Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law and related subjects. Professor Dorf blogs at Dorf on Law.

Columns by Michael C. Dorf

The Constitutional Politics of Recess Appointments

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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.

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

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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.

The Hidden “Unitary Executive” Issue in the Arizona Immigration Case

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Justia columnist and Cornell law professor Michael C. Dorf comments on the Supreme Court’s decision to take up a case involving the controversial Arizona immigration law—another blockbuster in a momentous Term for the Court, which will also resolve cases on the health care legislation and redistricting in Texas. Regarding the Arizona immigration case, Dorf explains the relevance, in the case, of the theory of the “unitary executive,” and notes that there seems to be a common misconception: The question in the Arizona case, he explains, is not whether Congress can preempt state immigration law—it plainly can—but whether Congress did, in fact, preempt Arizona’s immigration law. Dorf also explains the unusual way in which the Justices’ ideological leanings play out in typical federal-preemption cases, and why immigration cases involving federal preemption are atypical in this respect. In addition, he explains why a Court precedent on gun control and federalism may play a large role here.

A Health Care Law That Everyone in Congress Can Agree Upon

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Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

Scholars’ Amicus Brief Controversy Reflects the Evolving Relationship Between the Bench and the Legal Academy

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Justia columnist and Cornell law professor Michael Dorf comments on the evolution and role of the “scholar brief.” A scholar brief is an amicus (friend-of-the-court) brief submitted to a court—usually, the U.S. Supreme Court—by a law professor acting in his or her role as scholar, rather than advocate. Dorf notes that a column in The New York Times recently pointed to Harvard Law Professor Richard Fallon’s article draft questioning the value of scholar briefs, by suggesting that they are very often not particularly scholarly. In this column, Dorf considers why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy. In particular, Dorf connects the proliferation of scholar briefs to the increasing divide between legal scholarship in the academy, and the more practical work of the courts, including the Supreme Court. And yet, he notes that the academy’s work—contrary to the claims of some—actually does continue to have relevance to courts, in part by showing how disciplines such as economics and psychology can better illuminate the workings of the law.

Justice Thomas Takes Aim at the Court’s Church-State Jurisprudence but Hits the Constitution Instead

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Justia columnist and Cornell law professor Michael Dorf comments on Justice Thomas’s views on the proper approach to cases raising issues regarding the Constitution’s separation of church and state. Dorf contends that Justice Thomas is correct to observe that the Court’s current test for when the government is unconstitutionally endorsing religion, in violation of the Establishment Clause, is so vague that the way that lower courts and even the Supreme Court will rule, when applying the test, is highly unpredictable. Justice Thomas has accurately pointed out, for example, that a crèche displayed on government property violates the Establishment Clause, except when it doesn’t; a menorah displayed on government property violates the Establishment Clause, except when it doesn’t; and a cross displayed on government property violates the Establishment Clause, except when it doesn’t. Nevertheless, Dorf contends that Thomas, while mounting a biting critique of the Court’s current endorsement test, does not offer a superior alternative—and points out that, given the numerous Justices who’ve tried to solve this thorny problem over the years, there may actually be no superior alternative.

The “Obama Doctrine”: The Wisdom and Lawfulness of the President’s Take-No-Prisoners Approach

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Justia columnist and Cornell law professor Michael Dorf comments on the law relating to President Obama’s military strategy, which has emphasized air power and surgical strikes, as opposed to the use of ground troops, in a number of contexts. From the raid that killed bin Laden, to the drone strike that killed Anwar al-Awlaki, to air support for Libyan rebels, Obama’s tactical choices have led Dorf and others to scrutinize what seems to be an “Obama Doctrine” regarding the waging of modern war. Dorf notes that Obama is willing in some cases to use unilateral force, though less willing to do so than the second President Bush (who himself may well have been an outlier among recent presidents in this respect). One example, Dorf notes, is Obama’s use of unmanned drones. Dorf covers both the benefits of the Obama Doctrine, such as decreasing American casualties and diminishing America’s role as occupier, and its costs, such as drones’ causing civilian casualties—an important harm in itself that also leads to hatred of America. Finally, Dorf notes that the Obama Doctrine raises a host of significant legal questions that have yet to be resolved.

