Analysis and Commentary on Government
Eight Possible Outcomes in the Federal Election

Cornell Law professor Michael C. Dorf analyzes the eight possible outcomes of today’s U.S. federal elections (based on whether Democrats or Republicans win control of the presidency, Senate, and House) and their implications for governance. Professor Dorf contrasts how unified government enables major legislation with how divided government limits policy changes, while emphasizing an asymmetric risk: Republican control of even one chamber could enable them to challenge a Harris victory or force a debt ceiling crisis, making Democratic control of at least one chamber essential for a potential Harris presidency to function.

The Kavanaugh Investigation: A Preview of Autocracy Under Project 2025

Lauren Stiller Rikleen examines Project 2025’s proposals for presidential power in light of Senator Whitehouse’s report “Unworthy of Reliance,” which details how the Trump administration constrained the FBI’s 2018 supplemental investigation into sexual assault allegations against Supreme Court nominee Brett Kavanaugh. Ms. Rikleen argues that the Kavanaugh confirmation process, where the White House secretly limited the FBI’s investigation while publicly claiming it had “free rein,” serves as a real-world example of how Project 2025’s vision of presidential control over independent agencies has already been implemented and threatens American democracy.

Who Knew? Trumpian Fascism Would Be as Bad for Our Pocketbooks as for Our Liberty

Former federal prosecutor Dennis Aftergut discusses the potential economic and institutional dangers of a second Trump presidency, drawing parallels between authoritarian kleptocracies throughout history and Trump's demonstrated patterns of behavior. Mr. Aftergut argues that Trump’s return to power would threaten not only democratic freedoms (as warned by former officials like General John Kelly) but also Americans’ financial well-being through systemic corruption and self-enrichment, with no remaining “guardrails” of principled advisors to constrain such behavior.

Why the Supreme Court’s Decision in Garland v. Cargill Regarding Rifle Bump Stocks Is Off Target

Retired UC Berkeley Law professor Jan Vetter discusses the Supreme Court’s decision in Garland v. Cargill, which invalidated a regulation classifying bump stocks as machine guns, and examines the Court’s approach to statutory interpretation. Professor Vetter argues that the Court’s majority, led by Justice Clarence Thomas, took an overly narrow and literal interpretation of the statute, neglecting to consider legislative intent and the broader purpose of the law, and he suggests that judges should act more as partners with the legislature in interpreting statutes to achieve their intended policy goals.

Is the Eighth Circuit Ruling the End of the Road for Student Debt Forgiveness?

Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Neil Gorsuch’s Faux Populist Lament

Amherst professor Austin Sarat discusses Supreme Court Justice Neil Gorsuch’s newly published book Over Ruled: The Human Toll of Too Much Law and his recent public statements criticizing excessive regulation. Professor Sarat argues that despite Gorsuch’s attempts to present himself as a champion of ordinary Americans, his judicial record and conservative stance on federal regulations suggest that his book’s message should be viewed skeptically, as reduced regulation often benefits powerful interests at the expense of workers, the disabled, and environmental protection.

A Deep Dive Into Project 2025’s Plan to Subvert the Rule of Law and Use the Department of Justice as an Instrument for Political Oppression

Criminal defense attorney Jon May examines Project 2025, a plan developed by conservative organizations to overhaul the Executive Branch, with a focus on its potential impact on the Department of Justice under a second Trump administration. Mr. May argues that Project 2025 is a roadmap for subverting the rule of law and transforming the DOJ into an instrument of political oppression, warning that its implementation would lead to authoritarian control, the politicization of law enforcement, and a threat to democratic principles.

Debate Moderators Should Ask Both Candidates About Political Violence

Amherst professor Austin Sarat discusses the current state of political violence in the United States, focusing on recent polls, statements from political leaders, and the impact on public officials. Professor Sarat argues that there is an alarming asymmetry in the acceptance of political violence, with MAGA Republicans more likely to endorse it; he calls for addressing this issue through education, electoral efforts, and legal accountability, while urging presidential debate moderators to question candidates on this critical topic.

Is Criminal Prosecution Destined to Become a Regular Tool of Political Combat in the United States?

Amherst professor Austin Sarat discusses the reactions of former President Trump and his allies to his conviction in the New York hush money trial, including their claims that the prosecutions against him are politically motivated and their threats to retaliate with prosecutions against Democrats if Trump is re-elected. Professor Sarat argues that these false allegations and threats represent a dangerous escalation in the MAGA campaign to discredit the rule of law and turn criminal prosecution into a tool of political combat, which would undermine fundamental freedoms and allow future presidents to target individuals based on their political views rather than actual crimes committed.

Justice Kagan’s Intriguing Concurrence in This Month’s Consumer Financial Protection Bureau Case

UC Davis Law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd., which upheld the constitutionality of the CFPB’s funding scheme, and examines the role of “history and tradition” in the Court’s constitutional jurisprudence. Professor Amar argues that while relying on post-enactment traditions to interpret the Constitution raises complex questions, especially in the context of originalism, such traditions may be more defensible when determining the scope of individual rights as opposed to structural provisions like separation of powers and federalism.

