible to imagine that two-thirds of each house of Congress would ever vote to place removal restrictions on federal officials over the veto of a president, so we need not worry about hard cases, such as removal restrictions on the Secretary of Defense or the Secretary of State. Accordingly, and in light of the Constitution's silence on the point, leaving the issue to Congress would make considerable sense.

I recognize, however, that the current Court will not go down that path, which would be even more permissive of removal than Humphrey's itself, and the Court seems intent on junking Humphrey's (in spirit even if not formally) in favor of a rule that further restricts congressional power to impose removal restrictions. In place of Humphrey's, I expect the Roberts Court to give us a rule barring removal restrictions except for the Federal Reserve, based on a bogus historical distinction. As I explain in the symposium essay, if the Court insists on restricting the removal power, a sounder course would be to replace Humphrey's Executor with a functional inquiry into the question whether a risk of executive branch self-dealing warrants insulation from at-will presidential removal.

-- Michael C. Dorf

Birthright Citizenship, Tariffs, Blah Blah Blah: Would One More Ridiculous Supreme Court Error Matter?

2026-04-07T16:48:00.003-04:00

The Trump Administration should lose the birthright citizenship case that the Supreme Court heard last Wednesday. Full stop. Professor Dorf's analysis last Thursday of the oral argument in that case made it very clear why the government should lose, and he did so even while giving the other side every benefit of every doubt. Moreover, he is hardly alone in that conclusion. Again, this is not a close call.

This is very much like the Court's recent decision in the tariff case, on which both Professor Dorf and I weighed in a bit more than a month ago. The Trump side's argument was so ridiculous that the 6-3 decision against him was merely evidence that there are at least three Republican appointees on the Supreme Court who are willing to toss logic, law, and evidence aside to enable their political leader's worst instincts.

But what are the non-legalistic stakes in those cases? That is, what if two of the six votes had switched in the tariffs case, and what if somehow five votes materialize to rewrite the Fourteenth Amendment in the birthright citizenship case? When I refer non-legalistic stakes, I mean to ask about the impact on real people as a result of such terrible decisions, which is different from the impact on the Court's already quite tattered reputation. When I asked in the title of this column whether one more ridiculous error by the Court in the birthright citizenship case would matter, I am not saying that the Court's reputation could not go lower. It could, and that would be bad.

Setting aside the cumulative impact of this Court's self-immolation, however, I am interested in the damage -- both the type of damage and the quantitative weight of the damage -- that mistaken court decisions would cause. After discussing why neither the tariff case nor the birthright citizenship case would cause fundamental harm if wrongly decided, I will offer examples of the Court's decisions that truly are terrible in every sense.

So, tariffs. Trump was illegally using the relevant statute (IEEPA, or the International Emergency Economic Powers Act) to extort and punish countries, completely at his whim. I have long argued that tariffs can be used strategically and carefully for good policy reasons, which means that I never bought into the "tariffs are bad because ... free trade!" nonsense from orthodox economists. But of course Trump is incapable of doing anything strategically or carefully, making it an easy call to oppose his abuse of IEEPA.

We need to ask, however, what would happen if Congress had -- inadvertently or otherwise -- written IEEPA in a way that delegated power to Presidents to impose tariffs selectively and without limit. That would be bad, but in that world the Supreme Court would never have heard a challenge to Trump's tariff insanity. It would be bad policy, but it would be bad policy that was duly legislated and thus available for a president's (ab)use. We have a lot of bad policies that Congress has created: at-will employment, wholly inadequate environmental regulations, a disastrous health-care financing system, and on and on. This would join that list.

The point is that we can find ourselves with terrible policy outcomes that result from legally unproblematic processes. If we had a legal regime in which Trump could have continued to do what he was doing (until the Court stopped him in February), that would have created more economic uncertainty and thus reduced business activity, higher unemployment, and so on. That, however, is in the same category as wishing that we had a Congress that would, say, pass a living wage law, or one that would fund better public transportation.

I am therefore not necessarily saying that the damage would be quantitatively insignificant. That is beyond the scope of this column. I am saying that imagining a world with Trump's version of IEEPA and comparing it to one with the actual version of IEEPA is a matter of assessing two policy regimes that any given Congress might have chosen.