Can Patients and Providers Sue to Enforce the Federal Medicaid Law?

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Justia columnist and Cornell law professor Michael C. Dorf comments on a case in which the Supreme Court heard oral argument last week. As Dorf explains, while the case may seem technical, it will have some very substantive consequences for the judicial enforcement of federal rights. The question the case directly raises is whether private parties (specifically, Medicaid patients and providers) can sue states to demand that they comply with the requirements of the federal Medicaid law. Interestingly, the Obama Administration's view is that they cannot, while the right-leaning U.S. Chamber of Commerce’s view is that they can—even though Democrats traditionally favor court access, and Republicans traditionally are more likely to oppose such access. Dorf explains why the Democrats’ decision to oppose court access here, while favoring it generally, is a high-risk strategy that might backfire, depending on the Court’s resolution of the case.

How Much Is Truly at Stake in the Legal Battle Over Obamacare?

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Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Should Congress Save the Post Office?

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Justia columnist and Cornell law professor Michael Dorf comments on the ongoing controversy over the fate of the U.S. Post Office. Dorf describes the causes of the Post Office’s troubled state; considers the pros and cons of a possible plan by which Congress would subsidize the Post Office; describes what such a plan could look like in practice; and notes the virtues of opting for a stopgap solution now in light of the reality that long-term forecasts show that the end of the Post Office is ultimately inevitable.

The Fight Over Alabama’s Immigration Law Features Increasingly Estranged Allies: Conservative Populists Versus Big Business

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Justia columnist and Cornell law professor Michael Dorf examines the way in which an Alabama immigration law—which would place the state in the role of enforcer of federal immigration laws—illustrates a schism that may be growing between two conservative constituencies: populists and corporatists. Dorf illustrates his point about the schism by reference to the controversies over the Troubled Assets Relief Program (TARP) and over immigration, which have split the Republican Party. He also asks if populist conservatives and business conservatives can ever truly get along—and notes ways in which the Supreme Court has been surprisingly supportive of the populists.

What Obama Should Say to the Nation

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Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

The Debt Ceiling Crisis Reveals a Constitutional Gap: How to Choose Among Unconstitutional Options

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Justia columnist and Cornell law professor Michael Dorf comments on what may happen if the debt-ceiling deal that President Obama announced on Sunday, August 31, is somehow derailed—or if (as is almost certain to be the case) future Presidents face constitutional-law issues that are philosophically similar to the one President Obama may have narrowly avoided here. In discussing the debt-ceiling issue and its constitutional dimensions, Dorf describes the trilemma the President may face; raises the question whether the constitutionality of a measure must be an either/or proposition or if there are intermediate options of a measure's being, say, “very unconstitutional” or “a little unconstitutional”; and describes America’s historic hostility to balancing different constitutional values against one another.

The Constitutionality of Senator McConnell’s “Last-Choice Option” for Averting Default

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Justia columnist and Cornell law professor Michael Dorf weighs in on the debate over whether Senator Mitch McConnell’s plan to prevent the federal government from defaulting on its obligations is constitutional. Dorf explains McConnell’s plan and analyzes three possible constitutional objections to it, concluding that none of these objections is, in the end, persuasive. Indeed, Dorf suggests that the more closely one looks at the plan, the more clear it is that it should be a first choice among possible solutions.

Who Could Oppose a Level Playing Field? The Supreme Court, That’s Who

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Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court's recent, 5-4 decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. Dorf explains the Arizona campaign finance system at issue, which the Court struck down, and comments generally on the Court's approach to campaign finance, which he argues leaves loopholes that millionaire candidates can easily exploit. Dorf also explains the difference between "leveling up," where less wealthy candidates receive public money, and "leveling down," where wealthier candidates are limited in what they can spend – and notes how the Court has ruled on both approaches to campaign finance.