This Country’s Legal and Political Institutions Are in Trouble, and Trump Likes It That Way

Amherst professor Austin Sarat discusses former President Donald Trump’s recent attacks on the legal system and Congress, highlighting how his rhetoric exploits and exacerbates the American public's growing mistrust and disillusionment with these institutions. Professor Sarat argues that even if Trump is defeated in the upcoming election, the U.S. must address the underlying issues causing this vulnerability in order to restore public confidence and ensure the survival of American democracy in the face of Trumpism.

Restoring Confidence in Elections: The ALI’s Timely Statement on Ethical Standards

James F. McHugh, a retired Massachusetts Appeals Court Justice, comments on the American Law Institute (ALI)’s recently released Statement entitled “Ethical Standards for Election Administration,” which seeks to help election administrators understand and agree on basic ethical principles for implementing election laws, in light of the contentious 2020 Presidential Election and concerns about the upcoming November 2024 election. Justice McHugh points out that ALI’s report provides a set of common principles and a shared national vocabulary for ethical election administration, emphasizing adherence to the law, protection of election integrity, transparency, impartiality, personal integrity, ethics, and professional excellence, with the goal of increasing public confidence in the impartial administration of elections.

Who Trusts the Intelligence Community?

Cornell professor Joseph Margulies discusses the issue of bias in the U.S. Intelligence Community (IC) and the need for research into public trust in the IC, particularly in the current “post-truth” era. Professor Margulies argues that while existing research suggests broad public support for the IC, more comprehensive and nuanced research is needed to understand how the current partisan and “post-truth” environment may be eroding trust in the intelligence function, and that the Department of Defense should commission such research to inform its understanding of and response to this issue.

If and When American Democracy Dies, Young People May Be to Blame

Amherst professor Austin Sarat observes that in the United States, democracy faces assaults from MAGA extremists led by Donald Trump and, to a lesser extent, the illiberalism of the extreme left, with a notable shift in attitudes among young people who are less attached to democracy compared to older generations. Professor Sarat argues that the deepening political divide, along with the disillusionment of young people with democracy’s perceived failures in addressing issues like social justice and racial equality, poses a significant threat to the future of democratic governance in the country.

Fox News Host Greg Gutfeld Says the Quiet Part Out Loud: Right-Wingers Prefer Bullets to Ballots

Amherst professor Austin Sarat describes how Fox News personality Greg Gutfeld has escalated right-wing attacks on American democracy by suggesting that elections are futile and calling for civil war as the only solution to the country's problems. Professor Sarat warns that Gutfeld’s rhetoric, unrepudiated by Fox News, poses an urgent threat to democracy and calls on the media and political leadership to educate the public on the dangers of such a mindset.

Mr. Menendez is Presumed Innocent. Senator Menendez is Not.

Cornell Law professor Michael C. Dorf discusses the indictment against New Jersey Democratic Senator Robert Menendez, who is accused of accepting bribes to influence foreign relations and other matters. Professor Dorf acknowledges the legal presumption of innocence in a criminal trial setting but argues that due to the ethical responsibility Senators have towards their constituents and the country, they are not entitled to the same presumption in their role, and the weight of the allegations and evidence against Menendez should prompt his resignation or expulsion from the Senate.

Five Under-the-Radar Stories to Keep Faith in Our Democracy

Former federal prosecutor Dennis Aftergut comments on five stories you might have missed that inspire continued faith in the functioning of our democracy. Mr. Aftergut suggest that when anti-democratic developments occur, citizens in a free society should never underestimate our ability to get things back on track by flexing our collective, pro-democracy muscle.

A Breach of Decorum

Cornell professor Joseph Margulies comments on the recent expulsion of two Democratic representatives from the Tennessee legislature after the representatives (along with one other) participated in a peaceful but disruptive protest on the House floor. Professor Margulies points out that Tennessee has a history of silencing Democratic voices through state-law preemption of local laws on matters including minimum wage, antidiscrimination law, restrictions on plastic containers, access to broadband internet, gun control, and more.

First, “Let’s Corrupt All the Lawyers”: Trump’s Pathway to Autocracy

Harvard Law professor emeritus Laurence H. Tribe and former federal prosecutor Dennis Aftergut comment on an order last week by Judge Beryl Howell of the U.S. District Court for the District of Columbia ordering former Trump lawyer Evan Corcoran to answer questions he had declined to answer in January before Special Counsel Jack Smith’s grand jury. Professor Tribe and Mr. Aftergut point out that lawyers are uniquely positioned to either defend democracy against tyranny or facilitate its downfall; Judge Howell’s order reaffirmed the DC district court’s commitment to the rule of law as our shield against tyranny.

Does President Biden’s Plan to End the COVID Emergency Affect Pending SCOTUS Litigation Involving Title 42 and Student Debt Forgiveness?

Cornell Law professor Michael C. Dorf considers whether the Biden administration’s announcement that it would end the COVID states of emergency in May affect pending Supreme Court cases involving immigration policy and student debt forgiveness. Professor Dorf explains why the news is unlikely to affect the outcome of the immigration case and, conversely, why it might affect the student debt forgiveness case.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more