This is even more true when we turn our attention to birthright citizenship. I happen to think that birthright citizenship is a very good policy regime, for reasons that I will explicate momentarily. Even so, imagine that the framers of the Reconstruction Amendments had written the citizenship clause in a narrower way that clearly and exclusively dealt with the newly freed people who had been cruelly and unjustly enslaved? In other words, what if the US had adopted a citizenship regime that more closely resembled those in the European countries from which the American power elite (or their parents or grandparents) had moved?

As I stipulated above, I would view that as a bad policy choice. And to be clear, I do not mean to say that "mere" policy choices are somehow unimportant. I agree with Moira Donegan, a columnist for The Guardian, who wrote last week that "[e]nding birthright citizenship would change the meaning of America." In particular, she argued movingly that abandoning birthright citizenship

would change what it means to be an American, and in so doing it would change what America means. Ending birthright citizenship would effectively end the United States’ experiment in striving to be a creedal nation that delivers democracy to a vast and diverse population of equals. It would make us instead something more vulgar, more common, and less special: a nation defined by ethnicity and heredity, those banal accidents that carry no righteous vision or moral aspiration, but only meaningless inheritance; a nation defined not by the hopes for its people’s future but by the unchangeable facts of their past.

That is a very big deal. On the other hand, the US has done many things that have made the country "more vulgar, more common, and less special." That in no way means that we should simply make additional bad decisions merely because we have already blown it in so many other ways, but the point is that the country would go on, in a form that I would regret to see but that would simply be different from what it could be.

Similarly, Professor Jacob Hamburger's guest column here on Dorf on Law early last year pointed out how much pure waste would be caused by a non-birthright citizenship regime:

[I]mplementing Trump’s order will impose an unnecessary amount of additional paperwork—ironic for an administration that claims to believe in “governmental efficiency.” A further irony is that naturalized citizens and permanent residents, who receive documentation through the immigration process, would likely have a much easier time proving their status than many native-born U.S. citizens who may only have a birth certificate.

That would also be bad. If the Court gets this case wrong, then, it will not only allow Trump to "change the meaning of America" for the worse but to do so by creating wholly unnecessary chaos in people's lives. We should hope that the betting odds are correct that the good guys will win that case.

But if I am not saying that these bad outcomes are quantitatively somehow not too bad, what am I saying? The idea here is that some outcomes are transformative of the country in a way that goes beyond allowing or disallowing certain policy choices. The truly bad outcomes are plenty bad in a policy sense, but they are super-bad in a way that makes the country less of a democracy and less able to resist authoritarian takeover.

When the Supreme Court cut the heart out of the Voting Rights Act of 1965 with 2013's Shelby County v. Holder, that was not only an arrogant assertion of power and a judicial negation of a nearly unanimous act of Congress. It set in motion the devolution of the country's political system, making it possible once again for Republican-run states to bring back Jim Crow-style laws that have made the country less of a democracy. In Rucho v. Common Cause, the Court's conservatives blithely said that there was nothing they could do about gerrymandering, saying (as I have put it many times) that the courts should defer to the political branches even when the issue is fundamentally whether the political branches deserve the deference that presumptively comes with being the representatives of the people.

An inexplicably unanimous Supreme Court in 2024 decided to write the Insurrection Clause out of the Fourteenth Amendment, and that court later in the year issued a non-unanimous opinion giving presidents immunity from some (perhaps all, although the Court's majority was coy about that question) criminal prosecutions, even after leaving office.

The latter decision was ridiculous as a matter of jurisprudence, but its vile real-world impact was entirely a matter of letting Trump buy time and thus escape prosecution before that year's election. The immunity question itself, however, was rather unimportant in the sense that it would have little or no impact on the world. In our nightmares, we worried that Trump might use that as an excuse literally to shoot someone on Fifth Avenue, but the bigger worry is that he will never leave office and thus might never even need to rely on the immunity decision (given that everyone seems to accept that sitting presidents cannot be prosecuted).

