09 May 2012

What’s Really at Stake in the Controversy Over Elizabeth Warren’s Past Claims of Native American Ancestry

Justia columnist and Cornell law professor Michael Dorf comments on the controversy that is brewing regarding Elizabeth Warren, the likely nominee for the Massachusetts Senate seat most recently held by Ted Kennedy. The controversy stems from Warren’s mentions of her Native American roots, and it turns out that Warren is, in fact, 1/32d Native American (specifically, Cherokee), so that her claim of having Native American roots is technically true, even if those roots are minimal. So why is the controversy continuing? Dorf suggests that it is because Republicans are trying to somehow connect Warren’s roots to affirmative action issues, even though there seems to be no evidence that Warren was ever herself a beneficiary of affirmative action. The Republicans’ goal, Dorf suggests, is to use affirmative action as a wedge between minority voters and working-class white voters. Continue reading →

Posted In: Politics

More Analysis and Commentary by Michael C. Dorf

23 Apr 2012 Michael C. Dorf

Recent Supreme Court Rulings May Show Hostility to Civil Rights, Even on the Part of Almost All of the Court’s Liberals

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court decisions that, he argues, may together show that almost the entire Supreme Court is hostile to civil rights claims. The first decision, handed down last week, is Filarsky v. Delia. There, the Court unanimously held that a part-time government employee who is alleged to have committed a federal civil rights violation enjoys qualified immunity. In the second decision, Minneci v. Pollard, which drew only one dissent and was handed down earlier this year, the Court also ruled in favor of a civil rights defendant. Focusing on the juxtaposition of the two rulings, Dorf argues, reveals a Court that selectively invokes principles of judicial restraint in a way that disserves civil rights. Continue reading →

Posted In: Civil Rights, Constitutional Law

9 Apr 2012 Michael C. Dorf

Severability May Hold the Key to Obamacare’s Future: How Much of the Law Will Survive the Supreme Court’s Review?

Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down. Continue reading →

Posted In: Constitutional Law, Health Law

30 Mar 2012 Michael C. Dorf

Three Key Exchanges in the Obamacare Oral Argument

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution’s limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case. Continue reading →

Posted In: Constitutional Law, Government, Health Law

12 Mar 2012 Michael C. Dorf

What We Can Learn About Equality and Religion From a Recent Israeli Supreme Court Decision on Military Service

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws. Continue reading →

Posted In: Constitutional Law, International Law, Speech and Religion

27 Feb 2012 Michael C. Dorf

The Supreme Court Agrees to Hear an Affirmative Action Case Will the Justices Honestly Confront the Issues?

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education. As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched. Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest. The new case that the Court will review, Dorf explains, involves the University of Texas’s admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions. Dorf describes the issues the Texas case raises, and predicts that the Court’s opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal. Continue reading →

Posted In: Civil Rights, Education

22 Feb 2012 Michael C. Dorf

How to Limit the Damage Caused by the Citizens United Decision

Justia columnist and Cornell law professor Michael Dorf comments on ways in which election funding can still be made more fair and just—even after the Supreme Court’s highly controversial Citizens United decision. (In Citizens United, as readers may recall, the Court invalidated a provision of McCain-Feingold that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.) Dorf covers the impact of Citizens United; the impact of another recent campaign-finance Supreme Court decision that preceded it; the calls that some have made for a constitutional amendment allowing campaign-finance reform; and options that Congress still retains, even after Citizens United, to reform the campaign finance process—such as simply requiring that media companies provide campaigns with copious free advertising space and time. Continue reading →

Posted In: Election Law

30 Jan 2012 Michael C. Dorf

Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon

Justia columnist and Cornell law professor Michael Dorf comments on remarks that Republican presidential hopeful Newt Gingrich made last week, promising that if he were to be elected president, then by the end of his second term, he will have established a colony on the Moon. Could that really happen? And if it did, would it be a good idea? Dorf considers present technological limits, and legal obstacles stemming from U.S. treaty commitments. While highly skeptical of the Gingrich proposal, Dorf does find a kernel of sense in it: Gingrich, Dorf notes, may well be right that the colonization of space could be the key to the long-term survival of human civilization. Continue reading →

Posted In: International Law

16 Jan 2012 Michael C. Dorf

The Constitutional Politics of Recess Appointments

Justia columnist and Cornell law professor Michael Dorf comments on the constitutional law regarding recess appointments—that is, appointments made by the president when Congress is not in session. The topic is timely due to the current controversy over President Obama’s recent grant of two recess appointments—for the positions of the head of the Consumer Financial Protection Bureau (CFPB), and the head of the National Labor Relations Board (NLRB). The President and Senate Republicans differ sharply as to whether Congress was, in fact, in recess when the appointments were made—and thus, as to whether the two appointments were valid. Dorf contends that each side makes a plausible case for its own position on this issue, and argues, more generally, that recess-appointment controversies cannot truly be understood without attention to the substantive merits of the appointment that is at issue in a given case. Continue reading →

Posted In: Constitutional Law, Government

28 Dec 2011 Michael C. Dorf

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition. Continue reading →

Posted In: Constitutional Law, Courts and Procedure, Government, Politics