Cornell law professor Michael C. Dorf explains why President Trump can unilaterally undermine NAFTA but cannot act to replace it without help from Congress. Dorf distinguishes treaties from “congressional-executive agreements” (NAFTA is an example of the latter), and he points out that any new agreement Trump seeks to enter with Canada and Mexico that differs in any substantial way from NAFTA can only become effective upon the passage of new legislation by Congress.
Cornell law professor Michael C. Dorf comments on the recently publicized memorandum Brett Kavanaugh wrote in 1998 in the course of his work for Independent Counsel Kenneth Starr, who was conducting the investigation of President Bill Clinton. Dorf points out that the sexually explicit questions Kavanaugh proposed in his memo should have been ruled inadmissible under applicable procedural rules. Inspired by Kavanaugh’s own line of questioning, Dorf concludes by proposing a question that he calls upon a senator to ask Judge Kavanaugh during his nomination hearing.
Cornell law professor Michael C. Dorf describes why he chose not to join the 72 other former law clerks of Justice Anthony Kennedy who signed a letter urging the confirmation of Judge Brett Kavanaugh. Dorf explains that the letter is at best misleading, and he argues that while a norm of deference may be preferable, that norm no longer exists, and deference to the president’s choice in this age of extreme polarization would amount to unilateral Democratic disarmament.
Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.
Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.
Cornell law professor Michael C. Dorf condemns the Supreme Court’s 5–4 decision upholding President Trump’s travel ban but describes a few silver linings that the ruling contains. Specifically, Dorf points out that the majority left open the possibility of future litigation challenging allegedly unlawful border policies, explicitly overruled its decision in Korematsu v. United States (which upheld the internment of Japanese Americans during World War II), denounced President Trump’s anti-Muslim statements, and served as a clear reminder that We The People can and should hold our elected official accountable for enacting or supporting abominable policies.
Cornell law professor Michael C. Dorf argues that the form of originalism typically espoused by scholars—in which constitutional interpretation aims to recover the original public meaning of the text—often ends up being abused in practice. Judges and justices borrow the respectability of public meaning originalism to justify a generally discredited form of originalism that seeks answers in the framers’ and ratifiers’ intentions and expectations. To illustrate this point, Dorf points to Justice Gorsuch’s recent dissent in Sveen v. Melin, which looks not to the text of the Contracts Clause but to what Justice Gorsuch inferred the framers and ratifiers intended and expected.
Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.
Cornell University law professor Michael C. Dorf discusses a statement by AT&T CEO Randall Stephenson calling his company’s decision to hire Donald Trump’s personal lawyer Michael Cohen “a big mistake.” Dorf describes under what circumstances AT&T’s hiring of Cohen would amount to a crime, and under what circumstances his hiring would not only be legal but a corporate obligation. As Dorf explains, the proper classification of the decision requires more information than the public currently has.
Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.
Cornell University law professor Michael C. Dorf comments on an exchange during the confirmation hearing of Wendy Vitter, whom President Trump has nominated for a federal district court judgeship, in which Vitter declined to answer whether she thought Brown v. Board of Education was rightly decided. Dorf points out that Vitter’s refusal to answer that question may have been an attempt to avoid further scrutiny about her views about abortion but also served to inadvertently acknowledge what conservatives routinely deny—that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.
Cornell University law professor Michael C. Dorf writes a tribute to renowned Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit, who passed away last week. Dorf, who served as law clerk to Judge Reinhardt, extols the late judge’s principled commitment to serving justice without breaking rules and his unusual ability to bring both empathy and reason to everything he did.
Cornell University law professor Michael C. Dorf considers whether, in protest of the Supreme Court’s recognition of the constitutional right to same-sex marriage, states can “get out of the marriage business” altogether. Dorf explains that abolishing marriage for everyone likely poses no equal protection issues, and points out some interesting and unique characteristics about marriage as a fundamental right.
Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.
Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.
Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).
Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.
Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.
Cornell University law professor Michael C. Dorf considers whether the new tax law, which disproportionally affects “blue” states as compared to “red” states due to changes to the deductions for state and local taxes (SALT), is unconstitutional. Dorf explains some of the possible arguments against the law but ultimately concludes that due to difficulties of proof, courts probably won’t end up ruling that the SALT deductibility cap violates the First Amendment or a core principle of federalism.
Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.