The former decision (regarding the insurrection clause), on the other hand, was absolutely devastating to the Constitution, the country, and the world. The Court could and should have said that, although it is possible to imagine difficult line-drawing questions about what constitutes insurrection, there is no reason to require Congress to have passed a law defining it in advance of January 6, 2021. As a direct result of that complete abdication of responsibility by nine presumably sentient adults, we are at this moment waiting to find out whether Trump will indeed decide that "[a] whole civilization will die tonight, never to be brought back again."

So would it be bad if the Court's conservatives (sometimes joined by its liberals) continue to make indefensible decisions? Of course it would. Every bad decision should be condemned. But some things are existential, and some are not. Birthright citizenship is a good idea, but the country and the world could survive without it. That is not true of the decisions that brought us to the brink of disaster.

- Neil H. Buchanan

Is the Rooney Rule Illegal?

2026-04-06T07:00:00.034-04:00

Last week Florida Attorney General James Uthmeier sent a letter to the NFL claiming that the League’s Rooney Rule, aimed at increasing diversity in the top ranks of NFL teams, is “blatant race and sex discrimination.” Concurrently, Uthmeier posted a video to X contending that the Rooney Rule violates Florida law.

The Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney, requires among other things that a team “interview at least two external minority candidates in person for open head coach and GM positions and at least two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women.

Uthmeier’s challenge is ostensibly to the NFL’s efforts to increase minority representation in its management ranks, but in reality it goes so much further. This kind of interview set-aside to promote diversity is common. For example, law firms have also implemented similar types of rules—e.g., Mansfield rules. Thus, if this domino were to fall, we may have further challenges to all sorts of efforts to promote diversity.

Florida’s antidiscrimination law, Title XLIV Section 760.10, largely replicates the language of the federal employment discrimination statute, Title VII of the Civil Rights Act of 1964. So, in the interest of generality, I’ll consider how Title VII may bear on the Rooney Rule. In relevant part, Title VII states:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Now the Rooney Rule is about interviewing, and thus not directly about hiring, discharging, or about “compensation, terms, conditions, or privileges of employment.” Consequently, subsection (1) seems inapplicable.

However, subsection (2), which applies to “classifying [] employees or applicants . . . because of such individual’s race [or] sex,” is putatively relevant. Indeed, the Rooney Rule undoubtedly classifies applicants to coaching positions as “minorities” or not, which in turn is defined with respect to their race and sex. Importantly though, classification alone is not enough to constitute a violation of Title VII. In order for the classification to violate Title VII, it must “deprive or tend to deprive [an] individual of employment opportunities.”

On my review of the case law, I did not find any case that squarely considered whether these kinds of set-asides for interviews violate Title VII. Thinking about how the statute would apply and whether anyone is deprived of an employment opportunity will depend on how a team manages its hiring process in light of the Rooney Rule. To see this, consider some examples:

(1) Suppose a team has a “merit” ranking of 15 candidates for its open coaching position. To be clear, it’s dubious whether there is such a thing as a purely merit ranking, but we accept the assumption arguendo. Suppose further the third and sixth candidates are qualifying Rooney Rule candidates. The team understands the requirement of the Rooney Rule and thus decides to interview the top six candidates from its merit ranking.

Under this decision, it is unclear who might be deprived of anything. Consider the seventh candidate—who we’ll assume is not a Rooney Rule candidate. Why are they deprived? Even if the Rooney Rule was not in effect, there is no reason to believe the seventh candidate would be interviewed.

(2) Suppose a team has decided it wants to hire Junior Lombardi, and it decides that they’ll interview some additional people to satisfy the Rooney Rule and also satisfy other social obligations (like promises to friends to interview their friend). Here again, it does not seem anyone is deprived of anything. The Rooney Rule candidates may have been misled and had their time wasted, but there may also be some advantages to interviewing, like for example it puts one’s name out there for future searches.

(3) What if a team interviews all of the candidates it wishes to interview, of which one is a Rooney Rule candidate. The team then decides to add one more Rooney Rule candidate to satisfy its obligation. And we can assume the additional candidate is actually low on the merit ranking for the team. Even here, no individual is deprived of anything—because in the absence of the Rooney Rule, no other candidate would have been interviewed, even if they were jumped on the so-called “merit” queue, because they didn’t make the team’s initial list of preferred interview candidates.

(4) Now suppose a team interviews all the candidates it wants to and that includes two Rooney Rule candidates. Again, no one is deprived of anything and the Rooney Rule did not change any decision making of the team.

(5) Finally, consider a team that decides to limit its number of interviews to six candidates because of time limitations. On their so-called merits ranking, the first candidate is a Rooney Rule candidate, and the next qualifying Rooney Rule candidate is ranked eight. The team decides to interview the first five candidates on their merit ranking, and then decides to interview the eighth candidate to round out the set of six.

Here, the candidate ranked sixth on merit has been deprived of an interview opportunity because the Rooney Rule led the team to interview a candidate of lesser perceived merit to satisfy the Rule’s requirements. In the absence of the classification of the Rooney Rule, candidate #6 on the merit ranking would have been interviewed. Thus, in this kind of scenario, there is a potential Title VII violation.

Now there is one possible argument to consider, if a team interviews someone because of the Rooney Rule and then goes on to hire them. In this situation, another candidate may claim to have been deprived of the job due to the classification. That is, without the Rooney Rule, the hired candidate would not even have been interviewed and thus not hired. Therefore, the complaining candidate would argue, but for the Rooney Rule they may have gotten the job instead. Indeed, even if the complaining candidate cannot show that they definitively would have been hired, they may claim to have been deprived of a greater chance of getting the job.

My intuition is that these arguments fail, because after the candidates are interviewed, the team’s hiring decision based on those interviews is causally distinct and separate from the Rooney Rule’s classification. Put another way, a candidate does not have a legally cognizable interest that others should not be considered for a job, and so if a classification promotes another’s consideration, that does not deprive the candidate of anything. And I would contend that this is true even under the Supreme Court’s broader understanding of causation, post-Bostock.

However, the issue is complex and nuanced. In Connecticut v. Teal, Black plaintiffs showed that an initial step in the hiring process, a test administered by the employer, had a racially disparate impact. The defendant state employer argued that the plaintiffs could not complain about that initial step, because the subsequent steps of the screening process eliminated any racially disparate impact. The Court held that doesn’t matter—if any step in the hiring process has a racially disparate impact, that can be challenged. Now, I think Teal is distinguishable: the plaintiffs there were deprived of an employment opportunity at the initial step—they were kicked out by the racially discriminatory test. In our Rooney Rule scenarios, I have argued nobody suffers a deprivation, because the imagined complainant gets an interview—it’s just that they have to endure more competition from others getting interviews. But it would not take much to imagine a court—especially the Roberts Court—seeing Teal as prohibiting any classification based on a protected trait at any stage of hiring, seeing even more competition in a job as some kind of deprivation.

One further point, raised to me by Professor Dorf, is whether this is properly understood as an issue of the Rooney Rule’s legality under Title VII or whether this is about when someone would have standing to challenge the Rooney Rule. Based on the text of subsection (2), it seems that there is not a statutory violation in the event that no individual is “deprive[d]” of an employment opportunity. Put another way, the EEOC (or other state authority operating under the state analogue) would have standing to sue to enforce Title VII, but without showing that the classification does not deprive (or tend to deprive) some individual of something, there simply is no violation.

So, what can we learn from all this? First, there are some plausible ways to proceed in open searches for candidates that utilize the Rooney Rule and that likely do not run afoul of the plain textual meaning of Title VII. Second, there are some ways to structure a search in light of the Rooney Rule that would seemingly violate Title VII—principally, where a team fixes the number of interviews and demotes a candidate for a Rooney Rule candidate. This suggests then that the Rooney Rule can survive legal challenge with good guidance on how to structure open searches in light of the law.

-Guha Krishnamurthi

Onesideism and Bad Faith Arguments from the Right in US Politics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

I want to offer two means of resolving the puzzle.

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

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

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

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

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

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

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

-- Michael C. Dorf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-- Michael C. Dorf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eric Segall

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

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

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

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

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

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

Too Much Complexity

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

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

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

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

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

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

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

Too Little Authority

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

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

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

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

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

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